IN RE AYAYEE (DECD.); KUKUBOR AND ANOTHER vs. AYAYEE [1980]DLHC2137

Date	1980-07-31
Suit No.
Citation No.	[1980]DLHC2137

CECILIA KORANTENG-ADDOW J.

J. K. OFFEH FOR THE PLAINTIFFS.

AMANEY FOR THE DEFENDANT.

[1980]DLHC2137
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													<main id="main" class="content" style="min-height: 60rem" >IN RE AYAYEE (DECD.); KUKUBOR AND ANOTHER <o:p></o:p>vs. <o:p></o:p>AYAYEE<o:p></o:p>&nbsp;[HIGH
COURT, ACCRA]<o:p></o:p>[1982-83] GLR 866<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
31 JULY 1980<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

J. K. OFFEH FOR THE PLAINTIFFS. <o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

CECILIA KORANTENG-ADDOW J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF KORANTENG-ADDOW J.<o:p></o:p>The
plaintiffs are the executors appointed under the will of the late Gabriel
Quesah Ayayee. The second plaintiff is the daughter of the deceased and the
defendant is the brother of the full blood of the second plaintiff. The
plaintiffs’ claim is for an order for probate in solemn form of a will executed
on 23 January 1969, by the deceased and an order to remove the caveat filed by
the defendant. The defendant by his defence alleged that the said will had been
obtained by undue influence of the second plaintiff and that the deceased, when
he executed the will was completely blind in both eyes, hard of hearing,
extremely old and that his memory was greatly impaired and that the deceased
did not know and approve of the contents of the will. By a counterclaim the
defendant seeks to obtain probate in solemn form of a will executed by the
deceased on 25 November 1965 and a codicil dated 4 October 1965.<o:p></o:p><o:p>&nbsp;</o:p>The
testator died on 10 June 1971. The mother of the second plaintiff and the
defendant had died so their late father married a woman called Alice Monyie in
1940. The circumstances which led the defendant to allege undue influence dates
back to about eight years prior to the demise of the deceased. The testator and
his wife Alice moved into his own house at Asylum Down in about 1962 or 1963.
They had four young children. The second plaintiff and her sisters and brothers
are all grown-up persons. The second plaintiff, hereinafter called Martha, is
about 50 years old or thereabout. Before 1962 she was married and she lived
with her husband. Her other sisters were Ruth and Georgina. In 1963 Martha
moved into her father’s house and lived there with the father, step-mother
Alice and the children of her father by Alice. The plaintiff’s case is that
soon after Martha moved into the house, Alice left with all her children and
she was left to take care of the old man. According to Martha, apart from loss
of his sight, the testator was physically well, and he did everything himself
except that he had to be led due to blindness. She said after her step-mother
left the house, she had to take care of the old man, she did everything which a
wife would do, and that her sister Georgina who had also come to live in the
house did not assist her. She said she did not know when her father made the
will, but during the memorial service following her father’s death, lawyer S.M.
Codjoe of blessed memory told her of the will.<o:p></o:p><o:p>&nbsp;</o:p>The will
was taken to the house eventually by the registrar of the High Court, where it
had been deposited. Before the will was read, the members of the family were
shown the envelope containing it. On seeing the envelope they objected to it on
the ground that it was not the will of the deceased. Subsequently, Martha
applied for probate, but the defendant filed a caveat. This action is to prove
the will in solemn form and remove the caveat. She denied she knew anything
about the execution of the will, or that she influenced the old man in its
making.<o:p></o:p><o:p>&nbsp;</o:p>The
lawyer who drew up the will is dead, and there is no evidence as to how the
deceased came to give instructions for this will. The will is typed on an
indenture form. It bears the signature and thumbprint of the testator, and two
persons subscribed as attesting witnesses. Those who subscribed as witnesses
were Charles Aryeetey Tetteh and Victor Paapa Nelson. They were at one in their
evidence. Their evidence was that they were invited by the late lawyer S.M.
Codjoe and taken to the testator’s house, and they went into the testator’s room.
In their presence, the lawyer read the will to the old man who approved of the
contents and signed same. The lawyer also held his hand and thumbprinted the
document. Both witnesses then signed the document at the space shown to them.
They said when they subscribed the document the testator was sound physically
and mentally.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiffs contended that the will conforms with the Wills Act, 1971 (Act 360)
and that Act is to govern it. The will is dated 23 January 1969. Act 360 came
into force on 1 June 1971. The deceased died on 10 June 1971. Even though a
will speaks from the date of the demise of the testator, the law which governs
it is the law which is in existence when it was executed. Act 360, s. 19 (2)
specifically provides: “This Act shall only apply to wills made after t</main>