POKU AND OTHERS VRS. SEKYERE (C7/95/2017) [2023] GHAHC 603 (10 November 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT ‘6’ – GENERAL JURISDICTION – HELD IN KUMASI IN THE ASHANTI REGION BEFORE HER LADYSHIP JUSTICE PATRICIA QUANSAH (JUSTICE OF THE HIGH COURT) ON FRIDAY THE 10TH OF NOVEMBER 2023. SUIT NO.: C7/95/2017 1. KWASI OBENG POKU 2. REGINA OBENG 3. AGNES OBENG 4. MARY OBENG 5. GRACE OBENG 6. ALICE OBENG 7. JOHN ERNEST OBENG 8. ATTA KWABENA OBENG ALL OF PLOTS 10 & 11 BLOCK ‘B’ ADIEMBRA-KUMASI 9. MONICA OBENG 10. VERA OBENG PLAINTIFFS JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 1 11. LAWRENCE OBENG ALL OF H/NO. F70, ASAWASI-KUMASI VRS OSEI OWUSU SEKYERE DEFENDANT (EXECUTOR OF THE ESTATE OF THE LATE JOHN ERNEST OBENG alias YAW OBENG) ________________________________________________________________ 1ST, 3RD, 4TH, 7TH, 9TH AND 10TH PLAINTIFFS PRESENT 2ND PLAINTIFF REPRESENTED BY AMA AGYEMANG 5TH PLAINTIFF REPRESENTED BY KWASI KWARTENG 8TH PLAINTIFF REPRESENTED BY YAW KWARTENG 11TH PLAINTIFF REPRESENTED BY ADUSEI POKU 6TH PLAINTIFF ABSENT DEFENDANT REPRESENTED BY SAMUEL OPOKU AGYEMANG _______________________________________________________________ JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 2 JUDGMENT I. INTRODUCTION [1] The Plaintiffs are the children of the late John Ernest Obeng also known as Yaw Obeng who died on the 11th day of May 2016. The Defendant, as can be seen from the trial, appears to be a friend/tenant of the deceased, John Ernest Obeng. The Defendant is also said to be the named Executor of a will purported to be the last will and testament of the late John Ernest Obeng but which the Plaintiffs herein contest. The entire controversy in this matter revolves around whether or not the last will and testament of the late John Ernest Obeng was validly executed, thereby rendering the last will and testament of the late John Ernest Obeng valid or otherwise. It has thus become the duty of the Court to determine the validity or otherwise of the will of the deceased and it is in that regard that the Plaintiffs herein sought the following reliefs in the instant suit: II. RELIEFS SOUGHT BY THE PLAINTIFFS a. A declaration that the late John Ernest Obeng a.k.a Yaw Obeng lacked the testamentary capacity to execute the purported Will dated the 14th of June 2013. JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 3 b. A further declaration that the purported signature and/or thumbprint on the said Will was not made by the late John Ernest Obeng a.k.a Yaw Obeng. c. A declaration that the late John Ernest Obeng a.k.a Yaw Obeng during his lifetime gifted some of the properties in the said Will to other people and as such had no capacity to devise same in the said Will. d. A declaration that the late John Ernest Obeng died intestate. e. Any other relief(s) deemed fit by the Honourable Court. III. FACTS OF THE PLAINTIFFS’ CASE [2] According to the Plaintiffs, their father died on the 11th of May 2016 after a protracted illness, and it was only after the final funeral rites that a will, purporting to be that of their late father, surfaced out of the blue. The Plaintiffs and other relatives of their late father were thus summoned to appear before the Registrar of the High Court, Kumasi, and the said will was read. It was then that the Plaintiffs stated they realised that the said will could not have emanated from their late father, considering the contents therein. The Plaintiffs thus filed a caveat, to prohibit the grant of probate of the purported will on the 29th of September 2016. [3] Thereafter, the Plaintiffs stated they went through the necessary requirements of filing their affidavit of interest, disclosing the reasons for the caveat; but the caveat was removed upon an application by the Defendant and the probate of JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 4 the contested will was granted to the Defendant herein. The Plaintiffs continued to aver that they were forced to file a motion on notice for the deposit of the probate and same was granted by the Honourable Court for the Defendant to deposit with the Registrar of the High Court, the Probate of the late John Ernest Obeng. [4] According to the Plaintiffs, some of the properties and/or devises made in the said will related to properties that had already been gifted to some of the children of the late John Ernest Obeng, as well as to other relatives by the late John Ernest Obeng during his lifetime. Indeed, some of these aforesaid gifts were made in the presence of witnesses and customary “aseda” was given by the recipients or donees, again in the presence of witnesses, and so the late John Ernest Obeng could not purport to devise same in the contentious will. Further, some of the gifts inter vivos made by the late John Ernest Obeng had even been reduced into writing or been documented with witnesses present at the time, and so all those gifts/properties could not have been again devised and/or bequeathed to other persons in the purported will of the deceased. [5] The Plaintiffs continued to contend that at the time of the execution of the alleged will, i.e. on the 14th June 2013, the late John Ernest Obeng was mentally unstable with challenging health problems and as such did not have the compos mentis and or the mental capacity to authorize and or to make the purported will. Indeed, prior to his death and during the last six (6) years of his lifetime, the deceased was saddled with various health complications such as forgetfulness, non-recognition of his own children, unstable mind, speech and sight impairment etc, and so he could not have appreciated the contents and the execution of the said will on the said date of the 14th June 2013. JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 5 [6] Again, the purported signature and/or thumbprint found on the alleged will was also procured by fraud, since according to the Plaintiff, same were not the marks or deed of the late John Ernest Obeng. The Plaintiffs thus alleged fraud against the Defendant herein, as Executor of the alleged will and particularised the fraud on the sole ground as follows: a. PARTICULARS OF FRAUD 1. That the Defendant and one Samuel Opoku Agyeman, without the consent and authority of the deceased (John Ernest Obeng a.k.a Yaw Obeng) procured his signature and thumbprint in the aforesaid Will, alleging same to be the signature and thumbprint of the deceased. [7] The Plaintiffs averred that unless compelled by the Honourable Court, the Defendant and his cohorts will continue to perpetuate their fraudulent acts and conduct on the children of the late John Ernest Obeng and deprive them of their just inheritance, because even during the pendency of this action in Court, the Defendant purported to vest some of the deceased’s properties in some so- called named beneficiaries, causing those beneficiaries to demand rent from properties belonging to the deceased to the detriment of the Plaintiffs, i.e. the deceased’s children; and his surviving wife. The Plaintiffs concluded by stating that the Defendant’s conduct was illegal, unlawful and unconscionable and neither did he have a defence to the said suit, and so the Plaintiffs prayed the Court for the above reliefs. IV. DEFENCE JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 6 [8] In his defence, the Defendant herein, save admitting that he was the named Executor in the purported will of the deceased, denied each and every allegation made against him in the Plaintiffs’ pleadings, contending instead that the late John Ernest Obeng validly executed a will and that the said will was at all material times in the custody of the Defendant herein, and so the will did not suddenly surface as the Plaintiffs would like the Court to believe. The Defendant added that he did indeed obtain probate of the will of the deceased, but the Plaintiffs caveated, as they averred; and so he was unable to perform his duties as an Executor of the estate of the deceased. The will was however valid, and the lawyer who drafted same for execution by the Testator was still alive and would therefore be in a better position to answer allegations about the lack of compos mentis on the part of the testator, he continued. The Defendant further vehemently denied any allegation of fraud against him, contending that as an Executor, he had no inherent power to vary or modify the devises and bequests in the will simply because allegations of gifts inter vivos had been made by some beneficiary who appeared dissatisfied with his or her devise under the will. [9] The Defendant thus contended that he was scandalized by any allegation of stealing from the estate of the deceased as made by the Plaintiffs against him, as per paragraph 17 of the statement of claim, which stated that the Defendant was “reaping from where he has not sown”. The Defendant thus denied that he had acted in any manner illegal, unlawful or unconscionable as the Plaintiffs stated. He contended that he only sought to vest one property in Adum in the JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 7 named beneficiaries after probate had been granted to the will, but that was before the order to deposit the probate in Court. The Defendant concluded by asserting that all the allegations of the Plaintiffs against the Defendant were unfounded and so the Plaintiffs were not entitled to the reliefs sought, as the Plaintiffs’ claims were only calculated to delay the administration of their father’s estate due to their dissatisfaction with devises and bequests made freely and voluntarily by the testator who was fully compos mentis in the office of his lawyer at the time. V. PLAINTIFFS’ REPLY TO THE STATEMENT OF DEFENCE [10] The Plaintiffs filed a Reply to the Defence, joining issues with the Defendant; and further denying the material averments of the Defendant’s defence. Pleadings came to a close and the following legal issues were set down for the trial at the Application for Directions stage: VI. LEGAL ISSUES SET DOWN FOR THE TRIAL 1. Whether or not the late John Ernest Obeng a.k.a Yaw Obeng had the testamentary capacity to execute the purported will dated 14th June 2013. 2. Whether or not the execution of the purported will of the late John Ernest Obeng a. k. a Yaw Obeng was obtained by undue influence and fraud. JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 8 3. Whether or not the late John Ernest Obeng a. k. a Yaw Obeng gifted out any or some of the properties devised in the purported will during his lifetime and therefore could not devise same in his purported will. (sic) 4. Whether or not the Plaintiffs are entitled to their reliefs. 5. Any other issue(s) raised by the pleadings. [11] The parties and their Counsel were thereafter ordered to file their respective witness statements, after a number of intervening issues were disposed of by the Court. Case management conference was undertaken subsequently, after which the trial commenced. VII. WITNESS STATEMENTS OF THE PLAINTIFFS AND THEIR WITNESSES [12] At the commencement of the trial, the Plaintiffs and their Counsel caused subpoenas to be issued to two law clerks from the law firm where the purported will of the deceased, John Ernest Obeng, was said to have emanated from, J. J. Peele and Associates, Kumasi. PW1 was one John Nii Armah and he confirmed that he was a law clerk from the above firm. He again confirmed that the deceased, John Ernest Obeng had been a client of the Law firm, J. J. Peele & Assoc. before his death; and had indeed come to the law firm in a wheelchair, in the company of one Samuel Opoku Agyemang, to have his will amended. The deceased was pushed into the office of the Senior lawyer of the firm, Mr Arnold Agyemang Prempeh by the said Samuel Opoku Agyemang; and according to PW1, the said Samuel Opoku Agyemang came to see PW1 with a piece of paper, stating that the deceased wanted to make the amendments on the piece of paper in his will so PW1 should assist. JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 9 [13] Per PW1, having saved the previous will of the deceased in the office computer, he pulled it up, made the necessary amendments in accordance with the piece of paper brought to PW1 by Samuel Opoku Agyemang and he printed same for Samuel Opoku Agyemang. The Testator was then brought to the office where PW1 was and he was assisted to sign the will after it had been amended. The thumbprint of the Testator was appended as well. Further in the examination-in-chief of PW1, this is how he described the events leading to the execution of the alleged will: Q: After that, what happened? A: After I had effected the changes, I informed the said Samuel Opoku Agyemang to bring the testator. The testator was still in my boss’ office so he was brought out and I gave him the Will to sign. The old man was in a wheelchair, but he did not come into the office in the wheelchair. The wheelchair was left in front of the office and he was helped into the office by Samuel Opoku Agyemang. When I asked the testator to sign, he could not see anything and also could not sign, because he was quite weak. I therefore held his right hand and helped the testator to sign. After that, I took his right thumb and thumb printed the document as well. Q: Did you read over and interpret the contents to the testator? A: I did not, my Lord. I did not read anything over to him. JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 10 Q: Mr. Armah, you earlier told the Court you did not explain the contents to the testator. What happened then? A: After I had held his right hand to sign and then I thumb printed with his right thumb, I signed as a witness to demonstrate that I had seen the testator sign the Will. PW1 further added in his examination – in – chief: Q: Look at the last page of the Will, where you witnessed, together with Adu Gyamfi Kwame; there is a last paragraph there. By Court: Counsel reads out the said last paragraph. Q: Did you read that one to the testator? The said portion was not filled. Can you tell the Court the reason why? A: It must have been an oversight because no one including me read out that portion to the testator, that is why it was not completed; my Lord. [14] PW2, Kwame Adu Gyamfi, was the second office clerk from J. J. Peele & Assoc. and he also informed the Court that at the time the deceased was brought into their offices by his grandson, Samuel Opoku Agyemang, the deceased was in a JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 11 wheelchair and was blind and deaf at the time. PW2 also confirmed that amendments were caused to be made to the existing will of the deceased from a piece of paper brought to the clerks by the said Samuel Opoku Agyemang, and the deceased was assisted to sign and thumbprint the newly amended will, but PW2 again confirmed that no one read over and explained the contents of the will to the deceased, because according to PW2, the deceased at the time was hard of hearing. PW2 thus stated: Q: Where was your boss when all this was going on? A: Our boss was in the office. When Nii Armah was done, the said Samuel Opoku Agyemang said he was taking the old man home. Samuel Opoku Agyemang told Nii Armah that after depositing the will at the Court, Nii Armah can take the old man’s copy home, and Samuel Opoku Agyemang will come for it. When the testator came therefore, no one read over and explained the will to him because he could neither see nor hear. Even when we spoke, the old man did not hear. Q: What about your boss, did he read over and explain to the testator? A: No, my Lord. It is usually John Nii Armah who reads over wills to testators; but John Nii Armah did not read over and/or explain the will to the testator because he could not even hear anything. After that, I helped Samuel Opoku Agyemang to put the old man back in the wheelchair and they left. JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 12 [15] The 7th Plaintiff then testified for and on behalf of the other Plaintiffs; and he repeated most of the averments in the Plaintiffs’ pleadings, adding that the deceased gifted most of his properties out during his lifetime. At paragraph 11 following of his witness statement, the 7th Plaintiff made a rather tall list of assertions as follows: 11. My father during his lifetime gifted house no. 01181 Ash town to Comfort Yeboah, his sister, and my father’s said sister gave the customary “Aseda” and took over possession and have been exercising control over same. This gift was made in the presence of witnesses. (sic) 12. My father again gifted house no. CPC Tafo to Mary Konadu, another sister in the presence of witnesses. The customary “Aseda” was given and the said Mary Konadu took over possession and control over the house and same continue to be under her control and management. (sic) 13. My father during his lifetime gifted a house with no. plot 66 Block “E” Medoma to Evelyn Obeng a. k. a Afua Konadu with his 4th wife in the presence of witnesses. The customary “aseda” was given and Ama Konadu took over control and possession of same. 14. The house number 8, 3rd street, Buokrom Duase New Site was gifted to Theresa Akyaa (5th wife) by my father while alive in the presence JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 13 of witnesses. As usual the customary “aseda” was given and she took over control and possession of the house. 15. While alive, my father gifted House Number 45A Block “Q” Yenyawoso to Maame Nwotwewaa (my father’s auntie) in the presence of witnesses. The customary “aseda” was given and she took over control and ownership of the house. After her death, her daughter Afia Kobi is now in control and possession of the house without any interference from anybody. 16. My father also during his lifetime gifted house number plot 10 Block 14, Adiebeba, Kumasi to Mary Obeng (daughter) in the presence of witnesses. The customary “Aseda” was given and Mary took over ownership of the property. 17. In addition to this, my father gifted a cocoa farm at Twifo Heman to Yaw Owusu (my father’s brother) in the presence of witnesses. The customary “Aseda” was given and the said brother took over ownership of the Cocoa Farm. 18. My father in his lifetime gifted house no. 10 Block “B” Adiebeba (or this one, H/No. Plot 10 and 11 Block “B”, Adiebeba, Kumasi to Mrs. Felicia Obeng a.k.a Maame Fatima (1st wife) to her in the presence of witnesses. The customary “Aseda” was given and my mother took over ownership of the house and stayed in same until she died. (sic) 19. Also my father in his lifetime gifted a cocoa farm at Sefwi Bekwai to Ama Fatima my mother in the presence of witnesses. The customary JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 14 “Aseda was given and my late mother took over ownership and exercised control over same until her death. 20. House number OTB 565, Adum, Kumasi and H/No. B/15 Akrade, Eastern Region was gifted to me and my siblings (Ama Fatima’s children) by my father while alive in the presence of witnesses. The customary “Aseda” was given and the children took over ownership of the House. Rent from the house were being collected by the children. 21. The late John Ernest Obeng in addition to paragraph 20 supra stated that, he will enjoy the proceeds from the house OTB 565, Adum, Kumasi in his lifetime and my sibling as said in paragraph 20. (sic) 22. Again, while my father was alive he gifted a store each to Ama Fatima, Grace Obeng and John Ernest Obeng Junior at house no. OTB 656 Adum in the presence of witnesses. The customary “Aseda” was given and each of these people took over ownership of their respective stores. But after the death of Ama Fatima same was given to Regina Obeng (our elder sister) and the aseda was duly done. 23. My father while alive gifted house number plot no. 221/5 New Abossey Okai to Adwoa Afreh (sister) in the presence of witnesses. The customary “aseda” was given and the said sister of my father took over ownership and possession of the house. JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 15 [16] The entire gravamen of the 7th Plaintiff’s witness statement was thus to the effect that the Plaintiffs’ father, the late John Ernest Obeng, gifted most of his self-acquired properties to his children and relatives before his death and so he had no testamentary capacity to devise those same properties in any purported will. [17] The 5th Plaintiff also testified and she sought to state, like the 7th Plaintiff, that their late father made gifts inter vivos to various members of his family before his death. P5 also went on to name some of the persons to whom gifts had been made and she again reiterated the fact that prior to the death of the late John Ernest Obeng, he was infirmed and besieged with a number of ailments rendering him mentally incapable of comprehending the devises in any will, and so he could not have validly executed the will said to be his deed on the 14th of June 2013. The Plaintiffs then closed their case and the Defendant was made to state his side of the story. VIII. WITNESS STATEMENT OF THE DEFENDANT AND HIS WITNESS [18] The Defendant testified by himself and stated (contrary to his pleadings) that like the children of the deceased, who happened to be his cousin, he did not know the deceased died testate until the family was invited to the Court for the reading of the will. It was also only during the reading that he got to know he had been made an Executor of the will of the deceased, contrary to what he had pleaded in his defence. The Defendant also tendered in evidence a copy of the will as Exhibit 1. According to the Defendant, after the reading of the will, the family raised some concerns and eventually, the Plaintiffs caused a caveat to JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 16 be issued and served on the Defendant, he stated. The caveat was subsequently removed, and the Defendant stated that he applied for and was granted probate for the estate of the deceased. There was thus nothing untoward or fraudulent in the steps taken by the Defendant to administer the estate of the deceased as an Executor, the Defendant added. [19] It was also never true that prior to the death of the testator, he had a number of health challenges because per the Defendant, the deceased had full control of all his mental faculties and never showed any signs of such health complications as described by the Plaintiffs before his death. Among others, the Defendant contended that the will being contested was prepared by a senior Lawyer of high repute who would not condone any untoward act in the discharge of his professional duties, and so the Plaintiffs’ numerous allegations were baseless and strange; and they were not entitled to the reliefs sought. [20] The Defendant called the lawyer who was said to have prepared the will as DW1. DW1 informed the Court that the deceased had been a client of his law firm since the 1980s thereabouts, adding that the deceased came to DW1’s offices to have a will prepared for him some time in June 2013. Per DW1, that was not the first time a will had been prepared for the deceased, though, but when the deceased came in 2013, he did not appear to be someone of unsound mind. Due to old age, he had issues with his vision and there were also slight disparities in his signature, but apart from that, the late John Ernest Obeng was in his right frame of mind when he had his will prepared, DW1 concluded. The trial came to a close after DW1 had been cross-examined. JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 17 IX. INCIDENCE OF THE BURDEN OF PROOF IN CIVIL CASES [21] This is a civil matter and in law, the burden that is cast on a plaintiff to lead sufficient evidence to enable a finding of fact to be made in his/her favour has been established at sections 10 and 14 of the Evidence Act, 1975, NRCD 323. Section 14 of the Evidence Act supra provides thus: “Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non- existence of which is essential to the claim or defence he is asserting”. In the case of Dzaisu v Ghana Breweries Limited [2007-2008] SCGLR 539, the Supreme Court per Adinyira JSC (as she then was), in expounding on section 14 of NRCD 323, held as follows: “It is a basic principle in the law of evidence that the burden of persuasion on proving all facts essential to any claim lies on whosoever is making the claim.” The Learned Justice of the Supreme Court went on to state: It is trite law that a bare assertion by a party of his pleadings in the witness box without proof did not shift the evidential burden onto the other party. [22] The case of Ackah v Pergah Transport Limited [2010] SCGLR 728 also espoused section 10 of NRCD 323 thus: JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 18 It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility, short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence. This is a requirement of the law on evidence under sections 10 and 11 of the Evidence Decree. X. THE LAW ON THE VALIDITY OF WILLS [22] In the case of Coleman v Shang [1959] GLR 390 – 409, the Court of Appeal, per Van Lare JA (as CJ) held: In this country there are two forms of wills - the will made in accordance with English law, and the will made in accordance with customary law (samansiw, a nuncupative will). Each of these may be valid, if the peculiar requirements for making it are complied with. [23] In the present case, it is a will that is in contention and a will is a statutory testamentary disposition, presently regulated by the Wills Act, 1971, Act 360. Section 1 (1) of Act 360 provides: JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 19 A person of or above the age of eighteen years may in writing and in accordance with this Act, make a will disposing of … property… and the property must be property (a) of that person, or (b) to which that person will be entitled at the time of death, or (c) to which that person may be entitled after death. Section 2 sets out the ingredients of a valid will to include the following: (1) A will is not valid unless it is in writing and signed by the testator or by any other person at the direction of the testator. (2) A signature is not operative to give effect to a disposition or direction which is underneath or which follows it, or which is inserted after the signature has been made. (3) The signature of the testator shall be made or acknowledged by the testator in the presence of two or more witness present at the same time. (4) A signature by any other person at the direction of the testator shall be made by that other person in the presence JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 20 of the testator and two or more witnesses present at the same time. (5) The witnesses shall attest and sign the will in the presence of the testator, but a form of attestation is not necessary. (6) Where the testator is blind or illiterate, a competent person shall carefully read over and explain to him the contents of the will before it is executed, and shall declare in writing upon the will that he had so read over and explained its contents to the testator and that the testator appeared perfectly to understand it before it was executed. (Emphasis is mine) If the above elements are all regular on the face of the will, then this Court would have to uphold the validity of the will. Indeed, Counsel for the Plaintiff, in his address, further cited section 1(2) and (3) of Act 360. [24] I also rely on the case of AKUA MARFOA VRS MARGARET AKOSUA AGYEIWAA (CIVIL APPEAL NO. J4/42/2012) 9THNOVEMBER 2012; in which Baffoe-Bonnie JSC held: The general or common law rule is that a testator of a will is free to make his will and distribute his estate as he pleases. JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 21 He is not bound to leave any fixed portion of his estate to any particular person and he is permitted to be capricious and improvident. As Knight Bruce said in Bird v Luckie (1850) 68 ER 373: “No man is bound to make a will in such a manner as to deserve approbation from the prudent, the wise or the good. A testator is permitted to be capricious and improvident and is more at liberty to conceal the circumstances and the motives by which he has been actuated in his dispositions. Many a testamentary provision may seem to the world arbitrary, capricious and eccentric, for which the testator, if he could be heard, might be able to answer most satisfactorily.” [25] The validity of the will of the deceased, John Ernest Obeng is in question before this Court, and in the case of Mr Senti Michael vrs Rev Father Mon Kwame & Anor [2020] 170 GMJ 146, the Court held: “The legal burden placed in executors named in a Will whenever the validity of the Will is called in question is to lead evidence to demonstrate that the Will is in writing, signed by the testator or some other person at his discretion in the presence of two or more witnesses present at the same time and the witnesses have attested and signed the Will in the presence of each other and the testator.” Further in the case of IN RE ESSIEN ALIAS BAIDOO (DECD.); ESSIEN v. ADISAH AND OTHERS [1987-88] 1 GLR 539 -547, the Court of Appeal held: JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 22 "Since the crux of the matter was whether the will had been signed by the testator, and if so, whether it had been properly executed by him in accordance with the provisions of the Wills Act, 1971 (Act 360), the proof of the affirmative rather lay squarely on those who propounded the will.” [26] The Defendant herein, the Executor of the will in contention, seeking to confirm that the will was validly executed, I find, bears the onus to adduce evidence to establish that the will for which he seeks probate was validly executed in conformity with statute. XI. EVALUATION OF THE EVIDENCE ADDUCED AT THE TRIAL [27] There is no doubt that the Plaintiffs are all the offspring of the deceased, John Ernest Obeng and same was not contested. PW1 and 2, subpoenaed to testify before the Court were both categorical in their testimonies that the deceased was brought to their offices, on the day he was said to have wanted changes made in his will in a wheelchair, and that assertion was also not vigorously contested by the Defendant herein and his Counsel. Further, both PW1 and 2 confirmed to the Court that the deceased was visually impaired and was hard of hearing; and even DW1 informed the Court that due to old age, the deceased had issues with his vision. Indeed, both PW1 and 2 were quite categorical in their assertions that the deceased could neither see nor hear. JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 23 [28 ] The will in contention, tendered in evidence by both sides was also executed on the face of it by the testator, PW1 and 2; but both PW1 and 2 confirmed to the Court that at the time the deceased was brought, he was unable to walk, he had difficulty in signing and so he was assisted by PW1 to make his mark and also to thumbprint the will, to forestall future contests. There is also no doubt that a jurat was added at the end of the will, that the will had been read over and explained to the testator and he appears to have understood the contents before making his mark. The presumption here is that there was the need to take that step with the testator, to enable the testator understand the various devises and bequests in the will that he was said to have amended, because the deceased could not see and he was not the one who personally authorised the amendments (since one Samuel Opoku Agyemang was said to have been the one who had brought the piece of paper with the changes); but that jurat was never completed. [29] PW1, who confirmed to the Court that he drafted and amended the will, categorically stated that he did not read over and explain the contents of the amended will to the deceased because it was an oversight on his part; and indeed, the uncompleted portion of the jurat confirms the assertions of PW1. Further, DW1, the lawyer who was said to have supervised the making of the will also confirmed to the Court that he believed his clerks, PW1 and 2 would do the right thing and so he simply looked over the will and signed. Under cross-examination, DW1 gave the answers below: Q: After the preparation of the document, you did not have the opportunity to interpret and explain to the deceased? JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 24 A: I have said after I had gone through it, I gave it back to the clerks to go and have same executed. After it was executed, it was brought back to me and I signed same. Q: Will you be surprised if your clerks came to Court to tell the Court they never interpreted and explained the contents of the will to the deceased? A: I will be surprised because I know the clerks always do the correct thing. Q: Will you also be surprised to hear that in this instance, the clerks came to Court to say they did not do the correct thing? A: I have worked with the clerks for a long time, so I was surprised they did not do the right thing. [30] The question for this Court is: Does this singular act of not reading over and explaining the contents of the will to the deceased invalidate the will in issue? Further, Counsel for the Defendant sought to state that there were other previously validly executed wills of the deceased or at least, there was a will validly executed by the deceased, prior to the current will in contention, when he posed the questions below to PW1 under cross-examination: Q: I am putting it to you that between 2001 and 2003, the testator executed a will which was deposited at the High Court. A: I cannot recall that, my Lord. JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 25 Q: I am putting it to you that on the 5th July 2000, the testator deposited a will at the Registry of the High Court. Plaintiff’s Counsel: - I have a difficulty in the kind of questions being asked. The will(s) being talked about are not in evidence… By Court: - Counsel should not pre-empt answers for the witness. Witness to answer. A: I cannot remember, my Lord. Q: The said will deposited by the testator at the High Court on the 5th July 2000 was made through your Law Firm. A: Unless I see a copy of the said will. I cannot confirm the above, my Lord. Q: On the 15th November 2007, the testator again deposited another will at the High Court. A: It’s been so long, my Lord. I cannot remember. Q: That will was also made through your law firm. A: My Lord, I need to see a copy of the will to verify. I cannot recall off the top of my head. JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 26 Q: 28th January 2010, the testator deposited another will at the High Court Registry. A: I cannot remember, my Lord. All I remember is the disputed will before this Court and the previous ones withdrawn before the disputed will. Q: On the 3rd June 2011, the testator filed a notice of withdrawal of the will deposited at the High Court. A: I cannot recall, my Lord. The one I remember is the disputed will. [31] Having suggested that there was a validly executed will or probably wills made by the deceased prior to the making of this will in contention, the onus was on the Defendant and his Counsel to produce the said will(s), but no such will(s) was/were produced before the Court all throughout the trial. This Court therefore only has a determination to be made in respect of the present will in contention; and on that basis, I proceed to deal with the legal issues set down for the trial. XII. LEGAL ISSUES (1) ISSUE ONE (1) - Whether or not the late John Ernest Obeng a.k.a Yaw Obeng had the testamentary capacity to execute the purported Will dated 14th June 2013. JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 27 [32] The Black’s Law Dictionary (8th Ed. 2004) defines testamentary capacity as follows: The mental ability that a person must have to prepare a valid will. This capacity is often described as the ability to recognize the natural objects of one's bounty, the nature and extent of one's estate, and the fact that one is making a plan to dispose of the estate after death. Traditionally, the phrase “of legal age and sound mind” refers to the testator's capacity. Also termed disposing capacity; disposing mind; sound mind. [33] Testamentary capacity thus means the mental state of a testator at the time of making his or her will. In the case of In re Cole (Decd.); Cudjoe v. Cole [1977] 2 GLR 305, CA per Archer J. A. (as he then was) held: “In determining whether a testator had the mental capacity to make a will, the law required that there should be a sound disposing mind both at the time when the instructions for the will were given and when the will was executed. If the will was shown to have been drawn in accordance with instructions given while the testator was of sound disposing mind, it was sufficient that when he executed it, he appreciated that he was being asked to execute as his will a document drawn in pursuance of those instructions, though he was unable to follow its provisions. The law presumed that the testator was sane at the time when he gave the instructions for the will, and when it was executed. … JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 28 However, since the testator's sanity was questioned by the respondent, the onus lay on the appellant to prove that the testator had a sound disposing mind…” [34] In plain English, the testator ought to have had the mental fortitude and common sense in order to make a valid will. In the present case, the Plaintiffs contend that their late father had been bedevilled with various ailments some six years prior to his death and was thus so infirmed that he had no mental capacity and was not compos mentis to make a will. PW1 and 2 confirmed to the Court that the deceased was unwell and was in a wheelchair pushed by one Samuel Opoku Agyemang when he was brought to the law firm. Indeed, PW2 gave the answers below in his evidence - in - chief: Q: Can you continue from there? A: When John Nii Armah finished inserting the new list in the will, he told Samuel Opoku Agyemang to bring the old man to his office to come and sign the will. Samuel Opoku Agyemang went but came back to tell us he could not lift the old man to bring him to our office; so I should come and help him. I therefore helped Samuel Opoku Agyemang to being the old man; and John Nii Armah told the old man to come and thumb print. It was difficult to get the old man to sign because his hand was shaking and he could not even hold the pen. It was therefore John Nii Armah who held the old man’s hand to make a sign on the will; and he also hold the old man’s hand to thumb print. JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 29 All this while, Samuel Opoku Agyemang was standing in the office, looking on. [35] The law is clear on the fact that a testator can be assisted to sign or make his mark or someone else can make a mark for the testator in the presence of the testator; and so PW1 assisting the deceased to make his mark or sign ought not to be a basis for the lack of testamentary capacity, if only the testator understood the contents of the said will. This was the holding of the Court in the case of BAKSMATY v. BAKSMATY [1964] GLR 56-64, per Prempeh J. who held as follows: (5) If a testator who is unable from illness to sign his will has his hand guided in making his mark, it is sufficient signature within the Statute of Frauds. In the English case of Wilson v. Beddard (1841) 12 Sim. 28; 59 E. R. 1041, it was held that If a testator, who is unable from illness to sign his will, has his hand guided in making his mark, it is sufficient signature within the Statute of Frauds. In this case, since the testator was a blind man it is my view that it was perfectly in order for the defendant to have guided his hand to the position on the will where he had to sign it, and that the testator’s signature on the will was properly made. JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 30 Further, In re Sackitey (Dec); Dzamioja alias Ashong v Sackitey [1982-83] GLR 1196, per Asare – Kwapong J, it was also held: “The law allowed a testator who was weak to be assisted to hold a pen to sign his will; there was nothing legally wrong with a person being assisted in signing his name if his fingers were neither strong nor mobile enough to hold and manipulate a pen, provided he accepted it as his signature …” [36] Nonetheless, PW2 further answered: Q: Where was your boss when all this was going on? A: Our boss was in the office. When Nii Armah was done, the said Samuel Opoku Agyemang said he was taking the old man home. Samuel Opoku Agyemang told Nii Armah that after depositing the will at the Court, Nii Armah can take the old man’s copy home, and Samuel Opoku Agyemang will come for it. When the testator came therefore, no one read over and explained the will to him because he could not neither see nor hear. Even when we spoke, the old man did not hear. Q: What about your boss, did he read over and explain to the testator? A: No, my Lord. It is usually John Nii Armah who reads over wills to testators; but John Nii Armah did not read over and/or explain the will to the testator because he could not even hear anything. After JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 31 that, I helped Samuel Opoku Agyemang to put the old man back in the wheelchair and they left. From the above, I find both the testimonies of PW1 and 2 reasonably probable, that the deceased was unwell, both in body and mind; at the time he went to J. J. Peele & Associate Law firm to purportedly have his will amended; and neither could he see. [37] Indeed, the evidence adduced by the Plaintiffs and especially from the testimonies of both PW1 and 2 confirm to the Court that PW1 never took instructions directly from the deceased as to the amendments or changes that had to be undertaken in his will. Both PW1 and 2 were express in their assertions that it was the grandson of the deceased, Samuel Opoku Agyemang, who brought PW1 some instructions on a piece of paper and those were incorporated in an already existing draft found on the firm’s computer. The Defendant and his Counsel did not materially discredit or contradict the Plaintiffs’ witnesses with respect to that piece of information, and I again find that that indeed may have been exactly what happened, especially when the said Samuel Opoku Agyemang was never brought to testify, even though he was always in Court, representing or accompanying the Defendant herein. [38] From the evidence before this Court, I find that the deceased did not give direct and/or express instructions to PW1 to have his will changed. I also find that the deceased was not present with PW1 and the said Samuel Opoku Agyemang at the time the piece of paper containing the said changes was given to PW1 by Samuel Opoku Agyemang; and it is again a fact that the deceased was only brought to PW1 after the said changes had been said to have been effected, only to append his signature and thumbprint. JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 32 The above, I hold were surely the reasons why the new contents of the said will had to be read over and explained to the deceased, to be sure he understood the contents and the changes made before he appended his signature and his mark; but that was unfortunately not done. [39] The Defendant, I find, did not adduce any evidence whatsoever to establish that the sequence of events that took place and as narrated by PW1 and 2 was not indeed what took place. No witness was produced to contradict the testimonies of these two law clerks, and in my candid opinion, I also find that no questions were posed to these witnesses to discredit their testimonies in open Court. I further rely on the fact that there was a jurat on the face of the Will, and so the presumption is that the contents had been read over and explained to the deceased testator, but once again, it is evident from the testimonies of the parties that that was not done. From the evidence adduced, the deceased was clearly old and ill, he could not see and PW2 stated he was hard of hearing. No evidence whatsoever was adduced by the Defendant to contradict the above. It therefore behoved on whoever intended to make changes to the will to ensure that he had read over and explained the said changes to the deceased in a manner that the deceased understood; but the incomplete jurat on the face of the said will sufficiently demonstrated that there was non-compliance with statute. [40] Section 4 of the Illiterates Protection Ordinance, CAP 262 provides for when the need for jurat making arises, as follows: JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 33 1. That the writer should clearly and correctly read over and explain the letter or document or cause same to be read over and explained to the illiterate person. 2. Cause the illiterate person to write his signature or make his mark at the foot of the letter or other document or to touch the pen with which the mark is made at the foot of the letter or other document. … I would like to state that the above, applies, mutatis mutandis to blind persons as well. Indeed, section 2(6) of Act 360 is the provision to be relied upon, and which provides: Where the testator is blind or illiterate, a competent person shall carefully read over and explain to him the contents of the will before it is executed, and shall declare in writing upon the will that he had so read over and explained its contents to the testator and that the testator appeared perfectly to understand it before it was executed In the case of Re Kodie stool; Adowaa vs. Osei [1998 - 99] SCGLR 23, the Supreme Court stated that without strict fulfilment of the above stated section, any document allegedly executed by an illiterate person, had no probative value and was to all intents and purposes invalid. JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 34 There are also authorities such as Duodu Amoo & Anor vrs Bernard Nimako Akowuah & Anor (Civil Appeal No. J4/36/2011) dated 13th January 2012; Zabrama vrs Segbedzi [1991] 2 GLR 221 and Boakyem vrs Ansah [1963] 2 GLR 223; and in all these cases, it has been held that evidence must be led to prove that the document was read and interpreted to the illiterate or blind testator in the language he understands before he made his mark or thumbprint. The onus is always on the party who wants to bind the illiterate/blind testator to the document. [41] On a balance of probabilities and from the above, I am satisfied that the will said to have been executed by the deceased is substantially invalid because the contents thereof were never read over and explained to the deceased to ensure that he understood same, there being adequate evidence to establish that the deceased was not completely of sound mind and mentally capable of understanding some changes brought by someone else that had been made to his existing will. The deceased may or may not have had the mental capacity to make the will, but the contents were clearly not read over and explained to the deceased, rendering the said document not in conformity with statute and the law. I proceed to deal with the next legal issue: 2. ISSUE THREE (3) JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 35 - Whether or not the late John Ernest Obeng a.k.a Yaw Obeng gifted out any or some of the properties devised in the purported Will during his lifetime and therefore could not devise same in his purported Will. [42] It is trite that a will is ambulatory and it can be revoked and/or changed at any time by the testator. There is also the principle of ademption in law. Ademption occurs when property devised in a will is no longer in the testator’s estate because it may have been sold, destroyed or given out as a gift during the lifetime of the testator. If a devise is adeemed therefore, it means that that property is no longer available to the beneficiary named in the will. Nonetheless, adeemed devises, properties and gifts do not mean the testator had no testamentary capacity to make a will. In the case of SESE v. SESE AND OTHERS [1984-86] 2 GLR 166-175, the Court of Appeal, per Abban JA (as he then was) held: Thus, the mere recording of the gift in writing could not affect its customary nature. It still remained a customary gift and it continued to be subject to the incidents of customary law. Some of such incidents being that every gift when completed was irrevocable except in gifts between parent and child, which could be recalled or exchanged at any time by the parent in his or her lifetime, or by his will or dying declaration. In the circumstance, the so-called gift, even if it was valid, could still be revoked by the plaintiff's late father by adopting one of the means stated above. JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 36 [43] Both the 5th and 7th Plaintiffs testified to persons to whom the deceased had made gifts; but the 5th Plaintiff again confirmed that she personally had to pay rent for the store she was in for instance, to the testator. Under cross-examination, this is what the 5th Plaintiff had to say: Q: You occupy a store at store no. OTB 565, Adum – Kumasi, not so? A: Yes, my Lord. Q: And you paid rent to your father for the occupation of the said store? A: Yes, my Lord. Q: So you were just like any other tenant in occupation? A: Yes, my Lord. My father gave the store to me, but he took rent from me because he was not working. He thus stated that after he dies; we will be the full owners of the store. The 5th Plaintiff gave the answers below whilst still under cross-examination: Q: At paragraph 11 of your witness statement you stated your father gifted H/No: OTB 565 Adum to you. Where was the alleged gift made? A: Right there at Adum, my Lord. At the time, my father was living at Adum. JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 37 Q: So your father made the alleged gift to you and your siblings in the said property? A: Yes, My Lord. Q: After the alleged gift, you continued to pay rent to your father in respect of the stores in OTB 565, Adum? A: Yes, my Lord; because he told us that the property will only become ours after his death, my Lord. Q: And so when your father was alive; the properties belonged solely to him alone? A: Yes, my Lord. [44] The deceased therefore clearly treated the properties as his, even though the 5th Plaintiff sought to state a gift of those properties had been made to them. He thus had the right to devise them in his will to whomsoever he wished, as he still treated the properties as his. Again, none of the Plaintiffs adduced any evidence whatsoever to establish the ‘aseda’ said to have been given by the donees. [45] This aspect of the case appears to be similar to the case of Okoe v Okai [1997 – 1998] 2 GLR 980, where an aunt who stood in loco parentis to two blood sisters devised her house to the sisters in her will. After probate of the will had been granted and vesting assent was made in favour of the two of them, the Plaintiff JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 38 was said to have discovered a deed of gift in her favour. The Plaintiff thus instituted an action against her sister, contending that by virtue of the priori deed of gift in her favour, the aunt could not in law make a devise of the very same property and accordingly contended that the said devise declared in the will … is ineffectual to vest the property in them. On appeal, it was held: Moreover, between the execution of the deed of gift in 1962 and her death, as the evidence reveals, the donor continued in complete control of the premises as though the house had not been gifted at all. I hold that the evidence as a whole did not support any valid gift to the plaintiff. Even if the so-called gift was valid, it is my judgment that it was revoked by the plaintiff’s late aunt … when she executed the will in 1968. This is so because as it was laid down in Sarbah’s Fanti Customary Laws (supra) and which was approved in the Court of Appeal’s case of Sese v Sese (supra) at 174 that: “Every gift when completed is irrevocable, except in gifts between parent and child, which can be recalled or exchanged at any time by the parent in his or her lifetime, by his will or dying declaration.” The plaintiff’s “mother” revoked the supposed gift and in my opinion she effectively did so in her will dated 18 October 1968 and admitted to probate by the High Court, Accra on 15 March 1977. JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 39 The so-called gifts could be revoked by the testator during his lifetime; and I hold that the deceased, John Ernest Obeng could have rightly included the properties in his will, if he indeed did make one. [46] This Court has however found that the said will, tendered in evidence by both the Plaintiffs and the Defendant is invalid for the failure in completing the portion of the jurat intending to read over and explain the contents of the purported will to the deceased; and so this Court cannot give effect to the will said to have been made by the deceased. I proceed to deal with the following issues: 3. ISSUES TWO (2), FOUR (4) AND FIVE (5) - Whether or not the execution of the purported Will of the late John Ernest Obeng a. k. a Yaw Obeng was obtained by undue influence and fraud. - Whether or not the Plaintiffs are entitled to their reliefs. - Any other issue(s) raised by the pleadings. [47] The particulars of fraud set out by the Plaintiffs was as follows: a. That the Defendant and one Samuel Opoku Agyeman without the consent and authority of the deceased (John Ernest Obeng a.k.a Yaw Obeng) procured his signature and thumbprint in the aforesaid Will, alleging same to be the signature and thumbprint of the deceased. JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 40 From the entirety of the trial, I find that the Plaintiffs were unable to establish any acts of fraud or omissions on the part of the Defendant and which could have resulted in the Defendant fraudulently obtaining the signature or mark of the deceased on the document said to have been the will of John Ernest Obeng. There was also no evidence to establish that the deceased was unduly influenced by the Defendant herein, who fraudulently obtained the said will in contention. Perhaps by the said Samuel Opoku Agyemang, as submitted by the Plaintiffs’ Counsel, because he has been proven to be the one who brought the piece of paper to the law clerk with the amendments; and it was he who informed PW1 to make the said changes; but the said Samuel Opoku Agyemang was unfortunately never brought before this Court. It therefore became evident during the trial that Samuel Opoku Agyemang was the one who took the testator to the offices of J. J. Peele and Associates on the day in question and sought to have the deceased’s will amended in his favour, it appears. [48] Again, the evidence points to the fact that the deceased had previously gone to the offices of J. J. Peele and Associates to make his will; but that will was allegedly recalled from the Registry of the High Court where it had been deposited and a new one made in its stead. Who recalled the previous will and who had that previous will, no one was able to tell. This Court however finds that this amended will in contention is invalid because there was sufficient evidence to establish that it was the said Samuel Opoku Agyemang who took JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 41 a piece of paper on which were written some instructions to PW1 to insert into an already drafted will, and not the deceased himself. The evidence is also substantial to establish that these changes to the will were made at the time the deceased was not present; and that it was after the changes had been made that the deceased was brought in to make his mark and/or append his signature. PW1 further confirmed to the Court that the deceased was ailing and weak and could not make his mark on his own, so PW1 guided the deceased’s hand in the making of his mark. [49] Finally, a jurat was inserted at the end of the document, but both PW1 and 2 confirmed to the Court that they inadvertently failed to read over and explain the contents of the will to the deceased, to make sure the deceased understood the contents thereof before making his mark. The jurat was thus not completed and I found that invalidated the document that was said to be the last will and testament of the deceased because the totality of the evidence adduced before this Court established that the deceased was not the one who brought the paper for the changes to his will to be made, but the contents of the changes in the will were never read over and explained to the ailing deceased in the language or dialect he understood, and he appreciated what had been read to him before making his mark. Since the evidence adduced by the Plaintiffs’ witnesses established that the deceased at JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 42 the time was old, sick and did not appear to be compos mentis, that exercise had to be taken as a matter of law and the changes read over and explained in the language or dialect he understood to ensure the deceased understood whatever changes had been made. [50] I again find that none of the clerks in the law offices of J. J. Peele and Associates took pains to confirm from the deceased whether or not he made those subsequent instructions; and that is why the process of reading over and explaining the contents of the amended will to the deceased after those insertions and amendments were made ought to have been strictly complied with. It is obvious that Samuel Opoku Agyemang sought to benefit from the vast and wealthy estate of the deceased and went to a lot of trouble to get the will of the deceased altered, but there is no evidence to establish a nexus between the actions of the said Samuel Opoku Agyemang and the Defendant herein, save that the Defendant was said to have been named as the Executor of the so-called will of the deceased. [51] I therefore find insufficient evidence to establish fraud on the part of the Defendant herein, but sufficient evidence was adduced to establish that the said Samuel Opoku Agyemang sought to benefit from the estate of the deceased and that has resulted in this whole suit before the Court. I rely on the case of Saviour Church of Ghana vrs Abraham Kwaku Adusei & 4 Ors [2020] 157 GMJ 38, where the Court held that “… In a case of fraud, it is the duty of the person alleging same to produce evidence beyond reasonable doubt in order to sustain the claim. JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 43 And although arising out of civil matter, fraud is by nature criminal and vitiates everything. ...” XIII. CONCLUSION [51] In the case of Akua Marfoa vrs Margaret Akosua Agyeiwaa (supra) Yaw Appau JSC held as follows: There is no doubt that each and every one has the unchallenged right to distribute his/her self-acquired property the way he/she wants subject to the provisions of … Act 360 and … the 1992 Constitution. … The duty of the Court is to construe the testator’s will in accordance with the established rules of construction and not to make a new will for him. Also, in the case of In Re Arthur (Deceased) Abakah and Another v. Attah- Hagan and Another [1972] 1 GLR 435 Archer JA (as he then was) said: “What should be borne in mind is that whenever a will is granted, the Court is not giving its blessing and support to all the contents of the will. The Court is only expressing its satisfaction that the will has been validly executed and that the named executors are at liberty to administer the estate. …” [52] I also rely on the IN RE ESSIEN ALIAS BAIDOO (DECD.) case (supra) where the Court of Appeal again held that The court is enjoined to decide the case in accordance with the provisions of Act 360, even though its decision would have the effect of defeating the purpose or the intentions of the testator. The courts JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 44 always have a strong inclination to carry into effect clear intentions of deceased persons. But where the intentions are contained in an instrument, purporting to be a will whose execution did not comply with the provisions of the law, there is very little that can be done, but to pronounce against it, the extent of bequests and the number of the beneficiaries notwithstanding. [53] Considering the case law cited above and the evidence adduced before this Court, on a balance of probabilities, I am not entirely satisfied that the document purporting to be the last will and testament of the deceased is valid as on the face of same, the jurat was not signed and executed. The evidence led confirms the document was not read over and explained to the deceased to enable him appreciate the changes made before he was assisted to make his mark; and the presumption that arises in the mind of this Court is that the deceased was not made to understand and appreciate the changes he was purported to have made in his so-called will; especially where there is substantial proof to establish that the deceased could not see, was hard of hearing and was generally weak and ailing. [54] No evidence whatsoever was led by the Defendant, the Executor of the will to rebut the presumptions that in spite of the jurat not being completed and executed, (or the lack of the jurat) the deceased understood and appreciated the contents of that document mainly because the Defendant himself was not present and he could personally not speak to the validity of the said document. No witness was also produced by the Defendant to seek to establish the validity JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 45 of that document and so I hold that the document which the Defendant portends to be the will of the deceased is invalid and the estate of the deceased, John Ernest Obeng falls into intestacy. [55] For the above reasons and considering the reliefs sought by the Plaintiffs herein, I do hereby enter judgment in part for the Plaintiffs herein and do hereby declare as follows: 1. That the document referred to as the last will and testament of the late John Ernest Obeng aka Yaw Obeng is invalid since its execution was not in compliance with the Will’s Act, 1971, Act 360. I further declare that the estate of the deceased, John Ernest Obeng falls into intestacy and shall therefore be distributed in accordance with the Intestate Succession Act, 1985, PNDCL 111. Consequently, the probate granted to the Defendant herein be and is hereby revoked. 2. The late John Ernest Obeng may or may not have had the testamentary capacity to execute the document said to be his will on the 14th of June 2013, but I find that that document was not validly executed and ought not to be held out as the last will and testament of the late John Ernest Obeng, aka Yaw Obeng; and so the document held out as the last will and testament of the late John Ernest Obeng be and is hereby cancelled. 3. The reliefs (b) and (c) of the Plaintiffs below: JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 46 (b) A further declaration that the purported signature and or thumbprint on the said Will was not made by the late John Ernest Obeng a.k.a Yaw Obeng. (c) A declaration that, the late John Ernest Obeng a.k.a Yaw Obeng during his lifetime gifted some of the properties in the said Will to other people and as such had no capacity to devise same in the said Will. Both fail on account of the findings of this Court above and as supported by the case law also cited above. [56] Finally, since the estate of the deceased falls into intestacy, the Plaintiffs and the family of the deceased are hereby ordered to take steps to nominate persons who are capable of applying for and obtaining letters of administration in respect of the estate of the deceased, in order to distribute the estate in accordance with PNDCL 111. JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 47 This matter has been pending before this Court since 2017. Further, the Defendant was sued in his capacity as an Executor of the deceased’s will but since the will fails as being invalid and considering the entire circumstances, I shall award nominal costs of Gh¢10,000.00 in favour of the Plaintiffs herein, especially when they are going to benefit from the estate of the deceased as children and beneficiaries of the deceased. SGD. JUSTICE PATRICIA QUANSAH HIGH COURT 6, GENERAL JURISDICTION KUMASI ASHANTI REGION. 10TH NOVEMBER 2023. COUNSEL: JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 48 CONFIDENCE LOKKO WITH PRISCILLA KONADU ANTWI PRESENT, HOLDING SAEED KOFI SAM’S BRIEF FOR THE PLAINTIFFS. ADWOA SERWAA ASAMOAH PRESENT, HOLDING KOFI BOYE ATENG’S BRIEF FOR THE DEFENDANT. JUDGMENT - KWASI OBENG POKU & 10 ORS vrs OSEI OWUSU SEKYERE 49