IN RE ANIM-ADDO (DECD); NKANSAH ALIAS ANANE AND ANOTHER vs. AMOMAH-ADDO AND ANOTHER [1989]DLHC592

IN RE ANIM-ADDO (DECD); NKANSAH ALIAS ANANE AND ANOTHER vs. AMOMAH-ADDO AND ANO... [1989]DLHC592

Date	1989-08-16
Suit No.
Citation No.	[1989]DLHC592

ARYEE AG. J.

E. D. KOM FOR THE APPLICANT.

CHINBUAH FOR THE RESPONDENT.

[1989]DLHC592
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >IN RE ANIM-ADDO (DECD); NKANSAH ALIAS ANANE AND ANOTHER<o:p></o:p>&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; vs.
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>AMOMAH-ADDO AND ANOTHER <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1989-90] 2 GLR 67<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:
16
AUGUST 1988<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">

E. D. KOM FOR THE APPLICANT.<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 0in 0in">

ARYEE AG. J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ARYEE AG.J.<o:p></o:p>This
application is brought under section 13 (1) of the Wills Act, 1971 (Act 360).
In it the applicant who is the widow of the testator, prays the court for an
order for financial provision for herself and for the infant son of the
testator aged eight years. In her affidavit in support, the applicant states
that the contents of the will were made known to the family on 19 April 1988
through the normal means. The will provided that the widow be given the sum of
¢100,000. The provision made for the said infant son is that he should be
educated to secondary school level. The bulk of the estate left to a niece of
the testator, comprised of 45 houses including the matrimonial home, shares in
companies, plots of land, government stocks and cash balances.<o:p></o:p><o:p>&nbsp;</o:p>Two
affidavits in opposition were filed on behalf of the respondents by
Amomah-Addo, one of the executors, and Abena Asantewaah, one of the
beneficiaries under the testator’s will. They claim that the number of houses
listed in the will were twenty, out of which seven had already been given out
as gifts by the testator in his lifetime. They further claim, inter alia, that
the testator in his lifetime built a house for the applicant in her hometown.
That in spite of that fact, it is the intention of the family, the executors
and the beneficiaries of the will to allow the applicant to continue to live in
her apartment in the matrimonial home and enjoy all the facilities in the house
for life. This intention they have made known to the applicant.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>Before
the court could be moved on behalf of the applicant, counsel for the
respondents raised a preliminary objection that the present application is not
properly before the court. The application, counsel says, has been brought
under section 13 (1) of the Wills Act, 1971 (Act 360) which reads:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“13. (1)
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, made reasonable provision for the needs of such
father, mother, spouse or child out of the estate of the deceased.”<o:p></o:p><o:p>&nbsp;</o:p>It is the
submission of counsel that the application can only be brought under the
section when probate has been granted. Since probate has not been taken, the
court cannot consider the application much more make an order under it. This is
so because the executors have no access to the properties to enable them
execute any orders that the court might make.<o:p></o:p><o:p>&nbsp;</o:p>Counsel
for the applicants raises the issue that there have been two affidavits filed
by the respondents, in none of which they have raised this preliminary
objection. The respondents having taken a fresh step in the matter are deemed
to have waived their right to raise the present objection.<o:p></o:p><o:p>&nbsp;</o:p></span</main>