WILBERFORCE vs. WILBERFORCE [1999-2000] 2 GLR 311

CASES REFERRED TO

(1) Banks v Goodfellow (1870) LR 5 QB 549; 39 LJ QB 237; 22 LT 813.

(2) Parker v Felgate (1883) 8 PD 171; 52 LJP 95; 47 JP 808.

(3) Perera v Perera [1901] AC 354; 70 LJPC 46; 84 LT 371, PC.

(4) Wilson v Wilson (1876) 22 GR 39.

(5) Thamer v Jundt (1912) OWR 206; 4 DLR 753.

(6) Harwood v Baker (1840) 3 Moo PC 282.

(7) Akoto v Mosi [1992-93] GBR 320, CA.

(8) Symes v Green (1859) 1 SW & TR 401; 28 LJP & M 83; 33 LTOS 168.

(9) Sutton v Sadler (1857) 3 CB (NS) 87; 26 LJCP 284; 30 LJOS 65.

(10) Akenten II v Osei [1984-86] 2 GLR 437.

(11) Akim Akroso Stool v Akim Manso Stool [1989-90] 1 GLR 100, CA.

(12) Motor Parts Trading Co v Nunoo [1962] 2 GLR 195, SC.

(13) Baker v Denning (1838) 8 Ad & El 94; 1 Will Wol & H 148; 7 LJQB 137.

(14) Sackitey (Decd), In re; Dzamioja alias Ashong v Sackitey [1982-83] GLR 1196. (15) Wilson v Beddard (1841) 12 Sim 28; 10 LJ Ch 305; 5 Jur 624.

(16) Baksmaty v Baksmaty [1964] GLR 56.

(17) Sellwood, In the Estate of (1964) 108 Sol J 523.

(18) Finn, Re Estate of (1935) 105 LJP 36; 154 LT 242; 52 TLR 153.

(19) Wilkie v Wilkie (1915) 17 WALR 156. ?

(20) Amarteifio (Decd), In re; Amarteifio v Amarteifio [1982-83] GLR 1137.

(21) Occleston v Fullalove (1873-74) 9 Ch App 147; 43 LJCh 297; 29 LT 785; 38 JP 196. (22) Broughton v Knight (1873) LR 3 P&D 64.

(23) Posner (Decd), Re; Posner v Miller [1953] 1 All ER 1123; 97 Sol Jo 390.

[p.316] of [1999-2000] 2 GLR 311 (24) Kennell v Abbott (1799) 4 Ves 802; 31 ER 416.

ACTION by plaintiff at the High Court, Cape Coast seeking inter alia a declaration that the will of his deceased was null and void for the reason that his deceased father lacked mental capacity at time he was alleged to have given out instructions for the preparation of the will and at the time of its execution. Odro for the plaintiff.

Cab-Addae for the defendant.

Heward-Mills J. The plaintiff is seeking a declaration that the will of his late father, Thomas Graham Wilberforce, dated 11 March 1997 is null and void. He wants an order restraining the defendants, who are the executors, from giving effect to the will.

The father had during a visit to Cape Coast from Accra, been taken ill and admitted into hospital on 9 March 1997. The plaintiff contends that the will executed two days after the admission is null and void because his father had been diagnosed as “not in control of his mental faculties to appreciate and/ or give instructions.” The will therefore had been obtained by fraud.

The defence deny the allegations of lack of mental capacity and fraud. The will had been prepared in accordance with instructions handwritten by the father (exhibit Al) and a typed draft approved by the father. They rely on due execution of the final will.

The issues set down for trial are:

(1) Whether the deceased could be said to be in the right frame of mind and/ or in control of his mental faculties during the execution of the will?

(2) Whether it was essential for the doctor caring for the patient at the time to issue a medical certificate confirming the deceased possessed the necessary mental capacity?

(3) Whether there were inconsistencies between the instructions given by the deceased and the will executed, and the effect of such inconsistencies?

(4) Finally, whether the will was obtained fraudulently?

Testamentary capacity is an essential prerequisite and must exist during the giving of instruction as well as during the execution of the will. It is defined by Cockburn C J in the leading case of Banks v Goodfellow (1870) LR 5 QB 549 of 565 as “soundness at

[p.317] of [1999-2000] 2 GLR 311 mind, memory and understanding. The ability to recall intended beneficiaries, an understanding of the nature of their claims on him, and the testator’s full knowledge of the extent of his properties of which he is disposing.” Where testamentary capacity exists at the time of instructions but was intervened by infirmity during execution, then the will must naturally give cause for suspicion, which requires further investigation, especially where as in this case, close family members with legitimate expectations have been excluded.

Mere suspicions, however, are not sufficient to invalidate a will; for though physical infirmity may have reduced the mental capacity of the testator, parole or documentary evidence is admissible to validate the will if there is evidence to show first, that the instructions were given whilst the testator was in good health and secondly, the will had been prepared in accordance with those instructions and that at the time of execution, the testator understood he was signing a will for which he had given instructions: see dictum of Sir James Hannen in Parker v Felgate (1883) 8 PD 171 at 173 approved in Perera v Perera [1901] AC 354 at 361.

Evidence from the defence shows the testator, soon upon arrival in Cape Coast, had expressed his intention of making his will. He had by his own hand written out the instructions, exhibit Al. He had handed it over to his lawyer. A typed draft had been prepared and given to him for approval. He had on 5 March 1997 signed the typed draft (exhibit A2) and written “lawyer Go Ahead” at the bottom of the draft. On the 11 March, two days before his death, the lawyer’s clerk and a nephew of the testator, had taken the prepared will for his signature. According to the lawyer’s clerk, there was a doctor and some nurses present during the execution of the will. The testator was mentally aware but physically weak. The will was read over to him, he understood the contents, nodded his head and in Fante said Oyie which translated, meant it was alright. He was too weak to sign so his thumbprint was affirmed and the clerk and nephew signed as witnesses. The will together with the two drafts, were duly deposited in court by the lawyer.

The question has been posed as to the necessity to produce a medical certificate showing due capacity under such circumstances. It is stated in the case of Wilson v Wilson (1876) 22 GR 39 “that a Court adjudicating upon the question of mental capacity of a testator will give affect to the evidence thereof given by the medical attendants rather than to others . . .” The case of Thamer v

[p.318] of [1999-2000] 2 GLR 311

Jundt (1912) OWR 206 draws a distinction between ordinary contracts and wills. According to the case: “Greater scope of general capacity is needed where the whole of a man’s property is being dealt with, eg by a will than when he deals with a single of separate piece of it by contract.” So that whereas the testimony of a lawyer’s clerk or indeed a lawyer might be sufficient to lend veracity to ordinary dispositions, when a person, critically ill in hospital, executes a will on his death bed then it is necessary and advisable to ensure the presence of physician to hear the testator approve of the contents of the will: See Harwood v Baker (1840) 3 Moo PC 282.

He who seeks to rely on due execution of a will bears the burden of persuasion: see holding (3) of Akoto v Mosi [1992-93] GBR 320, CA. In this case however, it is the plaintiff who has instituted this suit challenging both the mental capacity of the testator and due execution of the will. He therefore bears the primary burdens of persuasion and of producing evidence as required under sections 10 and 11 of the Evidence Decree, 1975 (NRCD 323), respectively. By section 14(2) of NRCD 323, the dual burdens borne by the plaintiff will not shift unless discharged by preponderance of probabilities—defined in sections 10(4) and 12(2) of NRCD 323 to mean that the court must believe the plaintiff’s allegations to be more probable than not. Then and only then will the burden shift to the defendant to dispel the suspicions so raised by the plaintiff.

The facts relied on by the plaintiff are:

(1) The testator was unconscious at the time of the alleged execution.

(2) There is medical evidence showing the testator lacked mental capacity.

(3) There are differences between the will and the instructions alleged to have been given to testator’s counsel.

(4) The nephews of the testator have been referred to as “sons” in the will.

(5) There testator though literate has thumb printed and not signed the will.

(6) The testator has not signed each page of the will.

(7) The will is fraudulent.

The first issue is: was the testator unconscious at the time of the executing the will? The testimony of the plaintiff on this issue came from the mother who had been told by a nurse that the father

[p.319] of [1999-2000] 2 GLR 311 was unconscious on that day. Neither the mother nor the nurse testified. Proof of such a material fact cannot emanate from inadmissible hearsay evidence.

The plaintiff relied extensively on the evidence and report of Dr Klutse and the medical superintendent, Mr Dankwa. The medical superintendent testified what in his opinion constituted the proper procedure for executing wills in hospitals. It was obvious from his testimony and from his failure to produce formal records of the alleged procedure in court, that there are no laid down procedures; so that the evidence of the defence, that the will was executed in the presence of the doctors and nurses they could summon at that moment, was not in breach of any known procedure or official regulations.

The crucial part of the superintendent’s testimony was that relating to the duty roster tendered in as exhibit D. That exhibit was crucial because the plaintiff’s star witness, Dr Klutse, had tended in a medical report showing that he had first seen the patient on 9 March 1997. The report reads:

“When seen, patient was fully conscious but looked depressed, unco-operative and talked incoherently. Provisional diagnosis of:

(1) ? Depression.

(2) ? Senile psychosis (3) CA Prostrate was made.”

At the bottom of the report, the doctor had written: “Patient’s condition deteriorated on 10 March 1997 and died on 13 March 1997 at 5.10 pm.”

The plaintiff is seeking to set aside a will which on its face gives no cause for suspicion. There is therefore a presumption of mental competence which cannot be rebutted by evidence of a slight nature: see the cases of Symes v Green (1859) 1 SW & TR 401 and Sutton v Sadler (1857) 3 CB (NS) 87 cited by Williams Mortimer and Sunnucks on Executors Administrators & Probate (16th ed) at p 156, notes 41 and 42. The burden to prove lack of testamentary capacity is just as exacting as that required to prove it. Therefore mere suspicion is not sufficient. The relevant period is at the time of execution. The initial burden is to prove the fact of soundness or otherwise of mind before and up to the time the will was executed. The court does not merely look at the type of illness and its general effect but looks subjectively at the condition of the

[p.320] of [1999-2000] 2 GLR 311 patient at the time of executing the will and considers whether the illness had progressed to such a degree as to have rendered the testator mentally incapable of executing a will.

The roster of doctors on duty showed that Dr Klutse, apart from seeing the patient on admission on 9 March, had not been on duty again till on 14 March. Doctor Morna had been on duty on 10 March. Dr Kordieh on 11 March; Dr France on 12 March and Dr Korkor, who on 13 March issued the death certificate of the testator when he died. The will was executed on 11 March. The state of mind of the testator up to and including that date is what is relevant at this point. Under the “best evidence” rule, the testimony of the two doctors, Kordieh and Morna, who saw him during this period, or at least their medical notes is crucial to the success of the plaintiff’s case.

Dr Klutse was not only absent during this period but in his evidence undermined the credibility of the report he tendered by admitting that the question marks against the diagnosis of “senile psychosis” indicated uncertainty about the diagnosis. His notes at the bottom of the report that the “patient’s condition had deteriorated on 10 of March . . . fell unconscious on 12 March”, is not only indeterminate of the crucial questions to the patient’s state of mind on 11 March during the execution of the will, but also hearsay evidence at best. If, as the report states, the patient fell unconscious on 12 March then it is an admission in fact that on the day of execution, ie on 11 March, the testator was fully conscious.

As the court has already stated, the burden to prove mental incapacity is high. It cannot be shifted unless the allegation is well established and is not shifted by hypothetical diagnosis of a doctor who has not seen the patient for at least three days prior to his death, nor on the crucial date of execution of the will. The court is reminded of the dictum of Apaloo CJ in the case of Akenten II v Osei [1984-86] 2 GLR 437 at 448. Citing Phipson on Evidence (10th ed) at 481, he had said:

“The testimony of experts is often considered to be of slight value, since they are proverbially, though perhaps unwittingly biased in favour of the side which calls them, as well as over-ready, to regard harmless facts as confirmation of preconceived theories . . .”

Since there is no evidence of the mental condition of the testator up to and on the day of the execution of the will, the finding of the

[p.321] of [1999-2000] 2 GLR 311 court is that the plaintiff has not proved the allegation of mental incapacity of the testator to the extent required at law.

Other grounds of fraud particularised in the statement of claim are:

(a) The thumbprint of the testator was affixed at a time when he was not in control of his faculties. (b) The testator was not in a mental condition to give instructions.

(c) The will had described John Dyson Wilberforce and Thomas Graham Wilberforce as sons, though they are his nephews.

(d) That the attached handwritten document containing instructions are not that of the testator. (e) Contents of the attached handwritten instructions substantially differ from the will. (f) There were no verbal instructions.

(g) The testator though literate had thumb printed the will.

During cross-examination, an additional issue had been raised that each page of the will should have been signed.

The law requires that fraud must not only be particularized but must be proved. The onus of producing evidence and persuading the court lies on person alleging the fraud, in this case the plaintiff: see Akim Akroso Stool v Akim Manso Stool [1989-90] 1 GLR 100 CA; and Akenten v Osei (supra); and Motor Parts Trading Co v Nunoo [1962] 2GLR 195, SC. The standard of proof required under the section 13(1) of NRCD 323 is proof beyond reasonable doubt.

The issue relating to the alleged mental incapacity of the testator during execution has already been dealt with.

Thumbprint The fact that the father, though literate, had thumb printed the will is not a ground for nullifying the will. Section 2(1) of the Wills Act, 1971 (Act 360) requires the signature of the testator or by some other person at his direction. But where the circumstances dictate otherwise a mark of any kind made by the testator, whether he can write or not, made by him or indeed by anyone under his authority or direction is sufficient, provided it is intended to represent his name or in acknowledgement of the execution of the will by the testator or done to authenticate the will: see Baker v

[p.322] of [1999-2000] 2 GLR 311 Denning (1838) 8 A & E 94 cited in Theobald on Wills (14 ed) at p 42.

The evidence indicate that the testator though mentally alert, was physically weak. He was therefore assisted to thumbprint the will. There has been no credible evidence to controvert this piece of evidence from witnesses present during the execution. Under the circumstances of physical weakness, the law allows an assistance to the testator to make his mark, including thumb printing. This is the specific decision in holding (1) of In re Sackitey (Decd); Dzamioja alias Ashong v Sackitey [1982-83] GLR 1196. See also Wilson v Beddard (1841) 12 Sim 28 cited in Baksmaty v Baksmaty [1964] GLR 56 at 61. Thumbmark was allowed in the cases of In the Estate of Sellwood (1964) 108 Sol J 523 and in Re Estate of Finn (1935) 105 LJP 36.

Signatures

The court has found no legal basis for the contention of plaintiff’s counsel that where the will consists of more than one sheet, each page must be signed by the testator. All that is required is that all the sheets should be together at the time of execution and that there should be animus testandi, that is the signature should be placed in such a position so as to give effect to all the dispositions–see Halsbury’s Laws of England (3rd ed), (Vol 39), p 877-875, paras 1329-1330 and Theobald on Wills (14th ed), 43.

By section 2(2) of Act 360 all dispositions underneath, following or inserted after the signature of the testator is of no effect. This means that the best and only necessary position for a testator’s signature is at the end of the will.

Instructions

The summary of allegations by the plaintiff are that: (i) the instructions was given at a time when the testator had no capacity; the testator had not given any verbal instructions; and there were differences between the alleged instructions and the final will.

Lack of capacity at the time of instructions again is a matter of proof. The primary onus lies on the plaintiff who had provided no contrary evidence. The instructions were given at home firstly under the hand of the testator (exhibit Al). The instructions were then subsequently typed out by a lawyer’s clerk. The testator again under his own hand had written at the bottom of the typed draft,

[p.323] of [1999-2000] 2 GLR 311 exhibit 2: “Lawyer Go Ahead”. He had dated it as at 5 March 1997 and then signed alongside the date.

If the plaintiff denies the authenticity of the handwriting, then again he bears the primary burden of proof of the contrary. He can only discharge this by expert evidence or in the form of another handwritten document of the testator which differs substantially from the ones exhibited. There was no such evidence.

Differences between will and instructions

Physical illness may put in issue the mental capacity of a testator. As in this case, the mental condition at the time of instructions will be of crucial importance because it is the law that although the mental capacity of a testator may have been reduced at the time of the execution of the will, if he gave instructions whilst in good health, and the will is drawn in accordance with those instructions and at the time of the execution of the will he understood he is executing the will for which he has given instructions, the will, will not be invalidated for want of mental capacity. In Parker v Felgate (1883) 8 PD 171 cited and approved in Perera v Perera [1901] AC 354 at 361, the capacity of the testator had deteriorated after giving instructions. She was raised from a partial coma to attest the will which was subsequently upheld by the court. This is because at the time of execution, she was capable of understanding she was executing a will for which she had given instructions. The court further held that it was immaterial that at the time of signing she could neither remember her instructions nor even understand each clause so long as she understood the nature of her act, ie executing her will. Again as stated in Wilkie v Wilkie (1915) 17 WALR 156, if a testator is of sound mind when he gives instructions but at the time of signing he accepts the instrument as drawn without being able to follow the provisions, he must be deemed to be of sound mind when it was executed.

According to the evidence of the lawyer’s clerk, as already stated in this judgment, during the reading of the will to the testator he was alert sufficiently to say Oyie meaning “it is alright” in Fante so that in the absence of contrary evidence, the law presumes that the testator was aware of the significance of the moment before his thumbprint was affixed.

What are the differences complained of? In the handwritten instructions, exhibits Al and A2, houses involved had been listed,

[p.324] of [1999-2000] 2 GLR 311 namely, “Adisadel Estate house” and “Freehold house at Abofu, Achimota.” This was followed by a list of all the nine beneficiaries. The final paragraph headed “EXCLUSION” orders his present wife out of the Achimota house and gives the reason for the “exclusion.” A line in the same ink, has been drawn between the first five beneficiaries and the remaining four. In the typed draft, exhibit A2, the building at Achimota had been devised to the first five beneficiaries only described as “children by my first wife….” The Adisadel estate was devised to… wife Dora Puplampu and all (my) children namely …” and there followed the names of all nine beneficiaries.

In the third and fourth paragraphs, he explains the discrimination against the last four children and the exclusion of the current wife from the Achimota house, The fifth paragraph is the usual residual clause, bequeathing all movable and immovable properties again to the first five children only.

Whichever differences occur between the format of a formally drawn up will and prior instructions, due consideration must always be given to the fact of intervention by a legal officer. For this will invariably explain the variation between an informal instruction and the eventual formal document. Besides, it is not sufficient to merely point out differences between the two as contended by counsel for the plaintiff. He who seeks to have a duly executed will set aside must go further and prove that the differences establish that the resultant will is not in accordance with the apparent intent of the testator or that the difference is the result of fraud or undue influence.

The obvious intent of the testator herein was to discriminate against the plaintiff and his siblings and to exclude his mother from benefiting from the estate. The plaintiff did admit in court that when his late father left Accra on his last journey to Cape Coast, he was not on speaking terms with the wife because of previous problems within the family. This problem had not only been stated in the last paragraph of the handwritten draft, but has been expanded on in the typed draft and repeated in the final will.

It is a rule of construction that where there is consistency of intention between the instructions and the final will and the intention is conveyed by clear and unambiguous words, then the duty of the court is to uphold the will and give meaning to the true intent of the testator: see In re Amarteifio (Decd); Amarteifio v Amarteifio [1982-83] GLR 1137 and Occleston v Fullalove (1873– [p.325] of [1999-2000] 2 GLR 311

1874) 9 Ch App 147 at 161. As stated in the case of Broughton v Knight (1873) LR 3 P&D 64 at 66, restated in Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (16th ed), p 148: “The Law does not call for a perfectly balanced mind, or a will to be pronounced against merely because the testator was moved by capricious, frivolous, mean or even bad motives. A testator may disinherit his children to gratify his spite but the court must nevertheless uphold his will.”

Misdescription of beneficiaries:

The remaining objection on the basis of fraud is the fact that two nephews, namely John Dyson Wilberforce and Thomas Graham Wilberforce, the first and second beneficiaries under the will, have been described as children of Mrs Dora Puplampu and therefore sons of the testator. The court does accept the submission of counsel for the defence and takes judicial notice of the fact that it is not uncommon by Ghanaian custom and traditions that nephews and nieces should be affectionately referred to as sons and daughters by their respective uncles and aunts. In any case, as the law stands, inaccurate references to beneficiaries per se does not invalidate bequests. To do so there must be evidence that a beneficiary adopted a false character and this was done fraudulently to deceive the testator and further that the deceit was perpetrated with the motive of benefiting under the will.

In Re Posner(Decd); Posner v Miller [1953] All ER 1123, the testator described a woman beneficiary under the will as his “wife” when that woman was already married to someone else, though this was not known to the testator, yet the legacy was upheld. Similarly in Kennell v Abbott (1799) 4 Ves 802 legacy to a child by a testator who believed the child to be his, though he was not, was upheld because the child had not assumed a false character to deceive the testator.

As stated in Halsbury’s Laws of England (3rd ed) (Vol 39), para 1521 at p 1004:

“It is a rule of construction which applies to all written documents and not to wills alone that if , of various terms used to describe a subject matter . . . some are sufficient to ascertain that subject matter with certainty but other terms add a description which is not true. . . these other terms are not allowed to vitiate the gift . . .”

[p.326] of [1999-2000] 2 GLR 311

If false description cannot vitiate a gift, then it certainly cannot nullify the whole will. rd The application of the above construction is further illustrated in Halsbury’s Laws of England (3 ed) (Vol 39), para 1522 that:

“Where . . . the context of the will and the circumstances of the case show unambiguously whom or what the testator meant, the description is rejected and the intention of the testator is effectuated.”

The court finds that the use of the word “sons” to describe the two nephews of the testator does not in any way detract from the validity of the will.

As often is the case, “soundness of a testator’s mind” is questioned by disaffected close relatives whose legitimate expectations have been unfulfilled by the will. There is no presumption of mental incapacity simply because a will is executed on a death bed. The fact of mental incapacity or the lack of it must be proved with strong evidence.

The court is persuaded to uphold the validity of the will of the testator herein because there is no evidence proving the incapacity of the testator either during the giving of instructions or at the time of his execution of the will. Neither is there evidence to prove that the will was procured by fraud. It is for the above reasons expanded in this judgment that the court in delivering its verdict on 16 June 1999 upheld the validity of the will of the testator.

Action dismissed

LSNA