HIGH COURT, ACCRA
Date: 22 MAY 1975
ABBAN J
CASES REFERRED TO
(1) Davies, In the estate of; Russell v. Delaney [1951] 1 All E.R. 920.
(2) Fuld, In the Estate of (No. 3); Hartley v. Fuld [1968] P. 675; [1966] 2 W.L.R. 717; [1965] 3 All E.R. 776; 110 S.J. 133.
(3) Pilkington v. Gray [1899] A C. 401; 68 L.J.P.C. 63, P.C.
(4) Dayman v. Dayman (1894) 71 L.T. 699.
NATURE OF PROCEEDINGS
RULING on an application to revoke the grant of probate and to contest the validity of a will on the ground that it was not attested to by two witnesses as required by law. The facts are stated fully in the ruling.
COUNSEL
E.D. Kom for the applicants.
C.E. Quist for the respondents.
JUDGMENT OF ABBAN J.
The present litigation concerns the will of one Emmanuel Clement Kotei alias Emmanuel Clement Dsani Kotei (deceased). The deceased may, hereinafter, be referred to as Clement Kotei. The will in question was executed on 13 March 1969, and the testator, Clement Kotei, died at Osu on 9 May 1973.
The executors named in the will were Mr. Justice Nii Amaa Ollennu, Daniel Alfred Badu Kotei and Ebenezer Isaac Afutu Kotei. Upon the affidavit of one of the two attesting witnesses (Enoch Korley Tawiah) that the will was duly executed and attested, and on the affidavits sworn to by each of the three executors stating inter alia, that the will was the “true and original last will and testament” of the testator and that they would “faithfully administer the estate according to the terms of the will,” the High Court, Accra, on 27 May 1974 granted probate in respect of the will to the said executors.
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It will be noted that the contents of the will were read to the members of the family of the testator by Mr. Sagoe-Jeffrey, the senior registrar of the High Court, Accra, before steps were taken by the executors to obtain the probate. No caveat was filed against the will. But on 24 July 1974, that is, some two months after the will had been admitted to probate, four daughters of the testator, namely, Dina, Rebecca, Eva and Agnes Kotei, filed the present application challenging the formal validity of the said will of their late father. The three executors are the respondents in the application.
In the application the applicants asked for an order revoking the grant of probate and to declare the will null and void on the ground that the will was not in fact executed by their father in the presence of the two attesting witnesses as required by law. This allegation was set out in some detail in the following paragraphs of their affidavit in support of the application:
“(5) That the said will was not executed in due form of law as the purported signature of the said deceased person in the said will was not witnessed by two witnesses as required by the law governing the due execution of wills.
(6) That Enoch Korley Tawiah whose name appears in the said will as having signed as one of the two attesting witnesses to the purported signature of the said deceased person did not in fact sign the said will as an attesting witness thereof or at all.
(7) That we are advised by counsel and verily believe the same to be true that as the purported signature of the said deceased person was not witnessed by two attesting witnesses the purported will is invalid and probate ought not to have been granted with the said will annexed.
(12) That we therefore make this affidavit praying that the grant of probate with the purported will of the said deceased annexed be revoked…”
Having regard to the serious nature of these allegations the court, apart from the affidavits filed by the parties, agreed to take oral evidence. The applicants did not themselves give evidence but put forward Enoch Korley Tawiah as their only witness. This Tawiah was the person mentioned in paragraph (6) of the applicant’s affidavit referred to above. He was also the very person who swore to an affidavit in support of the application for probate. In his evidence in the present proceedings, Tawiah denied ever witnessing the signature of the testator. He said he knew the testator who once married his (Tawiah’s) aunt but he did not during the lifetime of the testator attest and subscribe any will made by the testator. He further stated that he had never seen the will, exhibit A, before and the first time he saw it was when it was shown to him in open court during the hearing of the present application. I will here set out the most important portion of his evidence-in-chief:
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“I am a secretary receiver of the Produce Buying Agency Ltd. I live at Asamankese. I knew late Emmanuel Clement Kotei. He married my aunt. I did not witness a will made by the late Kotei. On the will [tendered as exhibit A] I see ‘E.K. Tawiah, Produce Buyer Asamankese. ’ That is not my handwriting. I do not know who signed the other signature. The signature was not made in my presence.”
The respondents also led evidence to prove that the allegations as contained in the applicants’ affidavit and the evidence given by Tawiah were not true. The evidence of Mr Ebenezer Isaac Kotei, one of the respondents, showed that the respondents, as executors, on 23 May 1974 together with Tawiah, met in the house of Mr. Justice Nii Amaa Ollennu. Also present at the meeting were Messrs. Amoo-Lamptey, C. E. Quist (both legal practitioners), Sagoe-Jeffrey (who was the senior High Court registrar, Accra, at the material time) and Mr. Justice Ollennu. This witness said in the sitting room of Mr. Justice Ollennu, Mr. Sagoe-Jeffrey produced the original will of the testator. It was examined by all those present, including Tawiah; and Tawiah after he had checked his signature in the attestation clause and after he had satisfied himself that it was he who signed the will as one of the attesting witnesses, he swore to an affidavit to the effect that there was due execution of the will. The said affidavit, which was tendered in the present proceedings as exhibit 1, was the one on which the executors relied when applying for the probate.
The evidence of Mr. Sagoe-Jeffrey corroborated that of Mr. Ebenezer Isaac Kotei as to what took place in the sitting room of Mr. Justice Ollennu. Mr. Sagoe-Jeffrey said after Tawiah had read through the will and acknowledged his signature in the attestation clause of the will, he was given the affidavit, exhibit 1. Tawiah read through the affidavit and after he had accepted the contents of the said affidavit as true, Mr. Sagoe-Jeffrey said he swore him on the Bible. Tawiah then signed the affidavit in the presence of Messrs. Sagoe-Jeffrey, Amoo-Lamptey, C. E. Quist and of all the executors, including Mr. Justice Ollennu. In the course of his evidence, Tawiah was given a plain sheet of paper to write thereon specimens of his signature and also the words “E. K. Tawiah, Produce Buyer, Asamankese.” These words can be found in the will and just in front of the signature which the respondents contended is in the handwriting of Tawiah. The said sheet of paper was tended in evidence by the respondents. It was not objected to and was accepted as exhibit 2. If the evidence of Tawiah is true then the executors must have obtained probate of a will of which the signature of one of the attesting witnesses was forged. So that the whole case, as I see it, depends largely on the credibility of Tawiah.
It is the fundamental requirement of the law relating to wills that the person propounding the will must satisfy the court that the testator was of sound and disposing mind and memory, and had full knowledge and appreciation of the contents of the will. The other equally important requirement is that the court must be satisfied that the will was duly executed. It is the latter requirement which has been called in question
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in the present proceedings. That is, the applicants are contending that the will is not formally valid.
The formal validity of a will depends upon whether it complied with the law as it existed at the time when it was executed. In this particular case the will was executed on 13 March 1969. At that time the Wills Act, 1971 (Act 360), had not come into existence. Thus the law applicable should be the English Wills Act, 1837 (7 Will. 4 & 1 Vict., c. 26), even though the latter enactment has since 1 June 1971, ceased to apply to Ghana: see section 19 (1) of the Wills Act, 1971 (Act 360). Section 9 of the English Wills Act, 1837, is the section which is relevant to this case. That section requires that a will must be in writing and must be signed “at the foot or end thereof by the testator, or by some other person in his presence and by his direction.” The section further provides that the signature “shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time” and the said witnesses “shall attest and shall subscribe the will in the presence of the testator.” It is important that the witnesses should subscribe after, and not before, the testator has signed it or has acknowledged his signature. This was emphasised in the case of In the Estate of Davies; Russell v. Delaney [1951] 1 All E.R. 920.
It is obvious from the foregoing that the requirements of proper form and due execution are no mere technicalities. They form part of the substantive law and they are “the first line of defence against fraud upon the dead”: see In the Estate of Fuld (No. 3); Hartley v. Fuld [1968] p. 675 at P. 719. The will in dispute herein was type-written and it is evident that the testator, Clement Kotei, signed it as his final will.
There is an attestation clause at the foot of the will which clearly states that the testator signed it in the presence of two persons, Nunoo and Tawiah, and that the said two persons in the presence of the testator also subscribed their names as attesting witnesses and in the presence of each other. There is therefore no doubt whatever that the will itself, on its face, is perfectly regular as regards all formalities of signature and attestation. In the circumstances, the maxim omnia praesumuntur rite esse acta must apply. Where a will appears to be duly signed and witnessed, as in the instant case, it is the presumption of law that the execution was duly carried out according to the requirements of the Wills Act, 1837, and strong evidence will be required from those who alleged the contrary to show that it may not have been properly executed and thus shift the burden of proof on to the persons propounding it.
The applicants relied mainly on the evidence of Tawiah to rebut the legal presumption. It must be made clear that nobody disputed the signature of the testator as found on the will. The other attesting witness, Nunoo, was not called but there was no evidence that he also denied having attested and subscribed the will. I have critically and closely examined the signature in the attestation clause which Tawiah disputed together with the specimen signature of Tawiah on the sheet of paper (exhibit 2) as well as Tawiah’s signature in the affidavit, exhibit 1, and I find that all those signatures are in fact in the handwriting of one and
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the same person. The signature in exhibit 2 was signed by Tawiah in open court and during the hearing. He admittedly signed the affidavit, exhibit 1. So that the signatures on those two exhibits, I and 2, cannot be in dispute. Comparison of those signatures with that in the attestation clause of the will clearly revealed that they were the same. I am convinced that it was Tawiah who signed the will as the second attesting witness and he wrote “E. K. Tawiah, Produce Buyer, Asamankese” after he had so attested and subscribed the will. Tawiah’s story that he never signed the will is false and I reject it.
In the affidavit, exhibit 1, Tawiah swore as follows:
“(1) That I am one of the two attesting witnesses to the last will of Emmanuel Clement Kotei alias Emmanuel Clement Dsani Kotei late of Accra, deceased, the said will being now hereto annexed bearing date 13 March 1969.
(2) That the testator executed the said will on the day of the date thereof, by signing his name at the foot or end thereof and the same now appears thereon intending the same for his final signature to his will in the presence of me and of Albert Akreshie Nunoo the other subscribed witness thereto both of us being present at the same time, and we thereupon attested and subscribed the said will in the presence of the testator.”
Tawiah, in the course of his evidence, was confronted with the contents of the said affidavit as quoted above. He was asked why he swore to those facts and signed that affidavit if the signature in the attestation clause of the will was not his, and if in fact the testator never signed the will in his presence. Finding himself in a tight corner, all that Tawiah could tell the court in answer to that question was that he signed the said affidavit, exhibit 1, without reading it, and that it was given to him to sign when he was outside the house of Mr. Justice Ollennu and at a time he was about to enter a waiting car. I find this explanation extremely remarkable, because Tawiah looked quite an intelligent fellow and he impressed me as an austere person who would not allow any one to press anything down his throat without his consent. In any case, I do not believe that Mr. Sagoe-Jeffrey, who had been a senior High Court registrar for many years and had had considerable experience in probate matters, would just push such an important affidavit to Tawiah to sign without first swearing him and without making sure that Tawiah was aware of its contents.
I must say that Tawiah did not strike me as either a complex or difficult character to assess. I found him to be garrulous and a most unsatisfactory witness. He is a very dishonest person who seemed to have great delight in lying; and I am of the view that his evidence (that he did not sign the will as one of the attesting witnesses and that the affidavit, exhibit 1, was signed by him without having read its contents) was nothing but a figment of twisted imagination. I have already found that the will in dispute appears, ex facie, to be regular and so the presumption must be in favour of due execution; and it will therefore not be right to allow the incredible evidence of Tawiah to rebut the said presumption. Indeed the
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courts have always been very slow in allowing the unreliable evidence of attesting witnesses to rebut that presumption of law. Here I will refer to two interesting cases.
The first is Pilkington v. Gray [1899] A.C. 401, P.C. In that case probate of the will was granted on the evidence of the two attesting witnesses. In a subsequent proceeding to contest the validity of the said will, one of the two attesting witnesses retracted his evidence and, in effect, swore that the signatures of the witnesses and that of the testator were all forgeries. The other attesting witness was not called, and his absence was satisfactorily explained. The court, finding that the evidence of the attesting witness was incredible, rejected it and confirmed the probate. The second case is Dayman v. Dayman (1894) 71 L.T. 699, in which the plaintiff instituted an action against the defendants for the revocation of probate which the court had granted in respect of his father’s final will, his ground being undue execution. At the time the will was executed other persons, apart from the two attesting witnesses, were present but they all died before the suit was brought. So that the only persons who could speak to the due execution were the two living attesting witnesses—one Dr. Miller and a Mr. Thomas Harris. One of them (Dr. Miller) had earlier on, and before the action was instituted, sworn to affidavits in which he stated that the will was properly executed according to law. But at the trial he and the other attesting witness, Thomas Harris, gave evidence to show that the will was not signed by them in the presence of the testator. In fact Thomas Harris even went to the extent of contending that the signature “Thomas Harris” in the attestation clause was not in his handwriting. The court, not being convinced that those two attesting witnesses had told the truth, or at least, not being sure that their memory could be trusted, refused to allow their evidence to rebut the presumption of the execution, and gave judgment for the defendants in favour of the will. In reading his judgment Barnes J. at p. 701 said:
“That raises a question, which has very often been before the courts, as to whether or not, where a will itself is regular on its face, or, as in this case, is fairly regular, the memory of the witnesses who have spoken to the attestation is to be trusted so as to show that the will was not properly executed in accordance with the requirements of the statute.”
The learned judge, after thoroughly reviewing the evidence before him, continued at pp. 702-703 as follows:
“But the result was, that I felt I could not rely at all on Dr. Miller’s memory; and the more I trust the solicitor, the less can I trust the memory of the doctor . . . Whatever Dr. Miller has said, I cannot be sure that his recollection is right and Harris’s evidence differs almost entirely in most matters to which the doctor speaks, though they agree upon the point that the will was attested downstairs; while we have this remarkable state of things, that Harris, when examined upon
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commission, and being shown the original will, leads off with the extra-ordinary statement that the signature, ‘Thomas Harris,’ at the foot of the will, is not in his handwriting. I have no doubt whatever, and it is common ground, that Thomas Harris did, in fact, sign his name on this will, and that this is his signature . . . It would be most unfortunate, where the matter appears regular, though perhaps not in strict form, and where those witnesses are dead who could speak positively, and where eight or nine years have elapsed before any question is raised, that one should trust to the recollection of two witnesses who are clearly inaccurate in a great part of their evidence, and whose memory I do not think I can fairly trust. For these reasons I pronounce for the will . . .”
(The emphasis is mine.)
Nevertheless, the respondents’ witnesses—Messrs. Ebenezer Isaac Kotei and Sagoe-Jeffrey — impressed me as perfectly honest men and their evidence completely satisfied me that in the sitting room of Mr. Justice Ollennu, the original and final will of the testator was produced by Mr. Sagoe-Jeffrey; Mr. Justice Ollennu and the other executors examined it and found everything in order. The will was also given to Tawiah who, after examining it, admitted and acknowledged his signature in the attestation clause. Tawiah then read through the affidavit, exhibit 1. After he had accepted the contents of the affidavits as the truth and had been sworn on the Bible by Mr. Sagoe-Jeffrey, he signed the said affidavit. All this took place in the presence not only of the two legal practitioners — Messrs. Amoo-Lamptey and C. E. Quist — but also of all the executors, including Mr. Justice Ollennu.
I therefore find that the truth of the matter is what Tawiah voluntarily and unequivocally stated in paragraphs (1) and (2) of his affidavit, and which I have already set out above. I further find that the will expressed the true last testament of a free and capable testator. The testator, Clement Kotei, signed the will in the presence of Nunoo and Tawiah and both Nunoo and Tawiah were present at the same time when the testator signed the will. After the testator had appended his signature to the will Nunoo and Tawiah, in the presence of the testator and of each other, subscribed the will as attesting witnesses.
Considering the circumstances of the whole case, there is no doubt in my mind that Tawiah must have misled the applicants. The applicants are beneficiaries under the will in question. But it appears they somehow felt that they have been unfairly treated; and consequently they approached Tawiah after probate had been granted, in the hope that Tawiah might assist them to have the will declared null and void to enable them to take the whole estate which, according to them, would have come to them if their father had died intestate. As a matter of fact in paragraphs (2) and (3) of their affidavit in support of the application, they swore that their father who hailed from Labadi died at Osu “and by both Labadi and Osu customary law” they were “entitled as children to succeed to
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the deceased father’s estate together with all his others children on an intestacy.”
I have read through the will carefully, and I find that the estate consists of houses, cash, and other personal properties and the applicants were given cash gifts and interests in some of the houses. The will, which is an elaborate one, provided also for the other children as well as grandchildren, stepchildren, wives, nieces, nephews and other relations of the testator. The testator seemed to have made a fair distribution of his estate among all those he felt should benefit from his earthly possessions. Yet the applicants, not being content with what their father gave them, put forward Tawiah, a dishonest witness, to champion their cause. The late Clement Kotei did not intend to die intestate when he went through the form of will making, and if this court had not been vigilant Tawiah would have completely frustrated the wishes of the late Clement Kotei on earth.
This case illustrates, in a very striking way, the necessity of choosing reliable persons to attest a will. Very often testators try to choose trustworthy and responsible persons to be their executors. But it seems the majority of the testators are not very particular about the calibre of those whom they ask to attest and subscribe their wills. They are only concerned with seeing that the witnesses can read and sign their names and are of mature age. But not much thought is given to the question of the sincerity and trustworthiness of such witnesses. Testators cannot be blamed for that, because the law only requires that the attesting witnesses should be “competent.” But the present case has not only brought to focus but has also emphasised the need for greater care and vigilance on the part of would-be testators when choosing persons to attest their wills. The same precaution which is normally taken when selecting executors and trustees must be taken when picking such trustees. By all means persons who are “competent” in terms of law must be chosen as attesting witnesses. But in the interest of the would-be testator himself he must also see to it that the said witnesses are honest persons whose conscience would not permit them to deny having attested and subscribed the will after the testator has passed away.
On the evidence before me, I have come to the inescapable conclusion that the presumption in favour of due execution could not be rebutted by the applicants and it must therefore prevail. At any rate, I am of the opinion that the respondents have satisfactorily discharged the burden of proof of due execution and I therefore pronounce for the will in solemn form. In the circumstances, I hold that the court on 27 May 1974, rightly admitted the said will to probate. Accordingly, the application will be and is hereby dismissed.
I will now consider whether the costs of this application should be paid out of the estate. The principles upon which the court deals with costs at the end of a case are well known. Questions of costs are questions as to the exercise of the court’s discretion. But under normal circumstances costs will follow the event. However, in probate matters the costs to which the executors under a will, or other instrument which has been admitted to probate, are entitled are usually ordered to be paid out of
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the estate. But in the present case, I think the costs of the respondents, who are the executors of the will in dispute, must be borne by the applicants. The application was not only frivolous but was also speculative; and it would be wholly wrong, and even unfair to the other beneficiaries, to direct that the costs of the proceedings herein should be paid out of the estate.
I therefore order that the respondents’ costs, which I assess at 0120.00, must be paid by the applicants, jointly and severally.
DECISION
Application dismissed.
Costs to be borne by applicants.
S. E. K.
