In the matter of the Estate of Heb (Hess) (Deceased) (PA/0816/2023) [2023] GHAHC 384 (3 November 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE PROBATE AND ADMINISTRATION DIVISION I HELD IN ACCRA ON 3RD DAY OF NOVEMBER, 2023 BEFORE HER LADYSHIP EUDORA CHRISTINA DADSON,

JUSTICE OF THE HIGH COURT ---------------------------------------------------------------------------------------------------------------- SUIT NO. PA/0816/2023 IN THE MATTER OF THE ESTATE OF BERNHARD RUDOLF HEB (HESS) (DECEASED) AND

IN THE MATTER OF AN APPLICATION FOR GRANT OF LETTERS OF ADMINISTRATION BY RUDOLF HEB AND BRIGITTE KALBACHER-HEB (BOTH ACTING THROUGH THEIR LAWFUL ATTORNEY MRS. ANNIE EMEFA FIAWOO)

AND

IN THE MATTER OF AN APPLICATION FOR REMOVAL OF CAVEAT ---------------------------------------------------------------------------------------------------------------- PARTIES: APPLICANT LAWFUL ATTORNEY ABSENT

CAVEATRIX PRESENT COUNSEL: NATHAN YARNEY WITH DEILA ASSIMEH FOR THE APPLICANTS PRESENT

SYDNEY ANTONIO HOLDING BRIEF FOR EVANS ANABAH FOR

THE CAVEATRIX PRESENT ============================================================================

RULING ============================================================================ [1] Introduction A caveat is a document filed in court to prohibit the grant or representation i.e., probate or letters of administration unless prior notice is given to the caveator. In the case of letters of administration, the caveator is saying that the applicant is not the person who is by law entitled to the grant. A caveat once filed shall remain in force for three months from the date on which it is filed but may be renewed from time to time1. The learned authors of the book, Williams and Mortimer on Executors, Administrators and Probate, at page 275 writing on caveats stated as follows: “A caveat is a notice in writing that no grant is to be sealed in the estate of the deceased named, without notice to the caveator. No grant can be sealed if the registry is aware of the caveat, but it will not prevent the sealing of a grant on the day the caveat is entered. The main object of a caveat is to enable a person who is considering opposing a grant to obtain evidence or legal advice in the matter. The effect of a caveat is that no grant can issue after its entry until it is removed or ceases to have effect2.” 1 Adu-Gyamfi Derick, Handbook on Probate & Administration Practice in Ghana (with Precedents) 2 (J. H. G. Sunnucks, 1970) SUIT NO:PA/0816/2023 – IN THE MATTER OF THE ESTATE OF BERNHARD

RUDOLF HEB (HESS) - RULING The learned authors of the book, Tristam and Coote’s Probate Practice, 23rd Edition, at page 523 writing on caveats stated as follows: “ A caveat is a notice in writing lodged in the principal probate registry, or in a district probate registry, that no grant is to be sealed in the estate of the deceased named therein without notice to the person who has entered the caveat. No grant can be sealed if the registrar has knowledge of an effective caveat, but a caveat is not effective to prevent the sealing of a grant on the day on which it is entered…The proceedings subsequent to the entry of caveat i.e. the warning or notice to appear, issued against the caveator by the party whose application for a grant has been stopped, and the appearance to such warning by the caveator will disclose the names and addresses of the parties and their respective interests in the estate of the deceased, and with this information it is open to either of them, if the interests conflict, to commence an action against the other for the purpose of establishing his own claim…A caveat is not a notice to a particular person; it is a notice to the court not to allow proceedings to be taken in the matter of the will or estate of the deceased without notice to the caveator. It does not commence litigation, it institutes no proceedings.” The person filing the caveat may be warned in

the form contained in the schedule issued by the Registry at the instance of the applicant or by any person interested, stating the nature of his interest and shall require the caveator to file an affidavit giving particulars of any contrary interest which the caveator may have in the estate of the deceased. In the words of Lopes, L. J in Salter v Salter (1896) P, 291, C. A. “A caveat is merely notice to the registrar to do nothing without notice to the solicitor who entered it. The effect of the warning is that the caveat becomes void unless the person who entered it appears within time. If the person warned appears within the time limited, the caveat proceedings are an end. If after this a writ is issued, lis pendes commences, but not till then” The Court will then give directions to the registrar to bring the caveat to the notice of the applicant and his lawyer as in form 25 and not to take any further steps until the applicant has duly warned the caveator2. Letters of administration should not be granted until caveat is removed. In the case of Re Hervie (Decd) Addo v Boye [1989-90] 1 GLR 174 per Abakah J: “Even though the respondents had disclaimed any knowledge of the caveat, for purposes of the effect of a caveat, it was the filed thereof which was pertinent. When the caveat was filed, the court should have, on account of Order 60, r.15 of the High Court (Civil Procedure)

Rules, 1954 (L. N. 140A), declined to take any steps until the applicant had duly warned the caveator, i.e. after the court had directed the registrar to notify the applicant. And the court should not have issued a grant until the caveat was removed. Since the caveat in the instant case had not been removed, it was fundamentally irregular for the respondents to have been granted letters of administration by the High Court, Koforidua in respect of the estate of H. Although the grant to the respondents could not be said to have been obtained by fraud, it was vitiated by the irregularity characterising it and must therefore be revoked”. In the case of Agyepong (Decd.); Poku v. Abosi [1982-83] G. L. R. 254, Court of Appeal posited as follows: 2 Order 66 r 11(5) of C. I 47 SUIT NO:PA/0816/2023 – IN THE MATTER OF THE ESTATE OF BERNHARD RUDOLF HEB (HESS) - RULING “The purpose of a caveat is to allow the caveator time to make inquiries and decide whether or not to oppose the application. A caveat is notice to the court that no grant should issue without notice to the caveator. Anyone having an interest in the estate may enter a caveat and the court will not issue a grant until the caveat is removed. The person applying for a grant of letters of administration must issue a warning to the caveators and disclose his interest in the estate. A caveator may decide to withdraw his caveat or

enter an appearance - stating in his affidavit his claim if he has one or oppose the applicant on the ground of lack of interest or that he has superior right to letters of administration or that the applicant was not entitled to such a grant”. A caveat has the effect of staying the grant of probate or administration until the caveat is expired, or until it is warned, and the person warned fails to appear; or, in case of appearance, until the contest is terminated. If by inadvertence such grant should be made, it would be recalled or revoked. [2] Brief Facts The Applicants filed an application for grant of Letters of Administration per their lawful attorney on 6th June 2023. On 4th July 2023 Cindy Amahada filed a caveat. On 10th July 2023 notice of filing caveat was issued. On 5th July 2023 a warning to caveator was filed and served on Caveatrix on 6th July 2023 and on 13th July 2023 the Caveatrix filed her affidavit of interest. [3] Affidavit of interest of Caveatrix The Caveatrix main contention in her affidavit of interest was that she is the lawful wife of the deceased having been married customarily to the deceased at her family house at Pokuase. According to the Caveatrix prior to and after marrying her husband she resided at her matrimonial home (House No C8/071, Community 8, Lakeside Estate) which is the sole property sought to be administered by the application

herein. According to Caveatrix in terms of the order of priority she has priority by law to apply for letters of administration. The Caveatrix filed a supplementary affidavit of interest on 27th October 2023. The Caveatrix stated that “that I was married traditionally to the deceased Bernhard Rudolf Hess on the 14th July 2022 at my family house in Pokuase. Further that because my deceased husband’s family were in Germany and could not attend the marriage ceremony, he asked his lawyer, Mr. Godfred Balamy to accompany him and represent his family at the ceremony…”. According to the Caveatrix plans were afoot for an ordinance marriage and the deceased asked her to stop working and be a stay-at-home wife and further that the deceased recanted his allegations of infidelity on the Caveatrix’s part and apologized. According to the Caveatrix she has a beneficial interest in the estate of the deceased husband and has a priority in law for the application of letters of administration to administer his estate. The Caveatrix refers to Exhibit CA series. SUIT NO:PA/0816/2023 – IN THE MATTER OF THE ESTATE OF BERNHARD RUDOLF HEB (HESS) - RULING [4] Motion on Notice for Removal of Caveat The Applicants filed an application for the removal of caveat filed by the Caveatrix and dated 4th July 2023 and to proceed to determine the Application for the grant of Letters of Administration. The

Applicants lawful attorney deposed that the entire affidavit of interest does not disclose any interest in the Caveatrix as the facts she alleges as founding her interest is false. According to the Applicants, from previous proceedings with their son in his lifetime, he explained his circumstances with the Caveatrix as an intention on his part to marry her. Even when he visited Germany with the Caveatrix he maintained he was planning to marry her and never passed her of as his wife. The Applicant’s lawful attorney reiterates the position of the Applicants that the Caveatrix is not the lawful wife of the deceased and refers to the deceased suspicions of infidelity on the part of the Caveatrix. Paragraphs 7, 8, 9, 10, 11 and 13 are further depositions on the Applicant’s position of the Caveatrix not being a surviving spouse of the deceased and further Exhibits in support of their position. The Applicants through their lawful attorney filed an affidavit in response to Caveatrix’s affidavit of interest on 13th October 2023. The Applicants’ lawful attorney contends that the entire affidavit of interest does not disclose any interest as the facts alleged by the Caveatrix is false. The Applicants’ lawful attorney states that that the deceased sent the same images relied on by the Caveatrix to the Applicants and explained that they were taken on the day he was formally introduced to

the family of the Caveatrix as a suitor with intentions to marry her. The Applicants rely on exhibits AEF1, AEF2, AEF 3, AEF 4, AEF 5 and AEF 6 in support of their case. The Applicants assert therefore that they are unable to accept the Caveatrix’s claims to have been their late son’s wife and thus at present his widow. The Applicants therefore contend that the claims by the Caveatrix be rejected accordingly. [5.1] Order 66 Rule 11 of High Court (Civil Procedure) Rules, 2004, CI 47 provides as follows: “11. Caveat (1) Any person who has or claims to have an interest in the estate of a deceased and who wishes to ensure that no grant of probate or letters of administration is issued without notice to the person, may file a caveat as in Form 24 specified in the Schedule. The caveat may be filed either before or after an application has been made for probate or letters of administration, (2) but before grant. A caveat filed before an application for probate or letters of administration shall be brought to the notice of the Court (3) by the Registrar as soon as the application is filed. A caveat filed after an application for probate or letters of administration shall be brought immediately to the notice (4) of the Court by the Registrar. SUIT NO:PA/0816/2023 – IN THE MATTER OF THE ESTATE OF BERNHARD RUDOLF HEB (HESS) - RULING (5) On being given notice of a caveat, the Court shall

direct the Registrar to bring it to the notice of the applicant or the lawyer of the applicant as in Form 25 in the Schedule and shall decline to take any further steps until the applicant duly warns the caveator. A caveat shall remain in force for three months from the date on which it is filed, but may be renewed from time to (6) time. (7) The Registrar shall not allow any grant of probate or letters of administration to be sealed if the Registrar has knowledge of an effective caveat in respect of it, except that no caveat shall operate to prevent the sealing of a grant on the day on which the caveat is filed or on which a copy of it is received. (8) A person who files a caveat shall be warned as in Form 26 in the Schedule, issued by the Registrar at the instance of the applicant or by any person interested, to file an affidavit, stating the nature and particulars of any interest that person may have in the estate of the deceased. (9) If the warning is not duly obeyed, the applicant shall move the Court in respect of the applicant’s original motion for the grant of probate or letters of administration and where the Court considers it fit it shall direct that notice be served on the caveator. (10) If the warning is obeyed, a copy of the affidavit filed shall be served on the applicant by the Registrar. (11) The applicant shall then move the Court to grant probate or letters of

administration on notice to the caveator who shall at the expense of the applicant, be served with copies of any affidavits on which the applicant intends to rely. (12) When the motion comes on for hearing, if the parties agree among themselves as to the person to whom a grant of probate or letters of administration shall be made, the Court may order that the caveat be removed from the file and a grant be made to that person. (13) Failing such agreement between the parties the Court shall determine who is entitled to a grant of probate or letters of administration summarily or may order that the applicant issue a writ against the caveator within fourteen days from the date of the order, to determine who is entitled to grant of probate or letters of administration, if in the opinion of the Court it is necessary to do so”.(emphasis mine) [6] Or 66 rule 11(12) of CI 47 states firmly the considerations that the court should entertain during caveat proceedings, i.e., who is entitled to the grant. The Court has observed that the Applicants have raised issues about capacity of the Caveatrix as surviving spouse of the deceased. Order 66 rule 11 (12) and (13) of CI 47 provides as follows: (12) When the motion comes on for hearing, if the parties agree among themselves as to the person to whom a grant of probate or letters of administration shall be made, the Court may order that the

caveat be removed from the file and a grant be made to that person. (13) Failing such agreement between the parties the Court shall determine who is entitled to a grant of probate or letters of administration summarily or may order that the applicant issue a writ against the caveator within fourteen days from the date of the order, to determine who is entitled to grant of probate or letters of administration, if in the opinion of the Court it is necessary to do so”. Clearly with issues of capacity of the Caveatrix raised and the contending view by the Applicants that the Caveatrix is not a spouse of the deceased is therefore not entitled to the grant of letters of administration in respect of the estate of the deceased, the parties have failed to agree amongst themselves as to who is entitled to the grant of Letters of Administration in respect of the Estate of the deceased. It is the considered view of the SUIT NO:PA/0816/2023 – IN THE MATTER OF THE ESTATE OF BERNHARD RUDOLF HEB (HESS) - RULING Court that it is necessary to determine who is entitled to the grant of Letters of Administration in respect of the Estate of the deceased. [6.1] Conclusion For the above reasons, the application filed on 19th October 2023 for the removal of caveat is refused and accordingly dismissed and in accordance with Order 66 rule 13 of CI 47 and I make the following Order: The Applicants shall issue a writ for a determination of who is entitled to the grant of letters of administration in respect of the estate of the deceased within 14 days from the date of this order. No order as to costs. (SGD.) H/L EUDORA CHRISTINA DADSON(MRS) (JUSTICE OF THE HIGH COURT) SUIT NO:PA/0816/2023 – IN THE MATTER OF THE ESTATE OF BERNHARD RUDOLF HEB (HESS) - RULING