IN RE ASIRIFI (DECD); ADUSEI AND ANOTHER vs. AGYEI AND ANOTHER [1999-2000] 1 GLR 571

NATURE OF PROCEEDINGS

PRELIMINARY OBJECTION by the caveators, two children of he[sic](1) deceased, to the application by the executors to be granted probate of the will on the ground, inter alia, that they, the caveators, had already obtained letters of administration in respect of the estate of their late father. The facts are sufficiently stated in the ruling of the court.

COUNSEL

Kofi Addo for the applicants.

[p.573] of [1999-2000] 1 GLR 571

Martin Amoyaw for the caveators.

JUDGMENT OF ADINYIRA J.

On 6 May 1998 Emmanuel K Adusei and Abraham Adusei applied for grant of probate of the will of the late Opanin Isaac Asirifi, the head and general superintendent of the Saviour Church of Ghana, as the executors and trustees named in the said will. Two of the children of the testator, namely Kwabena Agyei and Emmanuel Kofi Gyan, entered a caveat and filed an affidavit of interest claiming their father died intestate and that they had already applied for and been granted letters of administration in respect of their late father’s estate.

The applicants herein upon service of the affidavit of interest on them, subsequently filed on 1 October 1998 a motion on notice for the removal of the caveat and for the grant of probate on the main ground that Opanin Issacsic(2) Asirifi died leaving a will, a copy of which was deposited at the registry of the High Court and which was read to the family by the registrar. The caveators still filed an affidavit in opposition claiming that the document purported to be the will of their late father was not his will as after his death they conducted a search at the registry of the High Court, Koforidua to ascertain whether their father deposited a will there but the reply was in the negative.

At the hearing of the motion for probate, Martin Amoyaw, counsel for the caveators, raised a preliminary objection on two grounds which I am obliged to consider and rule upon. On 15 January 1999 I directed that I would like to hear further arguments on whether or not the deceased died testate as this point was raised in the affidavit filed in opposition by the caveators. This was to enable me to make the proper directives after giving my ruling on the matter. I accordingly, adjourned the case to 4 February 1999 for arguments.

Counsel for the applicants, Kofi Addo, argued that they made the necessary search at the registry of the High Court and discovered that the deceased died testate. This will was subsequently read to the family by the registrar. The applicants attached to their original application as exhibits A1, A2 and A3 the correspondences in support of the above. He also contended that the will, on the face of it, was properly signed by the testator and attested to by the two

[p.574] of [1999-2000] 1 GLR 571 witnesses. He contended finally, that no forgery has been alleged by the caveators.

Frank Poley, held brief for Amoyaw but prayed for adjournment for the latter to come and reply personally to the arguments put forth by Kofi Addo. The case was adjourned to 9 February 1999 for Martin Amoyaw to address court, but neither the parties nor counsel were in court at the time the case was called. I therefore adjourned it to today for my ruling. However, I am duty bound to consider the affidavit filed in opposition by the caveators. In this affidavit, the caveators contended that they made a search at the registry to find out whether their father deposited a will there but they received a negative response so they contended that the will is not that of their father. They, however, failed to support this assertion with a copy of the search and the response from the registry. I therefore dismiss this their contention as being untrue and a mere allegation. For on the original of the will before this court, it is clearly stamped on it that this will was deposited in the court registry on 24 September 1976. A check by this court in the register of wills shows clearly that the will was deposited by the testator himself on that date. Upon my examination of the will, everything seems regular on the face of it. Furthermore, one of the attesting witnesses, Emmanuel Kofi Adusei, the first applicant who is since deceased, swore an affidavit of witness in proof of due execution of the will.

On 8 February 1999 the caveators filed a supplementary affidavit in opposition, alleging for the first time that the will was a forgery. I am of the view that this affidavit is out of time as it was filed without leave of the court, and there is no proof of service on the applicants. But even considering it for what it is worth, I am of the view that this claim is an afterthought. For this will was not produced by the applicants herein nor any other person for this court to suspect any fraud. It was deposited at the registry by the testator himself nearly 23 years ago. It has therefore been in the safe custody of the registry ever since. I will therefore dismiss the objections raised to the validity of the will by the caveators as they are baseless. I am satisfied that the original of the will of the late Opanin Isaac Asirifi deposited at the High Court registry on 24 September 1976, on the face of it, is valid.

I will now consider the preliminary objections raised by counsel for the caveators. His first objection was that this application for [p.575] of [1999-2000] 1 GLR 571 grant of probate cannot be entertained by this court as letters of administration in respect of the estate of the deceased has already been granted on 13 January 1998. He argued that until this grant has been set aside or revoked, no subsequent application can be brought by the executors. He relied on section 67 of the Administration of Estate Act, 1961 (Act 63) which reads:

“67. Where administration has been granted in respect of any estate of the deceased, no person shall have power to bring any action or otherwise act as executor of the deceased person in respect of the estate comprised in or affected by the grant until the grant has been recalled or revoked.”

By ordinary interpretation of this section, it means that where letters of administration has been granted in respect of a deceased’s estate, no executor can act or bring any motion without first having the grant of letters of administration revoked. The revocation of the grant of letters of administration is therefore a condition precedent before any action such as the one before me for grant of probate can commence.

Counsel for the applicants in reply contended that he has had the grant of letters of administration revoked that very morning by the court which granted it. In fact, the hearing of this case was delayed as he was not in court early. With the revocation of the grant of letters of administration it would appear the objection is purely academic. However, from the wording of section 67 of Act 63 the objection is valid as it specifically states: “no person shall have power to bring any action … until the grant has been recalled or revoked.” (The emphasis is mine.) As said earlier, this is a condition precedent to be fulfilled before the applicants could be clothed with power to bring the action. So until the morning of 16 November 1998 when the letters of administration was revoked, the applicants herein had no power to bring this application for grant of probate on 1 October 1998. I therefore have no option but to uphold this objection.

The other ground of objection is that the second applicant, Abraham K Adusei, has no locus in bringing this application as he is not named as an executor in the will of the deceased. Counsel for the applicants in reply said that under article 27(c) of the constitution of the Saviour Church of Ghana the general superintendent of the

[p.576] of [1999-2000] 1 GLR 571 church is an automatic executor of the will of any deceased member of the church. He contended further that since the second applicant is the current head of the Saviour Church, he is automatically an executor of the will of the deceased. He argued further that under paragraph (2) of the said will the head of the Saviour Church is mentioned as a trustee.

The Wills Act, 1971 (Act 360) does not define who an executor is or how he may be appointed. In section 3 (1) of Act 360, it only states that any person of or above the age of 21 years and having capacity to enter into a contract may be appointed an executor of a will. In Osborne’s Concise Law Dictionary an executor has been defined as: “person named in a will whom the testator wishes to administer the estate.” In Stroud’s Judicial Dictionary (3rd ed) at p 1020 it is stated: “Executor is when a man makes a testament and last will and therein nameth the person that shall execute his last testament, then he that is so named is his executor.” In Halsbury’s Laws of England (3rd ed), Vol 14, at p 120, para 172 the definition of an executor is similar. It states: “An executor is the person appointed by will or codicil to administer the property of the testator, and to carry into effect the provisions of the will.” At page 122, para 178 it is also stated: “The ordinary method of appointing an executor is for a testator to nominate a person in the body of his will by the express designation of executor.” The appointment must be contained in the body of the will. It is therefore the general practice that an executor is expressly appointed by name, eg Mr Kofi Mensah of Begoro or by designation or holder of an office, eg the Presbyterian minister of Begoro in the body of the will.

Counsel for the applicants argued that by the constitution of the Saviour Church the head and general superintendent is an automatic trustee of any member’s will. Under article 27 (c) of the constitution of the Savour Church of Ghana it is stated: “Any member of the Church may be appointed as TRUSTEE and EXECUTOR in addition to the General Superintendent or his lawful AGENTS.” By the phrase “in addition to the General Superintendent” it means any member of the church has to automatically appoint the general superintendent either as his sole executor or one of such if he desires to appoint more than one executor. However, it is my considered opinion that the appointment of the general superintendent as a

[p.577] of [1999-2000] 1 GLR 571 trustee by any member in his will should be expressly done to give effect to article 27(c) of the constitution of the church.

Looking at the will of the late Opanin Asirifi, two persons were named in paragraph (1) as the executors and trustees of the will, namely J K Darko and E K Adusei both of Osiem. The general superintendent was neither named as an executor nor as a trustee in the said paragraph. It is only in paragraph (2) that the head of the Saviour Church of Ghana was directed “to assist my trustees” to make an equitable distribution of his two houses at Osiem among his wives and children. So from the face of the will, the late Opanin Asirifi failed to expressly nominate the head of the Saviour Church as one of his trustees in accordance with the terms of article 27 (c) of the said constitution.

However, the legal position is that where a testator fails to nominate a person in express terms to be his testator, yet if upon a reasonable construction of his will it appears that a particular person has been appointed to perform the essential duties of an executor, such an appointment is sufficient to constitute that person an executor. The person so appointed is called an “executor according to the tenor”: see Halsbury’s laws of England (3rd ed), p 123, para 180. At page 124, para 180 it is further stated that: “A person may be an executor according to the tenor even in a case where other persons have been expressly appointed executors of the will.”

So in this particular case, although the head of the Saviour Church was not expressly nominated in the will of the late Opanin Isaac Asirifi, yet upon a reasonable construction of paragraph (2) of the said will, the testator in directing that the head should assist the named executors to share the houses among his wives and children, by implication made him an executor also. I accordingly hold that the second applicant, being the current head of the Saviour Church, is an executor by tenor. As the two other executors are dead, he is entitled to apply for probate as the sole executor of the will of the late Opanin Asirifi. I therefore overrule this objection.

However, since this present application was filed at a time when the letters of administration was subsisting, it cannot be entertained. I accordingly, direct that a fresh application for probate be brought by Abraham Adusei, head of the Saviour Church of Ghana.

DECISION

Preliminary objection upheld.

LSNA

Endnotes

1 (Popup – Footnote) [sic] same in original. 2 (Popup – Footnote) sic same in original.