KWAKO vs. TAWIAH [2001-2002] 1 GLR 339

CASES REFERRED TO

(1) Mensah (Decd); Barnieh v Mensah [1978] GLR 225, CA.

(2) Doe d Hiscocks v Hiscocks (1839) 5 M & W 363.

(3) Ofner, In re; Samuel v Ofner [1909] 1 Ch 60, CA.

(4) Ahorklui v Ahorklui, High Court (Land Division), Accra, 1 June 1959; Ollennu, PCLLG 212. (5) Khoury v Tamakloe (1950) DC (Land) ’48–’51, 201.

(6) Turkor v Harrison (1832) 5 Sim 538.

(7) Kwoba v Propaganda Fide (1950) DC (Land) ’48–’ 51, 22.

(8) Frimpong v Anane [1965] GLR 354, SC.

(9) Nelson v Nelson (1951)13 WACA 248.

(10) Yena (Decd), In re [1960] GLR 195.

APPEAL by the appellant to the Supreme Court from the majority judgment of the Court of Appeal wherein it allowed the respondents’s appeal against the judgment of the trial High Court and [p.343] of [2001-2002] 1 GLR 339 thereby held that the appellant was holding the residuary estate devised to him under the will of the testator as a customary successor on behalf of the family and not as his personal property absolutely. The facts are sufficiently stated in the judgment of the Supreme Court delivered by Adzoe JSC. Victor Agudetse for the appellant.

Yiadom Boakye for the respondent.

ADZOE JSC. Delivered the first judgment at the invitation of Bamford-Addo JSC. Isaac Ottie alias Agya Atta died on 10 August 1982. He hailed from Kenkase, Kwabre No 3 in Ashanti. He left behind a will dated 26 January 1982. In the will he devised houses and farms to his wife, children and other persons. Among the devisees was one Kwadwo Kwako, the appellant herein. The testator in cluase (7) of his will devised six rooms in house No 54, Block 12 to the appellant. Then in clause (13) of the will the testator declared that: “Kwadwo Kwako is to inherit me on my death and all the properties which I have not devised must go to him.”

The plaintiff-respondent (hereinafter referred to as the respondent) did not receive any gift under the will. On 7 February 1991 the respondent describing himself as:

“One of the principal members of the Bretuo family or clan of Kenkase-Ashanti and a beneficiary under the late Isaac Ottie’s said will and who claims to be interested in the residuary estate of the said Isaac Ottie.”

(deceased) took out an originating summons at the High Court, Kumasi asking for an interpretation of clause (13) of the will, quoted above. In his opinion, the devise to the appellant in clause (13) of the will was made to him in his capacity as customary successor and therefore the appellant must be deemed to take such properties in trust for his immediate family. The question he posed for determination is as follows:

“Whether or not having regard to the devises in the last will of Isaac Ottie alias Agya Atta (Decd) dated 26 January 1982, more particularly the devises made in clauses (7) and (13) of

[p.344] of [2001-2002] 1 GLR 339 the said will, the late testator Isaac Ottie by clause (13) of the said will devised his residual estate to Kwadwo Kwako personally forever or the devise was made to Kwadwo Kwako in his capacity as the customary successor who is to hold the properties in trust for his immediate family.”

The respondent contended that the deceased made the devise in clause (13) to the appellant in his capacity as the deceased’s customary successor because the deceased knew that the appellant would be his customary successor. The respondent alleged that before the deceased died he pleaded with the elders of the Bretuo family that he wished the appellant to be his customary successor and when the family discovered later on that this wish was “repeated in the last will of the deceased”, the family honoured it and accordingly appointed the appellant as the testator’s customary successor.

The appellant denied this. In an affidavit filed on 4 March 1991 in answer to the respondent’s claims, the appellant deposed in paragraphs (6) and (7) as follows:

“(6) I deny that my late uncle Isaac Ottie before his death pleaded with the elders of the Bretuo family that he wished that I be made customary successor any time he died.

(7) That my appointment as the customary successor was not due to any request of my late uncle but by consensus of the family after my late uncle’s death.”

Accordingly, the appellant maintained that any properties covered under the devise made in clause (13) were gifted to him personally for his own benefit.

It would appear that the confusion which arose in the minds of the respondent and some members of the Bretuo family was created by the word “inherit” in the controversial clause (13). What did the testator mean when he said “Kwadwo Kwako is to inherit me?”

In his search for a proper construction of clause (13), the trial court decided to, and did, indeed, call the lawyer who prepared the will, in his own words “to tell this court what his instructions were in respect of clause (13).” The lawyer’s evidence was briefly this:

“My instructions were that Kwadwo Kwako who was to

[p.345] of [2001-2002] 1 GLR 339 inherit him was to take his residuary estate on condition that he would take care of his wife. The residuary estate was to go to the family if he failed to look after his wife. The wife of Ottie died not long afterwards.”

Upon this evidence the trial High Court judge made the following observations in his judgment:

“Having heard counsel for both sides, the court decided to fall on the person who prepared the will to find out what the intent of the testator was when he (the testator) gave him instructions. Fortunately, the will was prepared by a lawyer who was readily available . . . From the evidence of the Lawyer, Mr Charles Kessie, it became clear that the testator intended that the residuary estate must go to Kwadwo Kwako in his personal capacity. The condition upon which the family was to have the residuary estate did therefore not materialise. Consequently, I hold that the devise in clause (13) of the will was to Kwadwo Kwako personally and he took the same in his personal capacity.”

The respondent immediately appealed to the Court of Appeal on the grounds that:

(a) The judgment cannot be supported having regard to the contents of the deceased’s will.

(b) The trial judge erred in law by receiving extrinsic evidence and using the same to ground her judgment.

When the appeal came up for hearing, the respondent argued one additional ground which was that “(1) the interpretation given by the learned High Court judge sins against the spirit and letter of section 1 of the Wills Act, 1971 (Act 360).” Counsel argued that by clause (13) the testator clearly showed an intention to appoint the appellant as his customary successor, and that the residuary estate was to go to the appellant in his capacity as customary successor “because the testator gave all his properties to children, wives, etc; and if the appellant had not become customary successor it would not be proper for the residuary estate to go to him as stated in the will.”

Two of the three judges of the Court of Appeal allowed the appeal and one disagreed, saying: “There is nothing in the will of

[p.346] of [2001-2002] 1 GLR 339

Ottie, which indicates that Kwadwo Kwako was to take the residuary estate other than in his own personal capacity.” The majority decision was based on the argument that the deceased testator had, during his lifetime, requested that the appellant should be his customary successor and because the family acceded and appointed him as such successor the appellant was “bound in law and custom to hold and administer the estate in trust for the family and nothing more.” They made an order directing the appellant to take the residuary estate in trust for the family, and “to administer and manage it for and on behalf of the family.”

This is why the appellant has also appealed to this court. His grounds of appeal are:

“(1) That the judgment of the Court of Appeal is wrong in law.

(2) That the majority decision that the third defendant-respondent-appellant took those properties as customary successor is wrong in law.

(3) That the majority of two judges who decided that there was ambiguity in paragraph (13) of the will of the testator have erred in law.”

We are to settle finally what should be the proper construction of clause (13) of the will. My Lords, I agree with the learned judges of the Court of Appeal that the trial judge erred in taking evidence from the lawyer who prepared the will.

My understanding is that a will is a very special and solemn legal document in which a person declares his wishes as to how his property should be distributed, disposed of or managed after his death; and the greatest respect due to a deceased person is, in my opinion, to give effect to his “last will and testament” unless there are compelling reasons militating against doing so. Annan JA hit the mark when he said in Mensah (Decd); Barnieh v Mensah [1978] GLR 225 at 229, CA that: “The policy of the courts is to give effect to the last wishes of the deceased and to uphold them unless there are overriding legal obstacles in the way.” In accordance with this basic principle, when the courts set out to construe a will what they do is to look for the intention of the testator as expressed by him in the actual words used by him, having regard to all the other provisions in the will. The intention

[p.347] of [2001-2002] 1 GLR 339 which the will itself declares either expressly or by necessary implication is what the courts would act upon. The rule which enjoins the courts to rely on the language of the testator is normally called the golden rule. There are other rules, indeed, many rules of construction which the courts often rely on for guidance. These several rules have a common aim, namely to direct the court towards an objective standard of construction and to exclude evidence which seeks to provide what is supposed to be the actual intention of the testator.

The rule is generally stated as being this, that extrinsic evidence of a testator’s declarations of intention as to the meaning to be put on the language used in his will is not admissible as direct evidence of his testamentary intention. Under this rule, evidence of instructions given by the testator for his will and of any declarations made by him as to what he intended to do by the will is not admissible as direct evidence of his testamentary intention. Thus in the case of Doe d Hiscocks v Hiscocks (1839) 5 M & W 363 it was held that evidence of the testator’s instructions for his will and of his declarations after its execution which suggested that he meant the gift for “Simon” and not “John” was not admissible. But instructions given for the will are admissible in two situations accepted as exceptions to the general rule. Such instructions may be admissible in cases of equivocation, and as circumstantial evidence under the armchair principle. An equivocation, sometimes also called a latent ambiguity, arises if the name or description of the devisee or the property mentioned in the will turns out to fit two or more persons or things and applies unambiguously to all of them; and under the armchair principle the instructions are admissible as contemporaneous evidence that is explanatory of the meaning which the testator attributed to a word or a name. In either case the instructions are not admitted for the purpose of gathering what the testator intended to do, but strictly for the purpose of identifying the person or object he is reasonably deemed to have had in mind. The point is illustrated in In re Ofner; Samuel v Ofner [1909] 1 Ch 60, CA. In that case, the testator appointed one Dr Alfred Ofner as one of his executors and gave him a legacy of £200. Among other legacies, he also gave “to my grandnephew Robert Ofner £100.” The Court of Appeal held that a document was admissible, not as evidence of intention, but as

[p.348] of [2001-2002] 1 GLR 339 evidence to assist the court to find out who the “grandnephew” was whom the testator had wrongfully described as “Robert.” With the aid of the document the court was able to conclude that it was “Richard” who was mistakenly referred to as “Robert” because there was no “Robert” and Dr Alfred Ofner, indeed, had a brother called Richard whom the testator was certainly referring to, but erroneously thought he was called Robert. As Farwell LJ put it in his judgment at 67:

“. . . any evidence is admissible which, in its nature and effect, simply explains what the testator has written, and no evidence can be admissible which, in its nature and effect, is applicable for the purpose of showing what he really intended.”

In the instant case, the provision in clause (13) does not require any extrinsic evidence to assist the court in construing it. The language of clause (13) is fairly straightforward and portrays no hidden intentions.

Looking at the grounds of appeal filed by the appellant, it is my view that they all centre on only one and the same theme, namely that the majority decision that the appellant herein should take properties under clause (13) as customary successor is wrong. What the majority are saying is that if any properties come to the appellant under clause (13), they belong to the testator’s immediate family and the appellant will hold them as a trustee or caretaker for and on behalf of the said family.

The problem with clause (13) is caused by the verb “inherit” What is the import of the verb “inherit” in the context of this will? The testator was a Ghanaian and an Ashanti. But this will was prepared by a lawyer who must be deemed to have chosen his words with professional insight. The words he chose upon his instructions are “to inherit me”; he did not say “to be my customary successor.” There must be a reason for this. To “inherit”, when used in relation to succession to property has as its primary meaning the signification of taking over the property of the deceased owner. Its import is that the inheritor is to acquire the right and privilege to enjoy any interest which the deceased owner had in the property. This meaning does not attach to the position of a customary successor in the customary law system of inheritance.

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Whenever the self-acquired property of a deceased intestate is said to become family property it is the immediate family of the deceased which takes the property. Kwabena Bentsi-Enchill calls that family the “inheriting group”: see Ghana Land Law, p 158. Ollennu puts it this way: “It cannot be over emphasised, that it is the family and not an individual who inherits and becomes owner of self-acquired property of a deceased member of the family”: vide The Law of Testate and Intestate Succession in Ghana, p 229. What this means is that the family acquires title of ownership to the property. But the family as owner always, and invariably, appointed a member of the family called the “successor” to administer the property for and on behalf of the family. This successor, stricto sensu, does not have title. He is variously described as a trustee or caretaker of the family with powers to control and manage the property: see Ahorklui v Ahorklui, Oll, PCLLG, p212 and Khoury v Tamakloe (1950) DC (Land) ’48–’51, 201. The successor at customary law is not necessarily linked up with the property of the deceased. A person may die a pauper and still have a successor. This is because the rationale behind the concept of customary successor transcends the administration of the deceased’s property. S K B Asante, in his learned treatise on property law in this country, Property Law and Social Goals in Ghana 1844-1966, pp 156-157 observed that:

“Aside from his powers and obligations in respect of the deceased’s estate, a successor represents the person of his predecessor in a very real sense; indeed he may be described as the extension of the decedent’s legal persona. Thus the decedent’s children become the children of the successor; so does the predecessor’s wife, in the technical sense at least. A successor may cohabit with the predecessor’s wife if the wife so desires, but in any case, he is under an obligation to maintain and support her while she remains unmarried. Where his means permit, a successor is expected to honour the personal and moral commitments of his predecessor.”

The legal position therefore is that a customary successor is appointed even if there is no property left behind by the deceased intestate. The corollary of this is that a customary successor will not administer and manage any property on behalf of the family if

[p.350] of [2001-2002] 1 GLR 339 the deceased does not leave behind any property for his immediate family. It follows therefore that even if we accept the view that the testator in this case did recommend the appellant as his successor and the family obliged after his death, it does not follow as a matter of course that the appellant was intended to take under clause (13) as a trustee or caretaker of the family unless it is evident that the testator intended to give property under the said clause (13) to the family.

Until Act 360 came into force on 1 June 1971, the making of statutory wills in this country was governed by the English Wills Act, 1837 which was part of the common law of Ghana as a statute of general application. It did not impose any limitation on testamentary freedom. The tradition has not been changed by Act 360. A testator can therefore dispose of all his property to whomsoever he chooses. The only restriction imposed by Act 360 is the provision in section 13 of Act 360 which gives certain dependants of the deceased—parents, spouse, child under 18 years—to claim a “reasonable provision” for their needs out of the estate of the deceased, if the testator did not make provision for them during his lifetime or by the will, and in the opinion of the High Court they are likely to suffer hardship.

Indeed, there is no obligation on the testator to leave anything for his family. This is the view I hold, looking at Act 360 and having regard to the established right of testamentary freedom which a testator has; and if a testator shows by his will that the family which under normal circumstances would have had a claim on his intestacy shall not take under the will, we must give effect to his wish. We are not entitled to indulge in any wishful presumption that a particular person or group of persons is intended to be provided for. The only guide is the language of the will: see Turker v Harrison (1832) 5 Sim 538 at 543 where the court said that there is no presumption that anyone is to be a beneficiary except those named or described in the will as such. In the instant case, the deceased’s family is nowhere mentioned in the will, but the Court of Appeal in the majority judgment reasoned that because the deceased suggested before his death that the appellant should be his customary successor, and because the family appointed the appellant as the customary successor, clause (13) which says that the appellant should “inherit” him must be construed to mean that any

[p.351] of [2001-2002] 1 GLR 339 devise to the appellant under the said clause (13) must go to the appellant in the fiduciary capacity as caretaker of the family. I have already tried to show the distinction between “inheritor” and the “successor” at customary law. The argument by the two judges of the Court of Appeal that the deceased nominated the appellant as his customary successor and so the devise in clause (13) of the will cannot be said to be specifically made to him does not appear to me acceptable. In the first place, the affidavit evidence before the court does not establish the claim that the testator asked that the appellant be made his successor. The appellant denied that allegation.

The principal members of the Bretuo family, in what purports to be their power of attorney to the respondent did not mention any request by the testator that the appellant be made his customary successor. What they declared in the said power of attorney is this:

“We belong to the immediate family of Isaac Ottie alias Agya Atta (Decd). Agya Atta died testate having made a will dated 26 January 1982. When Agya Atta died our family met and appointed our relative Kwadwo Kwako to inherit the deceased according to customary law.”

This declaration is not the same as the deposition made by the respondent in his affidavit supporting his summons. What he deposed to in paragraphs (6) and (7) of the affidavit is this:

“(6) Before his death the late Isaac Ottie pleaded orally with the elders of our Bretuo family at Kenkase-Ashanti that he wished Kwadwo Kwako would be made his customary successor any time he died. This ‘wish’ the family later discovered had been repeated in the last will of the deceased.

(7) Thus at a family gathering the family honoured the wishes of the deceased Isaac Ottie and appointed Kwadwo Kwako as the customary successor of the late Isaac Ottie.”

The discrepancy in the statements of the principal members of the family and the respondent is glaring and leaves considerable doubt on the allegation that the deceased wanted the appellant to be his customary successor; the doubt is deepened in the face of the denial made by the appellant. Accordingly, there was no evidence

[p.352] of [2001-2002] 1 GLR 339 before the trial court that the deceased wanted the appellant to be his customary successor. That is not the same as saying, as the majority of the Court of Appeal would have it, that the testator could not appoint his customary successor by his will. I concede that a person cannot, as a general rule of customary law, appoint his own successor. The authorities are many including Kwoba v Propaganda Fide (1948) DC (Land) ’48–’51, 22 and Frimpong v Anane [1965] GLR 354, SC. And see also Ollennu: The Law of Testate and Intestate Succession in Ghana (1966), p 95. Ollennu explained that the rule applied because the property would become family property only after the death of the member of family and because upon his death he would no longer have any control over the land, it is only reasonable that the family as owner should be the right authority to appoint the person who should administer the estate on its behalf. This means that the customary law regarded any attempt by the owner of property to appoint his own customary successor during his lifetime as an encroachment upon the rights of the family to appoint a successor who is the family’s caretaker and owes a fiduciary duty to the family. If the rule is so understood, then it appears to me that it cannot be extended to the case where the owner of self-acquired property makes a will. The customary law rule applies by operation of the customary law upon intestacy. A will is intended to avoid intestacy and the automatic operation of the rules of the customary law. And I think that where the owner of property makes a will his freedom of testamentary disposition must be totally divorced from the customary law, especially in a situation where he does not give any property to his family. Therefore, where a person directed in his will that a certain property should pass to his family and be administered by a named person as his successor, the appointment was held to be valid: vide Nelson v Nelson (1951)13 WACA 248. In In re Yena (Decd) [1960] GLR 195 a will appointed a successor and the court did not disapprove of it. In what was accepted as a will, the deceased disposed of his estate and appointed one Kwaku Baffu to bury him, pay all his expenses and to succeed him according to fante custom. The High Court per Adumua-Bossman J (as he then was) accepted Kwaku Baffu’s position as successor and permitted Kwaku Baffu’s own customary successor to act as the deceased’s executor and take out letters of administration. He made the following revealing

[p.353] of [2001-2002] 1 GLR 339 observations at 200:

“In this instance we have the most valuable evidence of Effuah Fofie, mother-in-law of the testator, who explained the circumstances how he (the testator) came to summon people together and directed the document to be prepared to provide for his burial on his death and the succession to his estate; . . .”

It appears to me that where a person is dealing with his self-acquired property in a will and does not intend to leave anything for his family, he must be free to appoint any other person to take control of his property and direct him to act as his successor; the rule that a man cannot appoint his own customary successor must be confined to cases where the man during his lifetime was in charge of family property, and should not be extended to testamentary dispositions.

But this aside, it is my opinion that clause (13), as I have already indicated, does not appoint the appellant as his customary successor. He declared the appellant to inherit him. Having left noting for the family, the person to inherit him in respect of any residuary property should, according to him, be the appellant, and in his capacity as inheritor, the appellant is to take all properties not devised in the will.

The provision is simple and clear. You may call it a general disposition, or a residuary disposition. Whichever it is, Act 360 takes care of it in section 7(4) and (5) thus:

“(4) A general disposition of the movable or immovable property of a testator shall include any property to which he may have power to appoint in any manner he may think fit.

(5) A general or residuary disposition shall operate to confer a power to exercise a power of appointment, unless a contrary intention appears from the will.”

A power of appointment without any limitation or qualification is equivalent to ownership. Under a power of appointment the devisee can appoint the property to himself and so become absolute owner of it unless a contrary intention appears from the will. Clause (13) of the will clearly professes to give the appellant complete control over anything that falls into residue, and so must

[p.354] of [2001-2002] 1 GLR 339 be taken as intended to give the appellant an absolute gift. As a general rule an absolute gift cannot be cut down except by clear words and there are no such words in clause (13) or any portion of the will. The contrary intention required in section 7(5) of Act 360 must be expressed or implied in the will. If the testator had intended to grant his residuary estate to the Bretuo family, he would have said so; and if he had wanted the appellant to take any property on behalf of, or in trust for, the Bretuo family, he would have said so. In the absence of any such express or implied stipulation, it is not warranted by the rules of construction to say that clause (13) must be understood in the sense advocated by the respondent. I think it is wrong for the Court of Appeal to accept the respondent’s contention.

The argument made by the respondent and accepted by the Court of Appeal that the testator made a specific devise to the appellant in clause (7) and would have been equally specific in clause (13) if he had wanted the appellant to take absolutely has no impression on this case. The said clause, as I have indicated, is effective to gift away any property to the appellant. I do not know of any rule of law which says that a testator cannot make separate devises to the same person in different clauses in the same will. And there are no magic words which alone can create an absolute interest. Since the device in clause (7) does not in any way conflict with the device in clause (13), I do not see any difficulty in giving effect to both. It was rather for the testator to have made it clear that he wanted the appellant to take the residuary estate on behalf of the family. I hold that the Court of Appeal erred in its conclusion on this point.

What is more, the Court of Appeal failed to consider the Intestate Succession Law, 1985 (PNDCL 111) and its impact on succession in Ghana today. If that court had adverted its mind to PNDCL 111, it would have realised that the respondent cannot succeed on his claim. PNDCL 111 has changed the face of the law on succession under intestacy. The old law, prior to PNDCL 111, was generally that upon the death intestate of a Ghanaian his self-acquired property became family property. The family appointed a customary successor to administer the estate on behalf of the family. The system under the customary law was fraught with problems and anomalies and offered very little protection to the nuclear family, ie husband, wife and children. PNDCL 111 was [p.355] of [2001-2002] 1 GLR 339 passed to reverse the situation. PNDCL 111 does not apply at all where the deceased leaves behind a valid will, except in cases where the will does not cover all his property, in which event, the deceased is said to have died partially intestate and PNDCL 111 will then apply to that part of the property which is not disposed of in the will: see section 2 of PNDCL 111.

What we must remember is that PNDCL 111 itself provides the scheme of distribution, giving priority to the spouse and children over all other beneficiaries, reserving for the wife and children household chattels exclusively and also houses (if any) according to the size of the estate and the number of the beneficiaries. In that scheme of distribution, only a small fraction devolves in accordance with customary law. In a claim like the instant one before us, therefore, I think that it is necessary for the respondent to identify the particular property he is claiming for the family assuming that his claim that clause (13) of the will does not vest ownership of the alleged property in the appellant is acceptable. This is because if that alleged residuary property does not go to the appellant, it would only fall into intestacy and liable to be distributed under PNDCL 111; it will not automatically devolve on the family of the deceased. To that extent I agree with the appellant that the judgment of the Court of Appeal is wrong in law.

On the whole the majority decision of the Court of Appeal that the appellant is to take the residuary estate in trust for the family is erroneous and not supported by any evidence; and the order bearing on the appellant to administer and manage it on behalf of the family cannot be allowed to stand.

The appeal is accordingly allowed. The judgment of the Court of Appeal is hereby set aside, and the judgment of the High Court is restored.

Bamford-Addo JSC. I agree.

Ampiah JSC. I agree.

Kpegah JSC. I agree.

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Lamptey JSC. I agree.

Appeal allowed.

DRKS