RE ALHASSAN’S APPLICATION [1968] GLR 940

DIVISION: HIGH COURT, TAMALE

DATE: 22 OCTOBER 1968

BEFORE: EDUSEI J.

NATURE OF PROCEEDINGS

APPLICATION for letters of administration with will annexed. The facts sufficiently appear in the ruling.

COUNSEL

Applicant in person.

JUDGMENT OF EDUSEI J.

By his will, exhibit A, dated 19 September 1966, the testator left all his property to his grandson, Abdulai Mahama. Exhibit A is the kind of will usually referred to as a “home-made” will though this one was prepared on the instructions of the testator by a letter-writer whose ignorance about such an important document is apparent on the face of the said document. After making a gift of all his property to his grandson, the testator thumbprinted it and immediately after his thumbprint on the left-hand side of the will appears the word “witnesses” and underneath this, there appear two names: (1) Alhassan Alibaka, and (2) Zaratu Issah, who made their marks. Although there is no attestation clause there is no doubt that these two persons are the witnesses to the will, and Order 60, r. 26 (1) of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), states:

“If there is no attestation clause, or if the attestation clause is insufficient, the Court shall require an affidavit from at least one of the subscribing witnesses, if either of them is living, to prove that the will was, in fact, executed in accordance with those enactments.”

There is such an affidavit from Alhassan Alibaka testifying that the testator executed the said will on the day mentioned in the will, exhibit A, making his mark and affixing his thumbprint at the foot or end thereof in his presence as well as that of Zaratu Issah, the other subscribing witness, both of them being present at the same time. The affidavit further stated that the two of them attested and subscribed the said will, exhibit A, in the presence of the testator. I am satisfied on this evidence that the formalities relating to the execution of exhibit A were complied with. There is, however, another matter that merits consideration in this application. On the left-hand side of the will, exhibit A, but

[p.942] of [1968] GLR 940 before the word “witnesses,” there appear the two thumbprints of Abdulai Mahama, the sole beneficiary under the will, and Mumuni Alhassan in whose care Abdulai Mahama is entrusted. For the sake of brevity I shall describe Mumuni Alhassan as a “testamentary guardian” and he shall hereinafter be referred to as such.

The question here is whether the sole beneficiary and “testamentary guardian” thumbprinted the will as witnesses in addition to Alhassan Alibaka and Zaratu Issah. The position of the “testamentary guardian” as a further witness if at all to the will is of little moment, but if the sole beneficiary is found to be a competent witness of the said will he does not take under it and the bequest and devise to him will become null and void: see section 15 of the Wills Act, 1837 (7 Will. 4 & 1 Vict., c. 26). Such a person shall, however, be a competent witness to prove the validity or invalidity of the will. There is a supplementary affidavit sworn to by the “testamentary guardian” and paragraphs (3) and (4) are significant for the purpose of this application. Paragraph (3) reads: “That the deceased before making his will told me that he was anxious to leave all his properties to his only grandchild Abdulai Mahama and that I should look after him. Abdulai Mahama was then only about four years old. The deceased had no child then alive and was very fond of Abdulai.”

And paragraph (4) also reads:

“That after the deceased had prepared his will he requested me to append my thumbprint thereto to indicate that I accept the duties being placed upon me by the will. The deceased wanted Abdulai’s thumbprint to be placed on the will so that in future everyone will know that he was the one he the deceased meant to benefit. Abdulai’s thumbprint was put on the will but quite frankly he did not know what he was doing.”

It is beyond peradventure that at the time the sole beneficiary was made to put his thumbprint on the will, exhibit A, he was only four years old and I cannot imagine how such an infant can legally subscribe to such a document. He could not have thumbprinted the will with any intent whatsoever. The reason for the thumbprint of the “testamentary guardian” is quite plain from paragraphs (3) and (4) of his affidavit, and it is clear that he did not do so as a witness to the execution of the testator’s will. Furthermore the position of their thumbprints on the document makes it quite clear that the sole beneficiary and the “testamentary guardian” did not thumbprint the will as witnesses. [p.943] of [1968] GLR 940

The law on this matter is quite plain. The presumption is that any signature appearing on a will after that of the testator is presumed to be the signature of a witness to the will. The strength of this presumption depends to some extent on where the signature on the will is found. Thus In the Estate of Bravda (Decd.); Bravda v. Bravda [1968] 2 All E.R. 217 at p. 225, C.A. Salmon L.J. said “In this case, however, as my lords have pointed out, the signatures of the plaintiffs appear immediately under the words ‘witnessed 14-12-65’. It really is not a question here even of presumption. The document which they signed states on its face that they signed as witnesses.” It is not so in the instant case for the thumbprints of the sole beneficiary and the “testamentary guardian” do not appear after the word “witnesses” in the said will as in the case of the thumbprints of Alhassan Alibaka and Zaratu Issah. I have also adverted my mind to the case of In the Estate of Denning [1958] 1 W.L.R. 462 to which I was referred by counsel. In my judgment the evidence here does sufficiently demonstrate that the sole beneficiary and the “testamentary guardian” thumbprinted not as attesting witness but for the reasons which appear in paragraphs (3) and (4) of the supplementary affidavit of the “testamentary guardian.” In any event I am of the view that the thumbprint of the infant beneficiary is of no consequence and it can conveniently be ignored for all legal purposes.

On the evidence before me I find therefore that the document, exhibit A of 19 September 1966, was a duly executed will without the thumbprints of the sole beneficiary and “testamentary guardian.” In these circumstances it is proper to grant the application, but having regard to the fact that the sole beneficiary is an infant of only six years old now, I think it safe that there should be at least two persons who should administer the estate on his behalf; see section 77 (1) of the Administration of Estate Act, 1961 (Act 63), which states: “77. (1) Probate or administration shall not be granted to more than four persons in respect of the same property, and administration shall, if there is any beneficiary who is an infant or if a life interest arises under the will or intestacy, be granted either to a trust corporation, with or without an individual, or to not less than two individuals.”

I shall therefore grant letters of administration cum testamento annexo to the applicant, Mumuni Alhassan and to the Registrar, High Court, Tamale.

The conclusion I have reached in this case does afford me some satisfaction in that I have been able, so it seems now, to carry out

[p.944] of [1968] GLR 940 the manifest intentions of the testator and I am spared the unhappy state of mind that Willmer L.J. had when he said in the case of In the Estate of Bravda; Bravda v. Bravda [1968] 2 All E.R. 217 at p. 222, C.A. that “I confess that I reach this conclusion with no little regret; for it is quite manifest to me that the consequences which will follow will be quite contrary to the plain and expressed intentions of the testator.” In the case thus cited the two daughters to whom the testator left the whole of his estate were deprived of the enjoyment of their father’s estate. I order, however, that usual notices be posted up for 21 days on the notice boards of Tamale High Court, District Court Grade II, Tamale, and at the last known place of abode of the deceased.

DECISION

Application granted.

F. S. T.