i. Introduction:

[1] The good old book, the Holy Bible in Psalm 133 describes brethren living in harmony as wonderful and pleasant, for harmony is as precious as the fragrant anointing oil that was poured over Aaron’s head that ran down his beard and onto the border of his robe/garment. (Reference: Life Application Study Bible). The estate of an aunt who had no natural child of her own is the centerpiece of this litigation. Based on the life worth of the deceased as presented to the Court and taking into consideration her life worth and accomplishments, in the opinion of the Court her life ought to have been celebrated rather than her passing being litigated by first cousins who are the main parties in this suit.

[2] This suit is brought by the Plaintiff, Rev. Paul Akrofie, a Reverend Minister of the Gospel as a result of an alleged fraudulent making of a Last Will and Testament of the late Major Alice Ama Oye Akrofie (deceased) by the Defendants Mrs. Kate Serwah Jonah, a Contract Cleaner by occupation and a niece of the deceased and Mrs. Emma Dogor, a Missionary and also a sister of the deceased.

ii. The Action

[3] On October 19, 2015, the Plaintiff herein caused his lawyer to issue a writ of summons claiming against the Defendants herein the following judicial reliefs:-

(a) The purported Will of the Late Major Alice Oye Akrofie dated the 30^th day of May 2008 be declared as invalid and of no legal effect.

(b) AN order to cancel the said Will.

(c) The Defendants be mulcted in damages.

(d) Costs

[4] The Plaintiff pleaded in his statement of Claim that after the demise of the deceased he discovered that a Will was fraudulently made at the instance of the 1st Defendant. He pleaded and provided particulars of the fraud from paragraph 8 as follows:

8. The Plaintiff discovered that the 1^st Defendant had caused a Will to be made but NOT at the direction or with the authority of Major Alice Oye Akrofie.

9. After the reading of the purported Will on 10^th September 2015, the Plaintiff also discovered that the signature on purported Will is different from the usual signature of the Late Major Alice Oye Akrofie.

10. The Plaintiff will contend at the trial that the Will dated the 30^th May 2008 is NOT the act of the Late Major Alice Oye Akrofie who at the time was suffering from severe dementia and had no capability to formulate and draw up and sign the said Will at the time the 1^st Defendant was signing cheques to draw monies to support the said Major Alice Oye Akrofie.

11. The Plaintiff will contend at the trial that the 1^st Defendant had fraudulently composed and crafted the contents of the purported Will and forged the signature of the Late Major Alice Oye Akrofie.

Particulars of Fraud and Forgery

(a) 1^st Defendant knowing Major Alice Oye Akrofie was suffering from severe dementia and incapable of signing her usual signature, in collusion with the 2^nd Defendant and with audacious impunity, caused the contents of the Will dated 30^th May 2008 to be made.

(b) The signature, though forged, was still not made in the simultaneous presence of the two

(2) witnesses.

(c) It was the 1^st Defendant who forged the signature of the Late Major Alice Oye Akrofie on the said Will.

(d) The 1^st Defendant, after preparing and drawing up the said Will to benefit herself and the 2^nd Defendant, personally procured the signature of two (2) witnesses for the said Will.

iii. The Defence & Issues:

[5] The claim of the Plaintiff was met with a joint statement of defence by the Defendants in which the Plaintiff’s claim was vehemently denied. The Defendants pleaded in their defence at paragraph 20 in particular that the Will was drafted by one Joyce Kafui Ayer, a Barrister and Solicitor presently based in the United States of America on the instructions of the deceased and same was “duly executed by the Deceased testatrix in the presence of two witnesses namely Mrs. Juliana Kwatchey Johnson and Cynthia Odei”.

[6] The Defendants further contended that at the time the Deceased executed the WILL, she was not suffering from dementia and she appreciated and understood her actions. They also averred that there was no fraudulent dealing or forgery as Plaintiff asserts. In particular at paragraph 29 of the statement of defence the Defendants stated that “the Will of the Deceased does not benefit, and the Deceased did not bequeath or devised any property or asset to, the 2nd Defendant. She was only named as one of the executors of the Will. The Deceased rather devised properties to other persons including both the Plaintiff and the 1st Defendant”.

[7] The Defendants further pleaded by denying that in 2008 the Deceased had dementia although they did admit that the Deceased at the time of her death in 2015 was suffering from dementia. According to the Defendants the Deceased was only diagnosed to be suffering from dementia some time in 2011. The Defendants therefore contended that the Will was validly made and executed in the year 2008.

[8] The Plaintiff filed a reply to the Defence together with an Application for Directions on December 23, 2015. The reply was later amended pursuant to the Court’s Leave on March 24, 2016. After the close of pleadings, the following issues were set down for hearing and determination of the court:

i. Whether or not the Plaintiff is a Customary Law Child.

ii. Whether or not the deceased was suffering from Dementia at the time the WILL was executed in 2008.

iii. Whether or not the deceased was capable of giving instructions and whether she was the same person who directed the WILL to be prepared.

iv. Whether or not the signature on the WILL dated 30^th May 2008 is the usual signature of the deceased.

v. Whether or not the WILL of the deceased was validly executed in accordance with the WILLS Act 1971 (Act 360).

vi. Whether or not it was the 1^st Defendant who procured the two (2) persons who are witnesses in the WILL.

vii. Whether or not the 1^st and 2^nd Defendants have always coveted the property of the deceased.

iv. The Plaintiff’s Case:

[9] The Plaintiff testified for himself and called three other witnesses to close his case. The case of the Plaintiff from the Witness Statement filed and adopted as the evidence in chief is that the 1st Defendant is his first cousin and the 2nd Defendant is his aunt. According to the Plaintiff following the death of his parents in Nigeria he was brought to Ghana and first lived with one Mrs. Hanson-Nortey, but in 1969 when he was about 14 years old the Deceased took him from Mrs. Hanson-Nortey and thereafter lived with him as her own child. He testified that he was cared for, educated and encouraged to secure a career by the late Major Alice Oye Akrofie deceased and he continued to live with her till her death in July 2015.

[10] According to the Plaintiff the deceased “authorized him to receive on her behalf her House No. 15 Soya Road, Teshie Nungua Estate from Mrs. Dorothy Tamakloe; on her subsequent occupation of the said house, she allowed him to occupy the outhouse, and permitted him to add 2 rooms to the said outhouse”. It is also the case of the Plaintiff that when the Deceased travelled to the United States of America she left the said house at Teshie Nungua Estate with all the contents to his care and protection and permitted him to “make improvements to the said house by constructing burglar proof of the windows and terrazzo floor to the bed rooms”.

[11] Rev. Akrofie further testified that whilst the deceased remained in the United States she wrote to him letters and cards by which she referred to herself as “Mama”. Copies of some of the letters and cards were tendered as Exhibits “A1” to “A4” at trial. The Plaintiff further testified that shortly after the Deceased returned to Ghana from the US in “1997 and in 1998 I was posted to Dodowa by my employers, the World Vision International”. According to the Plaintiff he noticed that the Deceased was already showing signs of dementia, and therefore “I usually came home at weekends and also at times when the deceased wanted to attend hospital”.

[12] The Plaintiff further testified that as the condition of the deceased worsened she began to lose money and therefore sometimes asked for money from friends. According to the Plaintiff as the mental state of the Deceased worsened it became a hindrance to her driving especially after she was involved in an accident, and therefore he was the one who always drove her around when the need arose. The Plaintiff tendered as Exhibit “B1” and “B2” copies of report on accident and amount paid for repairs from Masai Motors Limited.

[13] Rev, Akrofie further testified that it is not true that the 1st Defendant was the one who took the deceased out for her appointments when her conditions worsened. According to him he lived with the deceased and took personal care of her throughout that period except for the times he was away at his workplace. He testified that in 2007 onwards the Deceased’s mental state and usually wandered away from her residence. Consequently, according to him in 2007 he interviewed Cynthia Odei and employed her as the caretaker to assist the deceased. It is also the case of the Plaintiff that because of the mental state of the deceased, he agreed with Mr. Felix Kwabena Odei, the head of family that the 1st Defendant should sign cheques held at the Standard Chartered Bank, Spintex Road to case money for the maintenance of the deceased. He denied the 1st Defendant’s contention that she only signed the cheques for the deceased because of her old age or tiredness.

[14] It is the further case of the Plaintiff that if the deceased could not sign her own cheques to purchase basic necessaries to support herself then it is clear that she was suffering from dementia. The Plaintiff further testified that both witnesses to the Will have advised him that it was the 1st Defendant who caused them to sign a document they each suspected was the Will of the deceased. According to him the said witnesses to the Will informed him that the deceased did not sign the Will in the presence of any of them neither did she direct any one of them to sign the said Will but rather it was the 1st Defendant requested the two witnesses to sign the said Will separately. It is the further case of the Plaintiff that his information is that the deceased played no part in the execution of the Will as the 1st Defendant took the alleged Will and left the room.

[15] It is the case of the Plaintiff that the deceased lacked the mental capacity to execute the Will because she was suffering from dementia. Rev. Akrofie also testified that the “signature on the alleged Will is NOT the usual signature of the deceased”. According to him the 1st Defendant caused the signature to be forged on the Will. According to him the Will was not in accordance with law and therefore same should be declared invalid.

[16] The Plaintiff further testified that the 1st Defendant with the active support of the 2nd Defendant collected all the jewellery, clothes and documents from the deceased bedroom including passport and the title to the house. The Plaintiff further testified that the 1st Defendant changed the locks to the Master bedroom and later the living room whilst the deceased was alive but without her consent. It the Plaintiff’s case that the 1st Defendant took advantage of the state of the deceased to unlawfully possess her property all with the connivance of the 2nd Defendant.

[17] Finally, to establish his claim that he is the child of the deceased the Plaintiff tendered at trial Exhibits “C” and “D” being the programme for the funeral of the deceased and the tribute he wrote and read at the funeral. He specifically made reference to a paragraph in the biography and his reference to the deceased as “mother”. Based on all of the above and other matters spoken to the Plaintiff implored the Court to grant his reliefs.

Felix Kwabena Akrofie

[18] The Plaintiff next called Mr. Felix Odei Akrofie. He said he is a Retired Armed Forces Officer and a Pensioner. He told the Court that the deceased is his sister and knows the parties in the suit. The pith and substance of his evidence was that he was aware that the Plaintiff continued to live with the deceased when she moved to the Teshie Nungua estate and lived with her until her death. He also told the Court that since 1998 when the Plaintiff was posted to Dodowa the deceased sometimes called him when she wanted to attend hospital or an important meeting and he always made himself available to drive the deceased because she was already “showing signs of dementia”.

[19] According to him sometimes in 2007, the Plaintiff informed him that the dementia was getting worse and he also noticed in conversations with her that she was having loss of memory and so he instructed the Plaintiff to contact the 1st Defendant to assist in managing the affairs of the deceased including hiring a “caretaker and also have the cheques of the deceased signed and monies taken out to maintain the deceased”. He also said the 1st Defendant always reported conditions or situations in the house as the head of family for decisions to be made.

[20] Mr. Kwabena Akrofie further told the Court that at a family meeting he found out that the deceased pension was adequate to meet all her bills but also found out that the Plaintiff was responsible for all the utility bills in the deceased’s house. Among other matters spoken to, the witness also told the Court that the Deceased recognized and regarded the Plaintiff as her child because they always lived together.

[21] In regards to the main issue, Mr. Kwabena Akrofie told the Court that in 2012 the Plaintiff informed him that he had heard from reliable sources that the 1st Defendant had forged the Will of the deceased but he advised him to be patient and wait for further evidence at the appropriate time. He also told the Court that “the conduct of the 1st Defendant towards the property of the deceased even before she died convinced him that the allegation that she had forged the Will of the deceased is true”.

Cynthia Odei

[22] Madam Cynthia Odei was the next witness called by the Plaintiff. She testified that she knows the Plaintiff as the nephew of the Late Major Alice Oye Akrofie and he lived in the same house as the deceased. She also said she knows the defendants as the niece and sister respectively of the deceased. According to her in 2007, the 1st Defendant and the Plaintiff interviewed her separately, after she had been introduced to them by the deceased. She said after the interview she was employed as a care taker and went to live at H/No. 15 Soya Road Teshied-Nungua Estate Accra where she took care of the late Major Alice Oye Akrofie.

[23] Madam Odei further testified that in 2007, shortly after she was first employed as a caretaker to the deceased she noticed that she was not mentally alert. According to her, the deceased’s speech was not coherent and she kept opening the taps which controlled the water in the house in her master bedroom and also in the kitchen and left the water to run off. She also said whenever she opened the refrigerator she left the door ajar and sometimes she changed her bed sheets and pillow cases three times a day and also left lights on without switching them off.

[24] Further Madam Odei said, the deceased would turn on the oven of the cooker, place food therein and forget and thereby causing the food to get burnt. According to her she also sometimes opened the doors to her room and left them open and therefore as a result, the Plaintiff nailed the door to the main hall to prevent the deceased from opening it. She also said the deceased had hallucinations and for example, would see an army of imaginary ants on the wall. As a result of this perception of ants, she would plaster the walls with soap. Madam Odei also said she noticed that the deceased took a dislike for the 1st Defendant and her husband and did not delight in seeing them.

[25] Madam Odei testified that sometime in May 2008, Mrs. Kate Serwah Jonah, the 1st Defendant came to the house where she lived in the morning between 9 and 10 a.m. She said the deceased was at the time sitting in a chair at the hall and the 1st Defendant pulled out a document from her bag and put same on the table and put a pen by the document. Madam Odei said the deceased got up and started pacing up and down the hall. Let us hear the witness in her own words:

“1st Defendant then called me and inquired from me who would be available to sign the documents for her. I responded that it could be Auntie Rose (Rose Atiegar) or Auntie Johnson (Mrs. Juliana Kwatchey-Johnson). I suggested that Auntie Johnson was nearer. 1^st Defendant asked me to lead her to see Auntie Johnson. I therefore accompanied her to Aunties Johnson’s house, she was there alone. On arrival, 1^st Defendant after greeting her, asked her to come and see something for her. Auntie Johnson agreed and accompanied the 1^st Defendant and myself into the hall of the house. We saw the deceased sitting looking rather dull on a chair. On arrival into the hall 1st Defendant requested Auntie Johnson to sign the document on the table for her. Auntie Johnson complied. 1st Defendant thanked Auntie Johnson and escorted her back to her house”.

[26] According to Madam Odei on the 1st Defendant’s return after seeing off Auntie Johnson the 1st Defendant asked her also to sign the said document and she did after which the 1^st Defendant placed same in a bag and left the house. According to her she later went to inform the Plaintiff about what had transpired that morning in the house.

Juliana Kwatchey-Johnson:

[27] The Plaintiff also called Madam Juliana Kwatchey-Johnson to testify in support of the Plaintiff’s case. She told the Court that she knows the Plaintiff who lived with the deceased. According to her she does not know the 2nd Defendant but got to know the 1st Defendant, Mrs. Kate Serwah Jonah sometime in May 2008 when she came to her house with Madam Cynthia Odei, then caretaker of the deceased and requested that “I come to the house of the deceased and see something”.

[28] She said she accompanied 1st Defendant and Madam Cynthia Odei into the hall of the deceased. She continued that “on entering the hall of the deceased I saw the deceased sitting on a chair looking dull and somber. She ignored my greetings. I saw documents and a pen on a table and 1st Defendant pointed at them. The 1^st Defendant invited me to sign the documents; so I took the pen wrote my name and signed the documents. The 1^st Defendant thanked me and escorted me back to my house. That when I left the house of the deceased I wondered what documents the 1st Defendant had caused me to sign. I narrated the incident to my daughter, Mrs. Ruth Dodu and she advised me to inform the Plaintiff. I informed the Plaintiff and he took me to his lawyer to narrate the incident to him”.

[29] The Plaintiff called no other witness and closed his case. In a nutshell that is the evidence given to the Court by the Plaintiff.

v. The Defendant's Case:

[30] Both Defendants testified in this matter. The Defendants’ case is that they have done nothing wrong and that the deceased testatrix did not have dementia when she made the Will in 2008. They also deny that the signature of the testatrix was forged.

[31] The 1st Defendant as per her adopted witness statement at trial testified that the Plaintiff is her first cousin and is the first born of her uncle who shared the same parents with her mother the 2^nd Defendant. She said her aunt, the late Alice Akrofie (Deceased) did not have a child of her own but she helped to take care of the children of most of her siblings including the Plaintiff and herself and therefore she loved by everyone. She stated the “the Plaintiff was at no point the customary child of the Deceased”.

[32] She also testified that she always had a close relationship with the Deceased such that “when I was growing up my mother, the 2^nd Defendant, would leave my brother and I in the care of my Auntie and we regularly spent our holidays and vacation with her”.

[33] According to her she started taking care of the Deceased sometime in 2007 till the time of her death in 2015. Mrs. Serwah-Jonah said in 2007, upon realising that the Deceased was aging and could not carry out every task for herself, she thought it wise to find somebody that would manage the affairs of the house and also provide companionship since the Plaintiff was living in the same compound as the Deceased but was not residing in the main house and also has his own dealings to carry out. According to her the Deceased at the time was in a right frame of mind and able to manage affairs independently to the extent that she herself found one Cynthia Odei to be her help before asking her to interview her to see whether she was the right person for the job and the helper worked for the Deceased from 2008-2010.

[34] The 1st Defendant further testified that at the time the deceased executed the Will in 2008 she was not suffering from severe dementia and as she appreciated and understood her actions and their implications. The 1st Defendant tendered Exhibits 6A and 6B to support her testimony.

[35] According to the 1st Defendant, it was as a result of her close relationship and trust the Deceased had in her which led her to put her in charge of her affairs to the extent of “interviewing the helpers, arranging payments from the Deceased’s account and even terminating the employment as and when the Deceased desired”. Mrs. Serwah-Jonah also testified that the Deceased in consultation with her bankers arranged with her bankers to add her as a signatory to her account to enable her to draw money from her bank account for her maintenance and upkeep as it became difficult for the deceased to go about her activities alone due to tiredness and old age. She also said she was the one who at the time was taking care of the Deceased. According to her it was the Deceased who instructed her bankers to add her as a signatory to her account for her upkeep and not the Plaintiff and his witness.

[36] Further according to the 1st Defendant, she was the one who went to the market and run errands on behalf of the Deceased such that “I was doing the marketing, paying the property rent, ground rent, telephone bills and pension dues all on behalf of the Deceased from her account”. She tendered as Exhibit “7” some of the necessary bills.

[37] The 1st Defendant further testified that whilst the Deceased was alive the Plaintiff threatened her when she went into the house and called her a witch, a bitch and a bastard in March 2015 and as a result “I reported the matter to the police for protection since I still had to go and attend to the Deceased but felt threatened and unsafe and the matter was sent to the District Court at Lekma”. The parties were referred to a Court connected Alternative Dispute Resolution on the 29^th day of June 2015 because both parties were family. She testified that she wrote a letter for withdrawal because the Deceased had passed on before the date that “we had to go for ADR”. Copy of the Court proceedings and letter of withdrawal were tendered at trial as Exhibits “9A” and “9B”.

[38] According to Mrs. Serwah-Jonah the Will was executed by the Deceased when she was in her right frame of mind and on her own accord and at no point in time did she sign or forge the signature of the Deceased as purported by the Plaintiff. She also testified that that the Will was also duly executed in the presence of the two witness Mrs. Juliana Kwatchey Johnson and Cynthia Odei. According to her after the death of the Deceased on the 8^th of July 2015 the members of the family contributed for the funeral which was held on the 22^nd of August 2015 and the Will was read on the 10 of September 2015.

[39] The 1st Defendant tendered Exhibits “1” to “9”. A copy of the Will was tendered as Exhibit “1”. Exhibit 3 was a letter from Dick K. Anyadi & Associates dated 26^th August 2015 addressed to the Registrar of the High Court for the reading of the Will. Exhibit 4 was a letter from the Registrar notifying all the relevant persons in regards to the reading of the Will. Exhibit was the funeral brochure and Exhibit 6 is a letter from LithurBrew and Company, former Solicitors of the 1st Defendant to the 37 Military Hospital and the Hospital’s response. Exhibit 8 is a statutory declaration of one Kafui Ayer, who is presently based in Brooklyn Center, Minnesota, USA dated March 21, 2016.

[40] The 2nd Defendant also testified at trial. Her evidence by and large was to the effect that she and her late sister, the deceased had close relationship, which transferred to her children. She also said she sometimes spent some weekends with the deceased “just to keep her company and ensure that the house helps were taking good care of her since she was left virtually alone with the house helps even though the Plaintiff was living in the same house with her”. Mrs. Dogor also testified that she was aware the 1st Defendant was running errands for the deceased including shopping for foodstuffs, employing domestic helpers and taking the deceased to her hospital appointments. She also testified that she was aware her sister signed a form to enable the 1st Defendant to be signatory to her bank account. She did not proffer any evidence in regards to the Will but said the Plaintiff is not entitled to his reliefs. In a nutshell, this is the evidence before the court. I note that I have provided details of the evidence heard because this is a facts-driven case.

vi. The Court’s Analysis, Opinion & Conclusion:

[41] I proceed to evaluate the nature of the evidence adduced at the trial. The general position of the law on proof is aptly stated by Kpegah J. A. (as he then was) in the case of ZABRAMA VRS. SEGBEDZI (1991) 2 GLR 221 at 246 as follows:

“…a person who makes an averment or assertion, which is denied by his opponent, has a burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of the burden”.

[42] In my examination of the evidence adduced by the Plaintiff and Defendants in the instant suit therefore, both the Plaintiff and Defendants have an obligation to adduce sufficient evidence in support of their respective claims and same would be measured, weighed in the same degree and extent which any litigant in a civil trial is obligated to adduce in order that upon a proper balance the logical inferences and findings would be arrived at relevant to support the conclusions. For, the general position of the law is that each party to the suit who alleges per their claim must adduce evidence on the facts and issues to be determined by the court to the prescribed standard set by statute Section 14 of the Evidence Act (NRCD 323) 1975 provides.

“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”

[43] Admittedly, several issues have been raised by the parties for determination by the Court but with respect, most of them can hardly be described as relevant. In the opinion of this court, there are only about three critical Issues which are very central to the determination of the controversy between the parties herein. Indeed it is the policy of the law that only those issues which are germane to the determination of a case must be decided by the court and not irrelevant issues although the parties might have led evidence on them. See DOMFE v ADU (1984-86) 1 GLR 653.

[44] In the opinion of the Court, the relevant issues are issues (a), (b) and (c) together with issue (e) because in my view they are the most important issues for determination gathered from the pleadings and the evidence offered in this case.

[45] Before discussing the issues aforementioned I wish to state that since this is a matter which concerns a dead person and the love she allegedly had for the parties as differently portrayed, I am mindful of the fact that the deceased is not here to speak for herself. Therefore, the evidence ought to be thoroughly sifted and my mind as the judge ought to be first of all, be in a state of suspicion in regards to what the parties have said about the deceased. See GRACE ASANTEWAAH v. MARK AMANKWAH ADDO [2008] 1 GMJ 2009 @ page 212.

[46] I now start my analysis. The first issue for my consideration is whether or not the Plaintiff is a customary law child of the deceased. First and foremost both parties agree that the deceased did not have a child of her own. The Plaintiff testified that in 1969 the deceased took him form Mrs. Hanson-Nortey and “adopted me as her “child”. To my mind the law relevant to this issue is well-settled. In Ghana a child is adopted through the formal Court system or by custom. The governing principles in regards to customary adoption are those set out by the Court of Appeal in PLANGE v. PLANGE [1977] 1 GLR 312-323 by Anin JA at head note 1 of the report. The Court stated that:

“the essential requirements for a valid customary adoption, were the expression of the adopter's intention to adopt the infant before witnesses and the consent of the child's natural parents and family to the proposed adoption - such consent to be objectively ascertained or inferred from either their express words or conduct”.

The learned jurist further stated that “the legal effect of customary adoption was (a) the adopted child acquired the status of a child…and enjoyed the same bundle of rights (including rights of inheritance), duties, privileges and obligations as the natural child”

[47] In this case, there is no evidence that the Plaintiff was adopted by the deceased through the Court and therefore that is not applicable. Rev. Paul Akrofie says he was customarily adopted by the deceased. He says the deceased signed her letters off as “mama” and he also referred to her as Mom and lived all his life with her until her demise.

[48] This is what transpired when the Plaintiff was cross-examined by the Defendants’ Counsel on the issue on October 31, 2017.

“Q: You have also stated in paragraph 10 of your witness statement that you became the unnatural son of the deceased. Can you tell us what you mean by “unnatural son”

A: The deceased was not my biological mother and that is what I meant by “unnatural son”

Q: So you will agree with me that there was nothing like adoption by the deceased

A: I have a difficulty in understanding what adoption is.

Q: You have stated in paragraph 10 the last sentence that the late Mrs. Alice Akrofie adopted you as her child. What do you mean by your use of the word “adopted me as a child?”

A: In my layman’s understanding is because she never had her own child and she came to the Hanson Nortey’s in the beginning of the year 1967 for me to come live with her. The first attempt was made in 1967 another was made in 1968 but she only succeeded in the year 1969. In the year 1969 I had just completed my standard seven and she came with an army sergeant to pick me to go to stay with her at the Military Hospital quarters number 9.

Q: I am suggesting it to you that what you have just described is not an adoption and the late Mrs. Akrofie never adopted you as her son

A: With the greatest respect that is not correct she came to take me to go live with her as her child”

[49] Having reviewed the evidence and the law, I am of the opinion and with the greatest respect to the Plaintiff living with someone you call mother and she referring to herself as Mama, without more are not enough grounds for adoption to be inferred based on the law. It is therefore my finding that there is no evidence that the Plaintiff was customarily adopted by the deceased.

[50] I next turn my attention to issues “b” and “c” and answer the question whether or not the deceased was suffering from dementia at the time of the Will in 2008 and whether or not she was capable of giving instructions for the Will to be prepared. Whilst the Plaintiff says the deceased had dementia and therefore lacked the compos mentis, the Defendants on the contrary contest the Plaintiff and his witnesses’ contention and say the late Alice Oye Akrofie was of sound mind in 2008.

[51] The question for my consideration is: was this allegation of dementia proven? Having subjected the pleadings and the evidence on record to critical scrutiny and analysis, I find from the evidence that, the simple answer to the question is NO. The Plaintiff provided no scintilla of evidence to prove the allegation of dementia. Indeed, he admitted under cross-examination that he provided no medical proof of same. All that the Plaintiff and his witness Madam Cynthia Odei did was to mount the witness box to give instances of what they believe showed that the deceased had dementia. With the greatest respect again to the Plaintiff, dementia is a medical condition and one does not prove same by mere words of a person who has no expertise to say so.

[52] My task is to review the evidence and to assess whether or not the Plaintiff’s testimony that the deceased had dementia starting from 1997/98 and therefore in 2008 she lacked the mental capacity to make a Will is supported by the evidence. The old case of MAJOLAGBE v. LARBI [1959] GLR 190 @ 192 has long shown the path to follow and laid in pithy terms what a party in an action such as the one at bar must prove on the preponderance of probabilities in order to secure a favourable verdict in his favour. Also, the Court of Appeal case of FRANCE v GOLIGHTLY & ANOR [1991] 1 GLR 74, CA (holding 3) where it was held “where a fact was capable of positive proof it was wrong to rely on assumptions” undermines the Plaintiffs allegation on this point.

[53] Also, it has long been held in the case BANK OF WEST AFRICA LTD. vs ACKUN [1963] 1 GLR 176@181 that the party who asserts the positive carries the burden to lead evidence in proof of his claim or assertion. In the opinion of the Court the Plaintiff failed to lead any evidence to prove that the deceased had dementia in 2008 and therefore lacked the mental capacity to instruct that a Will be made for her.

[54] To my mind, the only cogent and reliable evidence on the issue before the Court was provided by the Defendant which is Exhibit 6B. It is a letter dated 25^th February 2016 to LithurBrew and Company from the Division of Medicine, 37 Military Hospital. The letter was signed by Lt. Col (Dr.) Samuel Odonkor. After providing the medical history of the deceased he concluded by stating that:

“CONCLUSION

1. Maj (Rtd) Alice Akrofie’s mental state as at 2008 was stable and had capacity to make a credible Will.

2. Maj (Rtd) Alice Akrofie’s mental illness began as Depressive illness in August 2008. However after the Mild Stroke in Nov, 2009, her condition deteriorated to Dementia till her last review date (6 Jul 2012)”…”

[55] I certainly prefer the medical evidence provided by the Defendants on the issue of dementia to the Plaintiff’s lay opinion. I therefore hold that in May 2008 when the Will was made the deceased did not have dementia and therefore she was capable of instructing Counsel. I consequently resolve the issues (b) and (c) in favour of the Defendants.

[56] Finally, I now proceed to address the germane issue which is issue “E”, being whether or not the Will of the deceased was validly executed in accordance with the Wills Act, 1971. To my mind it is the crucial issue despite my findings above because it is the primary legal issue. The Plaintiff’s two witnesses who are also the witnesses to the Will, Madam Kwatchey-Johnson and Madam Odei testified as to how they signed the Will as witnesses. They were both cross-examined by the Defendants’ Counsel. Based on their evidence Counsel in his written legal submission stated that:

“The evidence of the two witnesses of the Plaintiff also proof that they executed the Will in the presence of the Testator.

The evidence of the 2008 WILL propounded by the Defendants the attempt to paint it as a forgery, cannot, on the evidence, be borne out.

It seems to me therefore that the argument of learned counsel for the Plaintiff begs the question. The crux of the matter was whether the will was signed by the testator, and if so, whether it was properly executed by him in accordance with the provisions of the Wills Act, 1971 (Act 360)”.

[57] In in my view Counsel indeed correctly pointed out the main question and it is whether or not the Testatrix signed the Will, and if so when? To my mind that is the main issue. The Wills Act, 1971, Act 360 provides at Section 2 titled Execution of a Will as follows:

(1) No will shall be valid unless it is in writing and signed by the testator or by some other person at his direction.

(2) No signature shall be operative to give effect to any 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 him in the presence of two or more witnesses present at the same time.

(4) A signature by some other person at the direction of the testator shall be made by that other person in the presence 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 no form of attestation shall be necessary. [Emphasis Mine].

[58] In his authoritative book on Wills, titled “Laws of Wills in Ghana”, the learned jurist stated that “The witnesses are required to sign in the presence of each other, and the presence of the testator is highly essential throughout the ceremony. In Re: Essien alias Baidoo (Decd), Essien v. Adisah & Ors, it was held by the Court of Appeal as follows:

“The provisions of the Wills Act, 1971 (Act 360), S2 (1) & (3) would not be complied with unless both witnesses attested and subscribed after the testator had made his signature or had acknowledged the same to them when both were actually present at the same time. However, there could not be acknowledgement unless the witnesses either saw or had the opportunity of seeing the testator’s signature, despite the fact that the testator might have expressly declared that the document to be attested to was his will”.

[59] In In re Okine (Decd); Dodoo and Another v Okine and others [2003-2005] 1 GLR 630, it was also stated that though the law did not require for the proper or due execution of a Will that the attesting witnesses must necessarily see the testator sign his name or that the attesting witnesses had to sign in the presence of each other, Section 2 (3) of Act 360 requires that the testator’s signature had to be made or acknowledged by him in the presence of at least two witnesses present at the same time. [Emphasis Mine].

[60] Also, the law is that where there is a dispute as to a Will those who propound it, that is rely on it must clearly show by evidence that prima facie, all is well and in order. That is to say there has been proper and due execution and that the Testator had the necessary mental capacity and freely and duly executed the Will. In this case, have the Defendants who rely on the Will showed by evidence that the Will was properly executed?

[61] Mr. Oppong-Adade for the Defendants in his written submission stated that the witnesses signed the Will on their own volition and “they all signed in the presence of the Testator who was sitting in the Hall”. To my mind and with the greatest respect, Learned Counsel’s submission is over-enthusiastically put because it fails to acknowledge the un-contradicted evidence on record that when the witnesses entered the hall of the deceased, the testatrix failed to acknowledge their presence and played no part when they signed the document. From the evidence there is no proof as to when the Testatrix signed the Will and also there is no evidence that she acknowledged her signature in the presence of the two witnesses present at the same time contrary to the Defendants’ pleading. I note that the Kafui Ayer who allegedly prepared the Will in her statutory declaration signed and tendered at trial said after the preparation of the Will she gave same to the deceased with instruction as to how it should be signed and believes her instruction was complied with. With respect, the statement is speculative and unreliable in my opinion. It baffles me as to why a lawyer who prepared a Will failed to see to it that it was executed properly in her presence and in accordance with law.

[62] Both witnesses testified that they signed the document at different times at the direction of the 1st Defendant and not the deceased whose Will they witnessed. Having reviewed the evidence heard at trial and the record before me including the statutory declaration of the lawyer who drafted the Will, it is my finding that the Will at the centre of this dispute execution was not in accordance with the law. In my opinion the analysis in In re: Essien applies in this case. Since the execution of the will goes to the validity of the Will I hold that the Will dated May 30, 2008 and read on September 10, 2015 was not valid because it was not properly executed in accordance with the Wills Act, 1971 9Act 360).

vii. Conclusion & Disposition:

[63] I hereby conclude that the Will was not properly executed and therefore it is declared invalid. I also order that the said will be cancelled as of no effect. Overall, I am satisfied that the Plaintiff has succeeded in proving his case with regards to the reliefs (a) and (b) endorsed on the writ of summons. I therefore enter judgment in his favour but make no order as to costs.