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Probate?-Will?-Death of executor?-Heir and successor by customary law entitled to letters of administration with will annexed?-Wills Act 1837, ss. 9 and 13.


The testator made a "paper writing" dated 9th July, 1913, disposing of his estate and appointing one Kwaku Baffu to bury him, pay all funeral expenses [p.196] and to succeed him according to Fante custom. On his death many years ago no application was made for a grant of probate by Kwaku Baffu who also since died. A dispute having arisen over one of the testator's properties, the heir and successor of Kwaku Baffu according to customary law, applied for a grant of probate.


APPLICATION for grant of probate.

The application as expressed in the motion paper and supporting affidavit is for grant of probate in respect of the paper-writing bearing the date 9th day of July 1913 and the signature by mark of Opanin Yena of Odoben, now deceased, and also the signature by marks of six witnesses all of whom are also now deceased, which purports to be a testamentary instrument of the said Opanin Yena.

The affidavit in support of the application disclosed that Opanin Yena died a long time ago, but did not disclose the reason for the long delay in making this application as appears to be necessary according to Rule 45 of the Rules, Orders and Instructions for the Registrars of the Principal Registry of the Court of Probate in respect of Non-Contentious Business which provides that:?-

"In every case where probate or administration is for the first time applied for after the lapse of 3 years from the death of the deceased the reason for the delay is to be certified to the registrars."

I however requested counsel for the applicant to state from the Bar the reason for the delay, and I am satisfied with the explanation which counsel gave, after consultation with the applicant, that all concerned with the document or instrument being illiterate, nobody knew that the instrument [p.197] had to be submitted to the court for scrutiny and validation until quite recently when, upon a dispute arising concerning one of the properties comprised in the instrument, the applicant sought the advice of counsel and was then advised about the necessity of making this application. The instrument contained the following material and/or operative clause:

?"I do hereby avouch and declare one the said Kwaku Baffu, his heirs, executors administrators and assigns to bury me on death (paying all necessary expenses towards my death) and to succeed me on all and every points naturally according to Fante Custom; and that no other nor any man nor woman has no right to say or ask anything to or from Kwaku Baffu his heirs executors administrators and assigns.?"

It will be noticed in the first place that the document or instrument does not contain any express appointment of a named or nominated executor. The appointment of an executor may however be implied, as was pointed out in In the Goods of Pamela Cook ([1902] P. 114) in which it was held that:?-

?"A simple direction to a certain person to pay debts of the testatrix, without any bequest to him and without specifically appointing him as trustee, may be enough to constitute him executor according to the tenor.?"

As therefore Kwaku Baffu was specifically directed by instrument to bury the testator and pay his funeral expenses, it would seem that he was impliedly appointed executor, and, if he had been alive, could have properly brought and maintained this application for grant of probate. But he is dead and the instrument does not contain any other express or implied appointment of an executor, and it seems to me therefore that this application for grant of probate is conceived and cannot be granted.

It has however been explained in In the Goods of Pryse ([1904] P. 301 at p. 303) by Vaugham Williams, L.J. that:?-

?"Now it is admitted, . . . that for a very large number of years?-one hundred years or more?- the practice of the Probate Court in cases where some one is not named as executor in a will and no duties are indicated in the will that would constitute him executor thereof according to the tenor, but who has such as interest that, in spite of not being named as executor, he might be looked to to act as such, has been, not to grant probate, but to grant letters of administration with the will annexed.?"

It seems clear therefore that the applicant as heir and/or successor according to customary law of Kwaku Baffu now deceased has, in the words of Vaughan-Williams, ?"such an interest that, in spite of not being named as executor, he might be looked to to act as such?"?-and could properly maintain an application for grant of letters of administration with the will annexed. Accordingly, in the larger interest of justice, I have decided to treat this application for probate as one for letters of administration cum testamento annexo. That it is competent for the court to do this is beyond question. So in In the Goods of Oliphant (1 Sw. Tr. pp. 525. 527) upon an application for probate of a will stating:?- "I leave all the [p.198] property and effects possessed by me at the time of my decease, to my dear wife"?-it was held as follows:?-"In the present case Mrs. Oliphant is the universal legatee, and must take administration with the will annexed in that character."

It falls next to consider whether the instrument is a "Testamentary" one at all. As to that, Mortimer in his Law and Practice of the Probate Division of the High Court of Justice (more popularly called Mortimer's Probate) 2nd ed. at p. 117, has explained that:?-

"Any document duly executed in accordance with the requirements of the statute [Wills Act, 1837] however irregular in form or inartificial in expression, is entitled to operate as a will and to be admitted to probate, provided the person executing it intended that it should not take effect until after his death, and it is dependent on his death for its vigour and effect,"

There are many judicial pronouncements stressing that point, namely, that the crucial or decisive character or feature about a document or instrument which gives it its testamentary character or nature, is the characteristic or feature that the provisions in the document or instrument affecting transfer of property by way of gift, are intended and expressed to come into force and operation only by and after the death of the owner of the property making the document or instrument. The following may be referred toFirstly, Sir John Nicholl in King's Proctor v. Daines (3 Hag. Ecc. 218 at p. 220):

?"It is true that if, in point of form, it is drawn up as a deed, yet if it appears, from something in the instrument itself, that it was intended to convey a benefit upon and after death, it may, notwithstanding the apparent form, operate as a will; or if it is equivocal or silent, it may be proved by extrinsic circumstances to have been intended to convey a benefit upon and after death, it may, notwithstanding the apparent form, operate as a will; or if it is equivocal or silent, it may be proved by extrinsic circumstances to have been intended to operate as a testamentary disposition. Most of the cases upon the subject are to be found referred to in Thorold v. Thorold (1 Phill. 1) and in the subsequent case of Masterman v. Maberly (2 Hagg. Ecc. 225) . . . . . . . . If there is any 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; and secondly, that death was the event that was to give effect to it, then, whatever be its form, it may be admitted to probate as testamentary."

Sir John Nicholl's statement of principle was adopted by Williams On Executors and Administrators (11th ed. p. 80) and is cited and approved by Sir James Hannen in the case of Milnes v. Foden (15 P.D. 105 at p. 107) where he added the following observation of his own:?-"It is not necessary that the testator should intend to perform or be aware that he has performed a testamentary act."

Secondly, in Robertson v. Smith ((1870) L.R. 2 P. D. 43) where a paper commenced:?- "I hereby make a free gift to M. R. of 60 deposited by me with?-Branch of the?-Bank" Lord Penzance having admitted parol evidence to explain the writer's intention, and being satisfied therefrom [p.199] that he intended the operation of such paper to be dependent on his death, before decreeing probate to be granted, said as follows (p. 45):?-

"The guiding principle in determining whether a paper is or is not of a testamentary character, has been determined to be this?-that it will be held testamentary if it were the intention of the testator that the gifts made by it should be dependent on his death."

It would seem to be clear therefore that the instrument with which we are concerned, which provides that Kwaku Baffu and his heirs shall bury the maker or writer of the instrument (Opanin Yena) and succeed him (or to his estate) undoubtedly satisfied the test of being "testamentary" and this notwithstanding the fact that there is no declaration or expression contained in it that it is his " Last Will and Testament."

The next consideration is whether or not the making or execution of the document or instrument complies with the requirements of the Wills Act, 1837 (7 Will 4 1 Vict.c.26) which provides in its material sections 9 and 13, as follows:?-

?"No will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned; (that is to say,) it shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary. (Section 9).

"Every will executed in manner herein-before required shall be valid without any other publication thereof (Section 13)."

Attention should at this stage be drawn firstly to section 17 of the Courts Ordinance Cap. 4 in force at the date of this application which was in the following terms:?-

"The jurisdiction hereby conferred upon the Supreme Court in Probate, Divorce and Matrimonial Causes and proceedings may, subject to this Ordinance and to Rules of Court, be exercised by the Supreme Court, in conformity with the law and practice for the time being in force in England."

Attention should be drawn next to the comments or observations of Redwar in his Comments on Some Ordinances of the Gold Coast, published in 1909, at page 19 of which he first of all referred to the English case of In the Goods of Foy (2 Curt. 328), in which the view was expressed that the Wills Act, 1837, did not apply to India and the colonies unless it was adopted or re-enacted by the legislature of any dependency. Redwar then went on to observe that by the provisions as to the court's jurisdiction in probate and matrimonial causes above set out (which at the date of the publication of the Comments were contained in section 16 of the Supreme Court Ordinance, No. 4 of 1876), "It has always been assumed that.... this Act [the Wills Act. 1837) is made to apply", within the jurisdiction of the Supreme Court.

The earliest reported case declaring the Wills Act, 1837, to be in force within the jurisdiction of the Supreme Court was Re Isaac Anaman (1894) Sar. F.C.L. 221) and Sarbah, in his Fanti Customary Laws (2nd ed. 1904), [p.200] relying on that case, accordingly stated under the chapter dealing with "Testamentary Dispositions" (ibid at p. 100) that:?-

"Persons coming under the Marriage Ordinance, 1884, should clearly understand that, unless they leave a will made in strict compliance to and in accordance with the English Statute of Wills, they die intestate, for at present no provision exists for the granting of probate on the recognition of any other form of will."

Although Redwar expresses a dissentient view the decision in Re Isaac Anaman (supra) has been consistently followed in subsequent cases up to date, see, for example, Re Otoo (Div. Ct., 1926-29 84).

The Wills Act 1837, being in force locally, does the evidence available sufficiently enough establish that the execution of the testamentary instrument with which we are concerned was in accordance with the requirements of that Act? It will be observed that there is not available the evidence of any of the attesting witnesses whose names appear on the face of the instrument to explain to the court the circumstances in which the name by mark of the testator and of the attesting witnesses came to be put on the instrument. In respect of such circumstance however, Mortimer has explained firstly that:?-

It has long been held that there is no absolute necessity for positive affirmative evidence of due execution in order to enable the Court to pronounce in favour of a will." (Probate at p. 123),

and in that connection referred to the case of Blake v. Knight (3 Curt. 547 at p. 561) where Sir Jenner Fust observed as follows:?-

?"Is it absolutely necessary to have positive affirmative testimony by the subscribed witnesses that the will was actually signed in their presence, or actually acknowledged in their presence; is it absolutely necessary, under all circumstances, that the witnesses should concur in stating that these facts took place; or is it absolutely necessary, where the witnesses will not swear positively, that the Court should pronounce against the validity of the will? I think these are not absolute requisites to the validity of a will; I think the Court must take into its consideration all the circumstances of the case, and judge from them collectively."

Mortimer explains further (ibid at p. 441-442) that:?-

?"If both subscribing witnesses are dead, or if no affidavit can be obtained from either of them, resort may be had to other persons, if any, who were present at the execution of the will."

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; and how in the presence of the assembly, including the witnesses, he signed the document and in his presence the witnesses also attested the document. Although she is illiterate and is not therefore able to identify the document, her evidence as to the contents of the document and the witnesses who attested with their signature by marks, and above all the writer thereof, coupled with the evidence of the third witness in [p.201] these proceedings, Mr. Blankson, who identified the handwriting of the writer, J. W. Annan now deceased, and deposed further that he saw and read the document to his relative Kwaku Baffu the same day it was made, clearly and sufficiently enough identify Exhibit "A" as the document of which Effuah Fofie spoke in her evidence. There is therefore direct evidence available, clearly and sufficiently enough establishing the due and proper execution of the document Exhibit "A" in accordance with the requirements of the Act (7 Will. 4 1. Vict.c.26), in spite of the absence of an attestation clause. But even if it could be made out that the direct evidence was not sufficient, Mortimer has further explained (ibid at p. 125) that: ?-

"Where a will which bears upon the face of it what purport to be the signatures of the testator and two witnesses and appears in other respects to have been duly executed, is produced to the Court, and it is proved that both [or all] attesting witnesses are dead, the Court on proof that the signatures of the testator and witnesses are in their respective handwriting, will assume that the testator and the subscribing witnesses all signed in the presence of each other, so as to satisfy the requirements of the statute."

So in In the Goods of Peverett [1902] Ch. 205 the presumption was allowed to prevail, although there was no attestation clause.

I am satisfied therefore that letters of administration may properly issue with will annexed in this case, and I accordingly hereby order that they should be issued to the applicant John Mayall Assimah so soon as he has filed an affidavit disclosing (1) the approximate date of death of Opanin Yena and the reason for the delay in making this application; (2) the full details of the estate of the deceased at the time of his death and the condition of the said estate at date hereof; and (3) the object or purpose why application is now made.


<P>Order that letters of administration with will annexed be issued</P>

Plaintiff / Appellant

Koranteng Addow for the applicant.

Defendant / Respondent


(1)   In the Goods of Pamela Cook [1902] P. 114.

(2)   In the Goods of Pryse [1904] P. 301.

(3)   In the Goods of Oliphant (1860) 164 E. R. 843; 1 Sw. & Tr. 525.

(4)   King's Proctor v. Daines (1830) 3 Hag.  Ecc. 218; 162 E.R. 1136.

(5)   Milnes v. Foden (1890) 15 P.D. 105.

(6)   Robertson v. Smith (1870) L. R. 2 P. & D. 43.

(7)   In the Goods of Foy (1839) 2 Curt. 328; 163 E.R.428.

(8)   Re Isaac Anaman (1894) Sar.  F.C.L. 221.

(9)   Re Otoo Divisional Court, 1926-29, 84.

(10) Blake v. Knight (1843) 3 Curt. 547; 163 E.R. 821,

(11) In the Goods of Peverett [1902] P. 205.

Note.—In Coleman v. Shang [1959] G.L.R. 391, the Court of Appeal expressed the opinion that the case of Re Otoo (deceased) supra had been wrongly decided.

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