IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
ACCRA - A.D 2019
COMFORT BREW ANTHONY - (Plaintiff)
JEAN ANTHONY - (Defendant)
DATE: 15TH MAY, 2019
SUIT NO: GT 1793/17
JUDGES: ERIC K. BAFFOUR ESQ. J
In this suit the extent and application of Article 22(1) of the Constitution and section 13(1) of the Wills Act, 1971, Act 360 have been invoked and comes up for fascinating discussions.
Plaintiff who claim to be a widow and upon the death of her husband of sixteen years, Lawrence Arthur Anthony, all her personal belongings had to be thrown out of her matrimonial home by the Defendant who was an ex-wife of the deceased husband together with the children of the Defendant, birthed this writ out of the Registry of the court, upon realizing that the Will of the late husband, whiles making the Defendant as the Executor/Trustee of the Will, did not make any provision at all, let alone a reasonable one for her, and accordingly sought the following reliefs:
i. A declaration that the Plaintiff is the surviving spouse of the late Lawrence Arthur Anthony (deceased).
ii. A declaration that the Plaintiff is entitled to a reasonable provision from the estate of the deceased in accordance with section 13(1) of the Wills Act, (Act 360) of 1971 and article 22(1) of the 1992 Constitution by reason of being a surviving spouse.
iii. An order directed at the Defendant to give to the Plaintiff out of the estate of Lawrence Arthur Anthony (deceased) such reasonable provision as shall be determined by this honourable court.
iv. Costing [sic] including solicitor’s fees and any other order(s) as the honourable court may deem fit.
Defendant in her Statement of Defence admit having sighted a certificate of customary law marriage between the deceased and Plaintiff after the demise of the deceased but deny the existence of any such marriage at the time of the death of the deceased as to her all the available information including tax documentations filed in Canada between 2004 and 2014, all showed that the deceased was divorced at the time of his death.
Defendant further dispute the value of the estate as amounting to Gh¢1,255,000 as there would have to be some deductions including an amount of Gh¢300,000 with SIC Life that the deceased named his mother, Rose Leat as the beneficiary. Besides, there has been another challenge by three persons who contend that they are the children of the deceased with which DNA has proved so and may also be entitled to reasonable provisions out of the estate.
With issues joined the following were set down as the germane matters for resolution:
1. Whether or not the Plaintiff was married to the late Arthur Lawrence Anthony (deceased) at the time of his death and therefore his surviving wife.
2. Whether or not Plaintiff is entitled to substantial provision out of the estate of the late Lawrence Arthur Anthony.
3. Whether or not the Defendant has denied Plaintiff access to her matrimonial home
4. Any other issues arising from the pleadings.
Plaintiff testified in person and called the younger sister of the deceased, Iris Appiah as PW2 and her own relative, Abigail Edna Amanoo as her PW1. As part of her case that she was married under customary law in the year 2000 to the deceased, she tendered Ex ‘A’ being registration of customary law marriage, email correspondence between Plaintiff and Defendant to demonstrate the deep love and bond that existed between the two as love birds as Ex ‘B’, pictures of Plaintiff, the deceased and the mother of the deceased who visited them in Abelemkpe, Accra to also demonstrate that the family was aware of the marriage as Ex ‘C’, Ex ‘D’ as a copy of the probate granted Defendant and evidence of the value of the estate as Ex ‘E’.
Defendant on the other hand testified and defended the action through her lawful attorney, Dawn Eliena Beckley, who put forward the power of attorney granted her as Ex ‘1’, the evidence of the death of Lawrence Arthur Anthony as Ex ‘2’, the Will together with the probate granted defendant to execute the estate of the deceased in the province of Ontario, Canada as Ex ‘2’, an SIC Life letter to the effect that Rose Leat, mother of the deceased was the beneficiary of the monies of deceased with them as Ex ‘4’ and ‘5’, Barclays Bank statement of deceased showing his account and balance as Ex ‘6 and tax documentations from Canada to show that deceased stated that he was divorced as Ex ‘7’
EVALUATION OF THE EVIDENCE AND APPLICATION OF THE LAW
Plaintiff stated in paragraph 3 of her statement of claim that she was a spouse of the deceased and was married to the deceased under customary law in the year 2000, Defendant admit of having sighted a register of a customary law marriage among the documents of the deceased but still denied the claim of Plaintiff as being a wife of the deceased in paragraph 4 of the statement of defence. And accordingly the first issue that was stated and agreed as an issue for determination was whether or not the Plaintiff was married to the deceased Lawrence Arthur at the time before his death and therefore a surviving wife.
Plaintiff put forward Ex ‘A’ being the registration of the customary law marriage as evidence of her marriage. And contend that at no point in time was she divorced. Pw2, a sister of the deceased also testified that she became aware of the marriage of her brother to the Plaintiff during his lifetime. In fact I find that even implicit in the cross examination of Pw2 was an admission of the customary law marriage of the Plaintiff to the deceased in the following:
Q: I also notice from your witness statement that you were not present at your brother’s marriage ceremony which took place in the year 2000. Is that correct
Q: When did he first inform you of the marriage?
A: I came on a visit with Rosemary, my daughter and two West Indian friends of mine. When I came the Plaintiff called from Germany and I gave the phone to my brother, and it was after that he told me that the lady who called was his wife”.
I do not think this positive assertion by a sister of the deceased testator was denied in the cross examination. As far as I can glean the only evidence put forward by Defendant during trial against the claim of Plaintiff as a wife are one, the tax declarations made by the deceased testator in Canada and also the burial brochure of the deceased that there was no tribute from the Plaintiff nor was any mention made of any such marriage during the funeral. Regarding the use of tax declarations, Defendant put forward Ex ‘7’ series’ and used that to confront Plaintiff under cross examination in the following way:
Q: Take a look at Ex ‘7’ series. Those are series of tax declarations that your husband made in Canada in respect of tax payment and where applicable refunds due him.
A: It looks like that
Q: Look at the second page, where it says at the very top ‘goods and services’ … the deceased put in there ‘divorced’
A: Yes, I can see that. But there was no time that we were divorced, even six days prior to death, I was with him and the mother was around. We even had photos together the very day I was leaving for Germany… When I arrived in Germany I called to inform him that I was back in Germany, then he said he had been admitted to [sic] Nyaho Clinic.
Q: Now the exhibits you just looked at, are a series of exhibits starting from 2007 until about 2015, which was the last one he filed to the Tax Authorities in Canada before his death. In all of these documents he indicated his marital status as ‘divorced’ … what exactly the basis of continuously describing himself as divorced man whiles he remained married to you.
A: I do not know why he wrote what he wrote. We were never divorced. The children bear witness and every summer we were in Canada…
Q: I am putting it to you that the deceased declared himself on a statutory form as divorced was because he was divorced at the times he made these declarations
A: Not to my knowledge. He never brought any drink to my family to indicate that. Even the marriage certificate itself was with my husband in a brief case…”
From the evidence on record, I find no difficulty at all in finding as a fact that the Plaintiff was a spouse of the deceased and was married to the testator by virtue of Ex ‘A’ which is the certificate of the registration of the customary law marriage. A ‘spouse’ is defined to mean the wife or husband of a deceased person. See section 18 of the Wills Act, 1971, Act 360. Under section 1 of the Customary Marriage and Divorced (Registration) Law, 1985, PNDC 112, any marriage contracted under customary law is required to be registered and in any proceedings a certified true copy of the entry in the register of marriage is admissible in evidence as sufficient proof of the registration and validity of the marriage. Accordingly, Ex ‘A’ not having been impugned in anyway, it is sufficient proof of the existence of the marriage between Plaintiff and the deceased.
Learned counsel for Defendant further claim in his written submission to the court that with the deceased consistently having stated that he was divorced in his tax declarations, more probably meant that he was divorced. Further, absence of tribute from Plaintiff during the funeral has been employed as a pointer of the divorce. Yes it is true that Customary Marriage and Divorce (Registration) Amendment Law, PNDCL 263 does not make it compulsory for registration of divorce for customary marriages. But on whom is the burden to proof divorce on where it is Defendant that has shifted her defence from one that the Plaintiff was not married to deceased to one that deceased and Plaintiff were divorced? It is trite that a party cannot prove a negative and Defendant who kept claiming that deceased was divorced had the burden to prove the divorce even if under custom by calling evidence of persons who witnessed return of the ‘tin sa’, but not rely on tax declarations as evidence of divorce. Defendant cannot use Ex ‘7’ to impeach Ex ‘A’ which is a marriage
And without any evidence from Defendant to show that Plaintiff was divorced at the time the deceased passed on by calling relatives that the ‘head drink’ was returned by deceased during his lifetime or evidence in the form of registration of customary the divorce, the procuring of Ex ‘7’ where deceased stated his status in Canada as divorced cannot in any way be used as a ground to claim that the deceased died without a spouse. The reason for the deceased to have stated that can best be known to him but the non-appearance of the Plaintiff at the funeral or any tribute from her cannot be conclusive that she was not a spouse. In any case, the brochure at the funeral was not even tendered before the court. Plaintiff explained that she was represented at the funeral as she collapsed at the airport when she was waiting to board a flight to Accra to attend the funeral due to uncontrollable grief she experienced. This claim was not denied during trial.
WHETHER PLAINTIFF IS ENTITLED TO A PROVISION IN THE ESTATE OF THE DECEASED
Having found as a fact that Plaintiff is a spouse of the deceased and was married to him under custom my next assignment is to determine whether she is entitled to any provision in the estate of the deceased husband. Ex ‘D’, ‘E’ and ‘2 being the Will and probate obtained completely left out Plaintiff as a beneficiary of any of the estate of the deceased. As the Will was made in 1994 long before the deceased met and married Plaintiff in the year 2000, and there is no evidence of a codicil, obviously the Will could not have captured any interest for Plaintiff and it is in the light of this that Plaintiff having been found by the court as a surviving spouse seeks that a provision be made for her out of the estate which per Ex ‘E’ its value was stated to be Gh¢1,255,000.00 even though in words I reckon it was wrongly stated to be One Billion, Two Hundred and Fifty-Five Thousand Ghana Cedis.
During trial, Defendant sought to posit that the value of the entire estate available will not be at the amount stated as one, an amount of Gh¢300,000 which was a SIC Life insurance had a named beneficiary in the person of Rose Leat, the mother of the deceased and therefore that amount had been released to Rose Leat. This indeed is evidence by Ex ‘4’ and ‘5’ where SIC Life indicates that the policy had a named beneficiary and Rose Leat will be the one entitled to the benefit. Again Ex ‘6’ also show that the money stated to be in the name of the deceased at Barclays Bank is actually not so. And in all the value of the estate available now will fall short of One Million Ghana Cedis. It is this residue that I am being called upon to make some provisions for the Plaintiff.
And indeed two critical provisions come up for discussions. One is article 22(1) of the Constitution which states that:
“A spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died having made a will”.
And under section 13(1) of the Wills Act, 1971, Act 360 it states as follows:
“If, upon application being made, not later than three years from the date upon which probate of the will is granted, the High Court is of the opinion that a testator has not made reasonable provision whether during his lifetime or by his will, for the maintenance of any father, mother, spouse or child under 18 years of age of the testator, and that hardship will thereby be caused, the High Court may, taking account of all relevant circumstances, notwithstanding the provisions of the will, make reasonable provision for the needs of such father, mother, spouse or child out of the estate of the deceased”.
(2) Without prejudice to the generality of subsection (1), such reasonable provision may include—
(a) payment of a lump sum, whether immediate or deferred, or grant of an annuity or a series of payments;
(b) grant of an estate or interest in immovable property for life or any lesser period”.
This provisions above are constitutional and statutory in a limited attempt to modify the right of a testator in the disposal of his self-acquired property. As the position has been the one stated in BIRD v LUCKIE  8 HARE, 306 b y Knight Bruce that:
“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 testamentary dispositions 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”.
The basic rule therefore should not be mistaken. And it is this that a court has no power to redraft the Will of a testator and the duty of the court is to as far as reasonably practicable, to construe the Will of a testator in accordance with the well-known rules of construction of a will but not to make a new one for the testator. And according Justice Azu Crabbe, in his work, ‘The Law of Wills in Ghana’ at page 106 that it was “to relieve the family of the testator from unwarranted hardship, that section 13 was enacted” and that the section confers limited power on the court. The learned Judge and author states five factors that must be met by a party that comes to court under section 13(1) of the Wills Act. And these are:
1. That the applicant is a dependant of the testator.
2. That the application was brought within three years after the grant of probate
3. That the testator failed either during his lifetime, or by his will to make reasonable provision for the applicant
4. That the applicant is suffering or likely to suffer hardship and
5. Having regard to all the relevant circumstances the applicant is entitled to support out of the estate of the testator.
The Supreme Court case of AKUA MARFOA v MARGARET AKOSUA AGYEIWAA Suit No J4/42/2012 the Supreme Court, per Baffoe-Bonnie JSC also reiterated the same principle that for article 22 of the Constitution to be invoked the applicant must satisfy the court that:
(a) that the Appellant is a dependant on the testator
(b) that the application has been brought within three years after the granting of the probate of the will
(c) that the testator failed, either during his lifetime, or by his will, to make reasonable provision for the Appellant
(d) that the Appellant is suffering, or likely to suffer hardship, and
(e) that having regard to all the relevant circumstances the Appellant is entitled to support out of the estate of the testator.
What is relevant circumstances has been said by Lord Greene M.R in TOMKINS v TOMKINS as:
“When I say relevant, I mean this, so nearly touching the matter in issue as to be such that a judicial mind ought to regard it as proper thing to be taken into consideration”.
And it will not be out of place for me to take into consideration that the Plaintiff had been a dutiful wife since the year 2000 to the deceased. There was extreme bound of love between them as seen in the email correspondence in Ex ‘B’ between them. Plaintiff in a touching and teary testimony described the husband under cross examination as:
“Q: How would you describe your husband as a person
A: I used to call him all in one. He was everything to me. Actually I have a brain of my won but my husband used to do a lot for me and I do not do anything without consulting him. He is such a patient person, a loving man, caring, I do not have the words to describe him…. We travelled around the world and he made me happy. I really had good time with my husband. As I said I did not even know I could go on till now, when he passed on. The family loves me, I love them and I still go to my mother-in law because he loved his mother so much… everyone who knew us called us love birds…”
This kind of love was not denied as existing between the love birds and is one factor I take into consideration as relevant as the attitude of an applicant must play a role in such a person being given a reasonable provision or being denied by the court. See IN RE WHITE (1914) CH 192 where a daughter of the deceased applied for a reasonable provision out of the estate of her mother under the English Inheritance (Family Provision) Act, 1938 as amended by the Intestate estate Act, 1952 was denied as there was evidence that the ordinary relationship that exist between a mother and a daughter never existed between the two.
Two it has not been shown to be that the Plaintiff has a place of her own whenever she comes to Ghana as the only place she stays with deceased is the Abelemkpe property. Pictures of Plaintiff, deceased and deceased mother when the latter visited them was exhibited. And denying her any provision will cause undue hardship to the Plaintiff. I regret the inability of lawyers for the parties to have sought an order for consolidation or even a joinder of the three persons that Defendant claim has also sued the estate also under section 13 of the Wills Act that reasonable provisions were not made for them as children of the deceased. If that had been done the court would have had a much more holistic approach as to the best way to make reasonable provisions for them as well, if there was evidence that they are the issues of the deceased. As matters stand now I will only have to confine myself with the evidence before me.
For now I am satisfied that the Plaintiff is within the class of persons specified under section 13(1) of the Wills Act and is actually a spouse under article 22 of the Constitution for which she must not be denied a reasonable provision out of the estate of the husband. Even though I had expected more evidence from Plaintiff in terms of her personal economic circumstances, but that does not cause much havoc to her case. Having been with the testator for seventeen years in a loving marriage, the circumstances are such that she must not be denied a reasonable provision out of the estate and I think the estate is substantial enough to accommodate a reasonable provision being made for her.
There was evidence that the testator left the three children by the defendant a house in Canada. The mother of the testator has been provided about Gh¢300,000 from SIC Life policy that Rose Leat was made a beneficiary. Without prejudice to the determination of the right of any person in the suit not before me and taking all the relevant factors into consideration including section 13(1) itself, I think I am inclined to grant half an interest of the Abelempke property in the Plaintiff. I do not find it necessary to make any monetary award in addition to the half interest in the Abelemkpe property.
I also do not think it right to make any award of cost against Defendant as she could not on her own have varied the dispositions made by the testator as it is a court that has the power to vary in a limited manner the wishes of a testator.
Save for these, the prayer of the Plaintiff succeeds.