IN RE OPOKU (DECD.); GOH vs. DONYINAH AND OTHERS [1973] 1 GLR 273

CASES REFERRED TO

(1) Milnes v. Foder (1890) 15 P.D. 105; 59 L.J.P. 62; 62 L.T. 498.

(2) Guardhouse v. Blackburn (1866) L.R. 1 P. & D. 109; [1861-73] All E. R. Rep. 680; 35 L.J.P. & M.

116; 14 L.T. 69; 12 Jur. (N.S.) 278; 14 W.R. 463.

NATURE OF PROCEEDINGS

APPEAL from the decision of the High Court, Accra, setting aside probate granted to the appellants. The facts are sufficiently set out in the judgment of Archer J.A.

COUNSEL

Ampofo for the appellants.

Dr. Ako Adjei for the respondent.

JUDGMENT OF ARCHER J.A.

Archer J.A. delivered the judgment of the court. On the 23 June 1967, the High Court sitting at Accra granted probate in respect of the will

[p.274] of [1973] 1 GLR 273 of the late Samuel Opoku to the three appellants who were named in the will. Subsequently the respondent who claimed to be the customary successor instituted proceedings to revoke the probate on the grounds:

(1) That the will was not executed in accordance with the Wills Act, 1837 (7 Will. 4 & 1 Vict., c. 26); and

(2) That the will was obtained by fraud as the deceased did not know or approve of the contents or alternatively the will was obtained by undue influence exerted by the appellants at a time when the deceased was seriously ill in hospital.

The respondent therefore prayed the court below to declare the will invalid and to grant her letters of administration. Lengthy evidence was adduced by the respondent and some members of her family in an attempt to substantiate the grounds of her claim. The three appellants and the two witnesses to the will also gave evidence and explained how the deceased took a piece of paper from under his pillow at the Agogo hospital and instructed the third appellant to write down his testamentary wishes. In a lengthy judgment the learned trial judge held that the will was invalid on the ground that the contents were written in indirect speech instead of direct speech and although the deceased’s signature appeared at the bottom, yet there was no evidence that the deceased intended that document to be his will.

The only legal point worth considering by this court was whether the reasons relied on by the court below for invalidating the will were tenable at law, and Dr. Ako Adjei, learned counsel for the respondents, was invited by the court to say whether he supported the reasoning of the court below. With exemplary candour, Dr. Ako Adjei conceded that he could not do so. We therefore allowed the appeal and we now give our reasons.

What is this unorthodox will that has generated this litigation? It is very short and it is quoted below verbatim:

“S. K. Owusu-Ansah, Nkoranza Training College, P.O. Box 28, Nkoranza, B/A.

HOUSE No. C360/11 .. .. £G750 From Mr. Ofosuhene (Elder brother Mr. Asante).

Receipt given by Mr. Ofosuhene and witnessed by Mr. Ampadu. Receipt prepared by Mr. Oduro.

Brother Opoku instructed that myself, Donyinah I and Donyinah II Akuma should be executors of his properties to look after the children and his father. One of the two houses, No. C 360/11 should be owned by Afua Serwah to look after the other children. The second house No. C 359/11 should be owned by the family. The trustees should see that the oldman is maintained. Adjoa Goh

[p.275] of [1973] 1 GLR 273 and Asubonten are the only family members eligible for his properties.

(Sgd.) Sam Opoku 30. 1. 1966.

W/to signature ⎯ (Sgd.) F. Bona, Chemistry Dept., University of Ghana, Legon, Ghana.

W/w/to signature ⎯ (Sgd.) Nana Effah Guaku, P.O. Box 601, Accra.”

There was evidence before the court below that the address on the right hand top was already on the paper when the deceased pulled it from under his pillow at the hospital. The third appellant, Nana Effah Guaku, who took the instructions and wrote them down and attested the document, also confirmed that apart from the address at the top he wrote everything above the deceased’s signature. The other attesting witness also gave oral evidence as to due execution of the will and confirmed that the deceased read the document before he signed it.

The only point here is whether the language used in the will is fatal. Usually, testators begin their will in the first person and end in the first person. But there is no law that direct speech should be the only language permissible. In the present appeal although the contents are couched in indirect speech there is evidence that the testator read what had been written and approved of the contents before he signed the document. The learned trial judge found as a fact that the signature below the contents of the will was that of the deceased Samuel Opoku. If the signature was therefore genuine and the evidence of the two attesting witnesses established that the deceased read the instructions written by the third appellant before signing, then the requirements of the Wills Act, 1837 (7 Will. 4 & 1 Vict., c. 26), had been fulfilled and the learned trial judge should have declared the will valid. But it appears, the court below was swayed by certain grammatical considerations when it said:

“Obviously, this inscription, written by the third defendant allegedly at the dictation of the deceased, does not appear in direct, but in indirect speech, and that inscription could not therefore, legitimately be signed by the deceased as being his own words, and in approval or adoption thereof as such.”

Then the reasoning continued as follows:

“It is clear that the apparent disposal of the properties was in the form of a reported speech. And the mere signature of Samuel Opoku at the end of this writing in ‘reported speech’ does not ipso facto import an acknowledgement by him that what he was signing was undeniably in accord with what he had dictated (as

[p.276] of [1973] 1 GLR 273 alleged) for the third defendant to write, and that, therefore, the contents of such writing by the third defendant did fall within his (deceased’s) intention and approval; there must be further evidence on the face of the alleged will (exhibit 5) in express words or by necessary implication, that the said Samuel Opoku was so signing his name after he had read the ‘speech’ made by him as recorded in the ‘reported’ and not in direct speech, and that he had approved that recorded ‘reported speech’ as falling within his intention. For I cannot uphold the relevant inscriptions as written instructions by the deceased to third defendant to make a will for him.”

It must be said right now that this reasoning by the court below does not represent the settled law on such matters. The established law is succinctly put by Sir James Hannen P. in Milnes v. Foder (1890) 15 P.D. 105 at p. 107 as follows:

“The true principle to be deduced from the authorities as stated in Williams on Executors, pt. i. bk. ii. Ch. 2, s. 3, appears to be that if there is proof, either in the paper itself or from clear evidence dehors, first, that it was the intention of the writer of the paper to convey the benefits by the instrument which would be conveyed by it if considered as a will; secondly, that death was the event that was to give effect to it, then whatever may be its form it may be admitted to probate as testamentary. It is not necessary that the testator should intend to perform or be aware that he has performed a testamentary act.”

In the present appeal, the evidence clearly established that on 30 June 1966, the third appellant and the first attesting witness visited the deceased at the Agogo hospital where the deceased had undergone a surgical operation and was recuperating. There was conversation during which the deceased expressed the fear that he might die of his ailment and so he would like to make provision for his children in case he should die. Thereupon, he removed a piece of paper from under his pillow and gave it to the third appellant, who is the paramount chief of Nkoranza. The third appellant wrote down the wishes of the deceased on this paper and handed it back to the deceased who read what was on it and then signed his name at the bottom. Thereafter, the third appellant and the other visitor, the first attesting witness, also signed their names, thus complying with all the formalities required by the Wills Act, 1837. Nevertheless, the court below condemned this paper not because it was couched in the poetic language of Milton or in the prose of Jonathan Swift but merely because the testamentary declaration did not commence with the usual “I, Samuel Opoku instruct that . . . “ What is the difference between this normal style on the one hand and “Samuel Opoku instructs that . . .” on the other, when the signature of the testator appears at the bottom to indicate that the writing represents his wishes?

[p.277] of [1973] 1 GLR 273

In this country, section 56 of the Legal Profession Act, 1960 (Act 32), defines a legal document to mean any document which confers any right or interest in property, but the definition expressly excludes a will. This means that a will is not a document which ordinarily requires specialist drafting. It follows that any person with capacity is at liberty to write down his testamentary wishes or to ask another to do so for him; and provided there is proof that the writer intended to confer benefits on others and that these benefits were to take effect upon the writer’s death, it does not matter whether the language used is patois or is couched in the indirect speech. The document will be upheld as a valid will.

In Guardhouse v. Blackburn [1861-73] All E.R. Rep. 680 at p. 684 Wilde J. re-stated the following propositions which had commended themselves to the Probate Court as rules which, since the Wills Act, 1837, ought to govern its action in respect of a duly executed paper:

“First, that before a paper so executed is entitled to probate, the court must be satisfied that the testator knew and approved of the contents at the time he signed it. Secondly, that, except in certain cases where suspicion attaches to the document, the fact of the testator’s execution is sufficient proof that he knew and approved the contents. Thirdly, that, although the testator knew and approved the contents, the paper may still be rejected on proof, establishing beyond all possibility of mistake, that he did not intend the paper to operate as a will. Fourthly, that, although the testator did know and approve the contents, the paper may be refused probate, if it be proved that any fraud has been purposely practised upon the testator in obtaining his execution thereof. Fifthly, that, subject to the last preceding proposition, the fact that the will has been duly read over to a capable testator on the occasion of its execution, or that its contents have been brought to his notice in any other way, should, when coupled with execution thereof, be held conclusive evidence that he approved as well as knew the contents thereof. Sixthly, that the above rules apply equally to a portion of the will as to the whole.”

In the present appeal, there was no evidence of mistake on the part of the testator and there was no proof that any fraud had been practised on the deceased, yet the court below took the view that there must be something more on the face of the document to indicate that the deceased acknowledged or intended what had been written to be his will. This additional evidence was uncalled for because the two attesting witnesses had testified as to the circumstances leading to the preparation and the execution of the document. Moreover, the tone or tenor of the contents of the paper, exhibit 5, can only be that of a testamentary document executed by someone who not only wanted to ensure that his children and old father were maintained after his death but also wanted to avoid squabbles in his family after his death. What

[p.278] of [1973] 1 GLR 273 further evidence was required to establish the testator’s intention? None whatsoever. If further evidence had been tolerated, it would have widened the field of inquiry beyond the limits set by the Wills Act, 1837, and here it is appropriate to quote the words of Wilde J. again in Guardhouse v. Blackburn (supra) at p. 685 for its illumination and felicity of expression:

“[I]f the court should allow itself to pass beyond proof that the contents of any such paper were read or otherwise made known to the testator, and suffer an inquiry by the oath of the attorney or others as to what the testator really wished or intended, the authenticity of a will would no longer repose on the ceremony of execution exacted by the Wills Act, 1837, but would be set at large in the wide field of parol conflict and confided to the mercies of memory. The security intended by the Act would thus perish at the hands of the court.”

In conclusion, the will of the late Samuel Opoku would have perished at the hands of the court below if the appellants had not come to this court. For the above reasons we had to rescue the will by allowing the appeal in order to preserve the solemn wishes of the testator.

DECISION

Appeal allowed.

S.O.