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JUDGMENT
T.K. ADZOE, J.S.C.:
Isaac Ottie alias Agya Atta died
on 10th August, 1982. He hailed
from Kenkase, Kwabre No. 3 in
Ashanti. He left behind a Will
dated 26th January, 1982. In the
Will he devised houses and farms
to his wife, children and other
persons. Among the devisees was
one Kwadwo Kwako, the appellant
herein. The testator in clause 7
of will devised six rooms in
House No. 54 Block 12 to the
appellant. Then in clause 13 of
the will the testator declared
that:
"Kwadwo Kwako is to inherit me
on my death and all the
properties which I have not
devised must go to him"
The Plaintiff/Respondent
hereinafter referred to simply
as the respondent did not
receive any gift under the will.
On 7th February, 1991 the
respondent describing himself as
"one of the principal members of
the Bretuo Family or clan of
Kenkase-Ashanti and a
beneficiary under the late Isaac
Ottie's said Will and who claims
to be interested in the
Residuary Estate of the said
Isaac Ottie" (deceased) took out
an originating summons at the
High Court in Kumasi asking for
an interpretation of clause 13
of the Will, quoted above. In
his opinion the devise to the
appellant in clause 13 of the
Will was made to him in his
capacity as customary successor
and therefore the appellant must
be deemed to take such
properties in trust for his
immediate family. The question
he posed for determination as
follows:—
"Whether or not having regard to
the devises in the last will of
Isaac Ottie, alias Agya Atta
(decd) dated 26th January, 1982,
more particularly the devises
made in clauses 7 and 13 of the
said Will the late Testator
Isaac Ottie by clause 13 of the
said will devised his Residual
Estate to Kwadwo Kwako
personally forever or the devise
was made to Kwadwo Kwako in his
capacity as the customary
successor who is to hold the
properties in trust for his
immediate family".
The respondent contended that
the deceased made the devise in
clause 13 to the appellant in
his capacity as the deceased's
customary successor because the
deceased knew that the appellant
would be his customary
successor. The Respondent
alleged that before the deceased
died he pleaded with the elders
of the Bretuo family that he
wished the appellant to be his
customary successor and when the
family discovered later on that
this wish was "repeated in the
last Will of the deceased" the
family honoured it and
accordingly appointed the
appellant as the testator's
customary successor. The
appellant denied this. In an
affidavit filed on 4th March,
1991 in answer to the
respondent's claims, the
appellant deposed in paragraphs
6 and 7 as follows:—
(6) I deny that my late uncle
Isaac Ottie before his death
pleaded with the elders of the
Bretuo family that he wished
that I be made customary
successor any time he died.
(7) That my appointment as the
customary successor was not due
to any request of my late uncle
but by concensus of the family
after my late uncle's death".
Accordingly the appellant
maintained that any properties
covered under the devise made in
clause 13 were gifted to him
personally for his own benefit.
It would appear that the
confusion which arose in the
minds of the respondent and some
members of the Bretuo family was
created by the word "inherit" in
the controversial clause 13.
What did the testator mean when
he said "Kwadwo Kwako is to
inherit me"?.
In his search for a proper
construction of clause 13, the
trial court decided to, and did
indeed, call the lawyer who
prepared the Will, in his own
words "to tell this court what
his instructions were in respect
of clause 13". The lawyer's
evidence was briefly this:
"My instructions were that
Kwadwo Kwako who was to inherit
him was to take his residuary
estate on condition that he
would take care of his wife. The
residuary estate was to go to
the family if he failed to look
after his wife. The wife of
Ottie died not long afterwards".
Upon this evidence the trial
High Court judge made the
following observations in his
judgment:
"Having heard counsel for both
sides, the court decided to fall
on the person who prepared the
Will to find out what the intent
of the testator was when he
(Testator) gave him
instructions. Fortunately, the
Will was prepared by a lawyer
who was readily available . . .
. . . . . . . .
From the evidence of the Lawyer,
Mr. Charles Kessie, it became
clear that the Testator intended
that the Residuary estate must
go to Kwadwo Kwako in his
personal capacity.
The condition upon which the
family was to have the Residuary
estate did therefore not
materialise.
Consequently, I hold that the
devise in clause 13 of the will
was to Kwadwo Kwako personally
and he took the same in his
personal capacity".
The respondent immediately
appealed to the Court of Appeal
on grounds that:
(a) The judgment cannot be
supported having regard to the
contents of the Deceased's Will.
(b) The trial judge erred in law
by receiving extrinsic evidence
and using the same to ground her
judgment.
When the appeal came up for
hearing the respondent argued
one additional ground which was
that "(1) the interpretation
given by the learned High Court
Judge sins against the spirit
and letter of the section 1 of
the Wills Act, 1971. Act 360".
Counsel argued that by clause 13
the Testator clearly showed an
intention to appoint the
appellant as his customary
successor, and that the
residuary estate was to go to
the appellant in his capacity as
customary successor "because the
testator gave all his properties
to children, wives etc.; and if
the appellant had not become
customary successor it would not
be proper for the residuary
estate to go to him as stated in
the Will".
Two of the three judges of the
Court of Appeal allowed the
appeal and one disagreed,
saying, "There is nothing in the
Will of Ottie, which indicates
that Kwadwo Kwako was to take
the residuary estate other than
in his own personal capacity".
The majority decision was based
on the argument that the
deceased testator had, during
his life time, requested that
the appellant should be his
customary successor and because
the family acceded and appointed
him as such successor the
appellant was "bound in law and
custom to hold and administer
the estate in trust for the
family and nothing more". They
made an order directing the
appellant to take the residuary
estate in trust for the family,
and "to administer and manage it
for and on behalf of the
family". This is why the
appellant has also appealed to
this court. His grounds of
appeal are:
1. That the judgment of the
Court of Appeal is wrong in law.
2. That the majority decision
that the 3rd
defendant/respondent/appellant
took those properties as
customary successor is wrong in
law.
3. That the majority of two
judges who decided that there
was ambiguity in paragraph 13 of
the Will of the testator have
erred in law.
We are to settle finally what
should be the proper
construction of clause 13 of the
will. My Lords, I agree with the
learned judges of the Court of
Appeal that the trial judge
erred in taking evidence from
the lawyer who prepared the
Will.
My understanding is that a Will
is a very special and solemn
legal document in which a person
declares his wishes as to how
his property should be
distributed, disposed of or
managed after his death; and the
greatest respect due to a
deceased person is, in my
opinion, to give effect to his
"last Will and testament" unless
there are compelling reasons
militating against doing so.
Annan J, as he then was, hit the
mark when he said that " policy
of the court is to give effect
to the last wishes of the
deceased and to uphold them
unless there are overriding
legal obstacles in the way” –
vide, Mensah (decd): Barnich v.
Mensah (1978) 1 GLR 226. In
accordance with this basic
principle, when the courts set
out to construe a Will what they
do is to look for the intention
of the testator as expressed by
him in the actual words used by
him, having regard to all the
other provisions in the will.
The intention which the will
itself declares either expressly
or by necessary implication is
what the courts would act upon.
The rule which enjoins the
courts to rely on the language
of the testator is normally
called the golden rule. There
are other rules, indeed many
rules, of construction which the
courts often rely on for
guidance. These several rules
have a common aim namely, to
direct the court towards an
objective standard of
construction and to exclude
evidence which seeks to provide
what is supposed to be the
actual intention of the
testator.
The rule is generally stated as
being this, that extrinsic
evidence of a testator's
declarations of intention as to
the meaning to be put on the
language used in his will is not
admissible as direct evidence of
his testamentary intention.
Under this rule evidence of
instructions given by the
testator for his Will and of any
declarations made by him as to
what he intended to do by the
Will is not admissible as direct
evidence of his testamentary
intention. Thus in the case of
Doe D. Hiscocks v. Hiscocks
(1839) 5 M & W 363 it was held
that evidence of the testator's
instructions for his Will and of
his declarations after its
execution which suggested that
he meant the gift for "Simon"
and not "John" was not
admissible. But instructions
given for the Will are
admissible in two situations
accepted as exceptions to the
general rule. Such instructions
may be admissible in cases of
equivocation, and as
circumstantial evidence under
the arm-chair principle. An
equivocation, sometimes also
called a latent ambiguity,
arises if the name or
description of the devisee or
the property mentioned in the
will turns out to fit two or
more persons or things and
applies unambiguously to all of
them; and under the arm-chair
principle the instructions are
admissible as contemporaneous
evidence that is explanatory of
the meaning which the testator
attributed to a word or a name.
In either case the instructions
are not admitted for the purpose
of gathering what the testator
intended to do, but strictly for
the purpose of identifying the
person or object he is
reasonably deemed to have had in
mind. The point is illustrated
in In re Ofner: Samuel v. Ofner
(1909) 1 Ch. 60. In that case
the testator appointed one Dr.
Alfred Ofner as one of his
executors and gave him a legacy
of 2001. Among other legacies he
also gave "to my grandnephew
Robert Ofner" 1001". The Court
of Appeal held that a document
was admissible, not as evidence
of intention, but as evidence to
assist the court to find out who
the "grandnephew" was whom the
testator had wrongfully
described as "Robert". With the
aid of the document the court
was able to conclude that it was
"Richard" who was mistakenly
referred to as "Robert" because
there was no "Robert" and Dr
Alfred Ofner indeed had a
brother called Richard whom the
testator was certainly referring
to, but erroneously thought he
was called Robert. As Farwell
L.J. put it in his judgment "...
any evidence is admissible
which, in its nature and effect,
simply explains what the
testator has written, and no
evidence can be admissible for
the purpose of showing what he
really intended". In the instant
case the provision in clause 13
does not require any extrinsic
evidence to assist the court in
construing it. The language of
clause 13 is fairly
straightforward and portrays no
hidden intentions.
Looking at the grounds of appeal
filed by the appellant, it is my
view that they all centre on
only one and the same theme,
namely, that the majority
decision that the appellant
herein should take properties
under clause 13 as customary
successor is wrong. What the
majority are saying is that if
any properties come to the
appellant under clause 13, they
belong to the testator's
immediate family and the
appellant will hold them as a
trustee or caretaker for and on
behalf of the said family.
The problem with clause 13 is
caused by the verb "inherit".
What is the import of the verb
"inherit" in the context of this
Will? The testator was a
Ghanaian and an Ashanti. But
this Will was prepared by a
lawyer who must be deemed to
have chosen his words with
professional insight. The words
he chose upon his instructions
are "to inherit me"; he did not
say "to be my customary
successor". There must be reason
for this. To "inherit", when
used in relation to succession
to property has as its primary
meaning the signification of
taking over the property of the
deceased owner. Its import is
that the inheritor is to acquire
the right and privilege to enjoy
any interest which the deceased
owner had in the property. This
meaning does not attach to the
position of a customary
successor in the customary law
system of inheritance. Whenever
the self-acquired property of a
deceased intestate is said to
become family property it is the
immediate family of the deceased
which takes the property.
Kwabena Bentsi-Enchill calls
that family the "inheriting
group": See Ghana Land Law: page
158. Ollenu puts it this way:
"it cannot be overemphasized
that it is the family and not an
individual who inherits and
becomes owner of the
self-acquired property of a
deceased member of the family".
Vide, the law of Testater and
Intestate Succession in Ghana,
page 229.
What this means is that the
family acquires title of
ownership to the property. But
the family as owner always, and
invariably, appointed a member
of the family called the
"successor" to administer the
property for and on behalf of
the family. This successor,
stricto sensu, does not have
title. He is variously described
as a trustee or caretaker of the
family with powers to control
and manage the property.
See Ahorklui v. Ahorklui:
reported in Ollenu, P.C.L.L.G.
page 212; Khoury & Ors. v.
Tamakloe (1950) DC. (Land)
1948-51. The successor at
customary law is not necessarily
linked up with the property of
the deceased. A person may die a
pauper and still have a
successor. This is because the
rationale behind the concept of
customary successor transcends
the administration of the
deceased's property. SKB Asante,
in his learned treatise on
property law in this country
observed that:
"Aside from his powers and
obligations in respect of the
deceased's estate, a successor
represents the person of his
predecessor in a very real
sense; indeed he may be
described as the extension of
the decedent's legal persona.
Thus the decedent's children
become the children of the
successor; so does the
predecessor's wife, in the
technical sense at least. A
successor may cohabit with the
predecessor's wife if the wife
so desires, but in any case, he
is under an obligation to
maintain and support her while
she remains unmarried. Where his
means permit, a successor is
expected to honour the personal
and moral commitments of his
predecessor" vide: Property Law
and social goals in Ghana 1844 -
1966, by S.K.B. Asante, pages
156 - 157.
The legal position therefore is
that a customary successor is
appointed even if there is no
property left behind by the
deceased intestate. The
corollary of this is that a
customary successor will not
administer and manage any
property on behalf of the family
if the deceased does not leave
behind any property for his
immediate family. It follows
therefore that if even we accept
the view that the testator in
this case did recommend the
appellant as his successor and
the family obliged after his
death, it does not follow as a
matter of course that the
appellant was intended to take
under clause 13 as a trustee or
caretaker of the family unless
it is evident that the testator
intended to give property under
the said clause 13 to the
family.
Until the Wills Act, 1971 (Act
360) came into force on the 1st
day of June, 1971, the making of
statutory Wills in this country
was governed by the English
Wills Act of 1837 which was part
of the common law of Ghana as a
statute of general application.
It did not impose any limitation
on testamentary freedom. The
tradition has not been changed
by Act 360. A testator can
therefore dispose of all his
property to whomsoever he
chooses. The only restriction
imposed by Act 360 is the
provision in section 13 of the
Act which gives certain
dependents of the deceased -
parents, spouse, child under 18
years - to claim a "reasonable
provision" for their needs out
of the estate of the deceased,
if the testator did not make
provision for them during his
lifetime or by the Will, and in
the opinion of the High Court
they are likely to suffer
hardship.
Indeed, there is no obligation
on the testator to leave
anything for his family. That is
the view I hold, looking at the
Wills Act (Act 360) and having
regard to the established right
of testamentary freedom which a
testator has; and if a testator
shows by his Will that the
family which under normal
circumstances would have had a
claim on his intestacy shall not
take under the Will, we must
give effect to his wish. We are
not entitled to indulge in any
wishful presumption that a
particular person or group of
persons is intended to be
provided for. The only guide is
the language of the Will. See
Turker v. Harrison (1832) 5 Sim
538 at page 543 where the court
said that there is no
presumption that anyone is to be
beneficiary except those named
or described in the Will as
such. In the instant case the
deceased's family is nowhere
mentioned in the Will, but the
Court of Appeal in the majority
judgment reasoned that because
the deceased suggested before
his death that the appellant
should be his customary
successor, and because the
family appointed the appellant
as the customary successor,
clause 13 which says that the
appellant should "inherit" him
must be construed to mean that
any devise to the appellant
under the said clause 13 must go
to the appellant in the
fiduciary capacity as caretaker
of the family. I have already
tried to show the distinction
between the "inheritor" and the
"successor" at customary law.
The argument by the two judges
of the Court of Appeal that the
deceased nominated the appellant
as his customary successor and
so the devise in clause 13 of
the Will cannot be said to be
specifically made to him does
not appear to me acceptable. In
the first place, the affidavit
evidence before the court does
not establish the claim that the
testator asked that the
appellant be made his successor.
The appellant denied that
allegation. The principal
members of the Bretuo family, in
what purports to be their Power
of Attorney to the Respondent
did not mention any request by
the testator that the appellant
be made his customary successor.
What they declared in the said
Power of Attorney is this: "We
belong to the immediate family
of Isaac Ottie alias Agya Atta
(decd). Agya Atta died testate
having made a Will dated
26/l/82. When Agya Atta died our
family met and appointed our
relative Kwadwo Kwako to inherit
the deceased according to
customary law".
This declaration is not the same
as the deposition made by the
respondent in his affidavit
supporting his summons. What he
deposed to in paragraphs 6 and 7
of the affidavit is this:
“6. Before his death the late
Isaac Ottie pleaded orally with
the elders of our Bretuo family
at Kenkase-Ashanti that he
wished Kwadwo Kwako would be
made his customary successor any
time he died. This 'WISH' the
family later discovered had been
repeated in the last will of the
deceased.
7. Thus at a family gathering
the family honoured the wishes
of the deceased Isaac Ottie and
appointed Kwadwo Kwako as the
customary successor of the late
Isaac Ottie".
The discrepancy in the
statements of the Principal
members of the family and the
respondent is glaring and leaves
considerable doubt on the
allegation that the deceased
wanted appellant to be his
customary successor; the doubt
is deepened in the face of the
denial made by the appellant.
Accordingly there was no
evidence before the trial court
that the deceased wanted the
appellant to be his customary
successor. That is not the same
as saying, as the majority of
the Court of Appeal would have
it, that the testator could not
appoint his customary successor
by his wWll. I concede that a
person cannot, as a general rule
of customary law, appoint his
own successor. The authorities
are many including Kwobah v.
Propaganda. Fide (1948) D.C.
Land (1948-51) 22; Frimpong v.
Anane (1965) GLR 354. And see
also Ollenu: The Law of Testate
and Intestate Succession in
Ghana (1966) page 95. Ollenu
explained that the rule applied
because the property would
become family property only
after the death of the member of
family and because upon his
death he would no longer have
any control over the land, it is
only reasonable that the family
as owner should be the right
authority to appoint the person
who should administer the estate
on its behalf. This means that
the customary law regarded any
attempt by the owner of property
to appoint his own customary
successor during his life time
as an encroachment upon the
rights of the family to appoint
a successor who is the family's
caretaker and owes a fiduciary
duty to the family. If the rule
is so understood then it appears
to me that it cannot be extended
to the case where the owner of
self-acquired property makes a
Will. The customary law rule
applies by operation of the
customary law upon intestacy. A
Will is intended to avoid
intestacy and the automatic
operation of the rules of the
customary law. And I think that
where the owner of property
makes a Will his freedom of
testamentary disposition must be
totally divorced from the
customary law, especially in a
situation where he does not give
any property to his family.
Therefore, where a person
directed in his Will that a
certain property should pass to
his family and be administered
by a named person as his
successor, the appointment was
held to be valid. Vide Nelson v.
Nelson (1951) 13 WACA 248. In
re Yena (1960) GLR 195 a Will
appointed a successor and the
court did not disapprove of it.
In what was accepted as a Will,
the deceased disposed of his
estate and appointed one Kwaku
Baffu to bury him, pay all his
expenses and to succeed him
according to Fante custom. The
High Court per Adumuah-Bossman
J. accepted Kwaku Baffu's
position as successor and
permitted Kwaku Baffu's own
customary successor to act as
the deceased's executor and take
out Letters of Administration.
He made the following revealing
observations:
"In this case we have the most
valuable evidence of Effuah
Fofie, mother-in-law of the
testator, who explained that the
circumstances how he (the
testator) came to summons people
together and directed the
document to be prepared to
provide for his burial on his
death and the succession to his
estate; ..."
It appears to me that where a
person is dealing with his
self-acquired property in a Will
and does not intend to leave
anything for his family, he must
be free to appoint any other
person to take control of his
property and direct him to act
as his successor; the rule that
a man cannot appoint his own
customary successor must be
confined to cases where the man
during his lifetime was in
charge of family property, and
should not be extended to
testamentary dispositions.
But this aside, it is my opinion
that clause 13, as I have
already indicated, does not
appoint the appellant as his
customary successor. He declared
the appellant to inherit him.
Having left nothing for the
family, the person to inherit
him in respect of any residuary
property should, according to
him, be the appellant, and in
his capacity as inheritor, the
appellant is to take all
properties not devised in the
Will.
The provision is simple and
clear. You may call it a general
disposition, or a residuary
disposition. Whichever it is,
Act 360 takes care of it in
sections 7(4) and 7(5).
Section 7(4) provides:
"A general disposition of the
movable or immovable property of
a testator shall include any
property to which he may have
the power to appoint in any
manner he may think fit".
Section 7(5) says:
"A general or residuary
disposition shall operate to
confer a power to exercise a
power of appointment, unless a
contrary intention appears from
the will".
A power of appointment without
any limitation or qualification
is equivalent to ownership.
Under a power of appointment the
devisee can appoint the property
to himself and so become
absolute owner of it unless a
contrary intention appears from
the Will. Section 13 of the Will
clearly professes to give the
appellant complete control over
anything that falls into
residue, and so must be taken as
intended to give the appellant
an absolute gift. As a general
rule an absolute gift cannot be
cut down except by clear words
and there are no such words in
clause 13 or any portion of the
Will. The contrary intention
required in section 7(5) must be
expressed or implied in the
Will. If the testator had
intended to grant his residuary
estate to the Bretuo family, he
would have said so; and if he
had wanted the appellant to take
any property on behalf of, or in
trust for, the Bretuo family, he
would have said so. In the
absence of any such express or
implied stipulation, it is not
warranted by the rules of
construction to say that clause
13 must be understood in the
sense advocated by the
respondent. I think it is wrong
for the Court of Appeal to
accept the respondent's
contention. The argument made by
the Respondent and accepted by
the Court of Appeal that the
testator made a specific devise
to the appellant in clause 7 and
would have been equally specific
in clause 13 if he had wanted
the appellant to take absolutely
has no impression on this case.
The said clause, as I have
indicated, is effective to gift
away any property to the
appellant. I do not know of any
rule of law which says that a
testator cannot make separate
devises to the same person in
different clauses in the same
Will. And there are no magic
words which alone can create an
absolute interest. Since the
devise in clause 7 does not in
any way conflict with the devise
in clause 13, I do not see any
difficulty in giving effect to
both. It was rather for the
testator to have made it clear
that he wanted the appellant to
take the residuary estate on
behalf of the family. I hold
that the Court of Appeal erred
in its conclusion on this point.
What is more, the Court of
Appeal failed to consider the
Intestate Succession Law and its
impact on succession in Ghana
today. If that court had
adverted its mind to the Law,
PNDCL 111, it would have
realised that the respondent
cannot succeed on his claim. The
Intestate Succession Law, 1985,
PNDCL 111, has changed the face
of the law on succession under
intestacy. The old law, prior to
PNDCL 111, was generally that
upon the death intestate of a
Ghanaian his self-acquired
property became family
property. The family appointed
a customary successor to
administer the estate on behalf
of the family. The system under
the customary law was fraught
with problem and anomalies and
offered very little protection
to the nuclear family—i.e.
husband, wife and children. Law
111 was passed to reverse the
situation. The Law does not
apply at all where the deceased
leaves behind a valid Will,
except in cases where the Will
does not cover all his property,
in which event, the deceased is
said to have died partially
intestate and Law 111 Will then
apply to that part of the
property which is not disposed
of in the Will — see section 2
of Law 111.
What we must remember is that
Law 111 itself provides the
scheme of distribution, giving
priority to the spouse and
children over all other
beneficiaries, reserving for the
wife and children household
chattels exclusively and also
houses (if any) according to the
size of the estate and the
number of the beneficiaries. In
that scheme of distribution only
a small fraction devolves in
accordance with customary law.
In a claim like the instant one
before us, therefore, I think
that it is necessary for the
respondent to identify the
particular property he is
claiming for the family assuming
that his claim that clause 13 of
the Will does not vest ownership
of the alleged property in the
appellant is acceptable. This is
because if that alleged
residuary property does not go
to the appellant, it would only
fall into intestacy and liable
to be distributed under Law 111;
it will not automatically
devolve on the family of the
deceased. To that extent I agree
with the appellant that the
judgment of the Court of Appeal
is wrong in law.
On the whole the majority
decision of the Court of Appeal
that the appellant is to take
the residuary estate in trust
for the family is erroneous and
not supported by any evidence;
and the order bearing on the
appellant to administer and
manage it on behalf of the
family cannot be allowed to
stand.
The appeal is accordingly
allowed. The judgment of the
Court of Appeal is hereby set
aside, and the judgment of the
High Court is restored.
BAMFORD-ADDO (MRS) J.S.C.:
I agree.
J. A. BAMFORD-ADDO (MRS)
JUSTICE OF THE SUPREME COURT
AMPIAH, J.S.C.:
I agree.
A. K. B. AMPIAH
JUSTICE OF THE SUPREME COURT
KPEGAH, J.S.C.:
I agree.
F. Y. KPEGAH
JUSTICE OF THE SUPREME COURT
LAMPTEY, J.S.C.:
I agree.
G. L. LAMPTEY
JUSTICE OF THE SUPREME COURT
COUNSEL
Mr. Victor Agudetse for
Appellant.
Mr. Yiadom Boakye representing
Opanin Kwadwo Baah.
gso*
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