KYERE AND ANOTHER vs. FORSTER AND ANOTHER [1992]DLCA4243

Date	1992-11-19
Suit No.
Citation No.	[1992]DLCA4243

AMPIAH JA

ADJABENG JA

SAPONG J

C B ZWENNES (WITH HIM PETER ZWENNES) FOR THE APPELLANT.

D ANYADI FOR THE RESPONDENTS.

[1992]DLCA4243
																																						<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" >KYERE AND ANOTHER<o:p></o:p>vs.<o:p></o:p>FORSTER AND ANOTHER<o:p></o:p>[COURT
OF APPEAL]<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">

[1993 - 4] 1 GBR 410 – 417&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; DATE: 19 NOVEMBER 1992<o:p></o:p>

</div>COUNSEL:<o:p></o:p>C
B ZWENNES (WITH HIM PETER ZWENNES) FOR THE APPELLANT.<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">

D
ANYADI FOR THE RESPONDENTS.<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">

AMPIAH
JA, ADJABENG JA, SAPONG J<o:p></o:p>

</div>ADJABENG
JA. On 5 November 1992, we dismissed the 2nd defendant-appellant’s appeal and
reserved our reasons. We now give the reasons for so deciding.<o:p></o:p>On
13 November 1980, Kwesi Awere-Kyere, now deceased, wrote down and signed what
he thought was his last will. A few days later, that is, on 18 November 1980,
he died. Probate of the alleged will was granted to one of the executors named
therein, A A Forster, on 13 April 1981. The father of the deceased, Opanin
Kwesi Kyere, and the deceased’s widow, Rose Awere-Kyere, who was married under
the Marriage Ordinance, however, thought that the document in respect of which
probate had been granted was in law not a will. They, therefore, took action at
the High Court, Accra, to challenge the validity of the alleged will. They took
the action not only against the grantee of the probate, A A Forster, but also
against Juliana Nkansah, who claimed to be a wife of the deceased and who was
living with the deceased in the matrimonial home at the time of his death.
Among the seven reliefs claimed by the plaintiffs are the following:<o:p></o:p>&nbsp;“(a) a declaration that the holograph dated
13th day of November 1980, purported to be the will of Kwesi Awere-Kyere, is
not a will as provided for in the Wills Act 1971 (Act 360).<o:p></o:p>(b) an order revoking the grant of
probate of the said holograph to the defendants made on the 13th April 1981.”<o:p></o:p>The
basis of the plaintiffs’ action has been clearly set out in paragraphs 4 and 5
of their accompanying statement of claim. They state therein as follows: <o:p></o:p>&nbsp;“4. The plaintiff says that the said holograph
was not a will within the terms of the Wills Act and ought therefore to be
declared invalid, void and of no effect.<o:p></o:p>PARTICULARS<o:p></o:p>(a) The said holograph was
not properly and validly attested to since the attestation thereon was done by
only one witness contrary to s 2(3) of the Wills Act 1971 (Act 360).<o:p></o:p>(b) Although the
appointing clause naming the executors was placed outside the body of the
holograph the separate signature of the deceased Kwesi Awere-Kyere was not
attested to by any witness as provided for by the Wills Act 1971 (Act 360).<o:p></o:p>(c) The signature of the
testator was not made or acknowledged by him in the presence of two or more
witnesses present at the same time nor is there any indication on the said
holograph to show that the only witness was present at the time when the
testator signed the holograph.<o:p></o:p>5. The executors having been
wrongfully appointed they could not in law be granted probate of the said will
or at all.”<o:p></o:p>The
defendant denied these averments. The trial judge, however, accepted the
plaintiffs’ contention and declared the holograph invalid as a will. The 2nd
defendant, Juliana Nkansah, appealed to this court against the decision.<o:p></o:p>Before
us, counsel for the 2nd defendant-appellant argued the following grounds of
appeal: the original ground 3(a) and (b), the additional ground 1(a), (b), (c)
and (d), and additional ground 2. The original ground 3 states as follows:<o:p></o:p>“3. (a) The learned trial judge erred
in law in declaring the holograph will of the deceased Akwasi Awere-Kyere
invalid for the reasons given by him in his judgment/decision.<o:p></o:p>(b) The learned trial judge
misconstrued the provisions in section 2 ss 1 - 6 of the Wills Act 1971 Act 360
and thereby misdirected himself in law as to their meaning and effect on the
case before him.”<o:p></o:p>The
said additional grounds are as follows:<o:p></o:p>“1. The learned trial judge
misdirected himself in law and on the evidence -<o:p></o:p>(a) when he erroneously
held that the testator did not comply with s 2(2) and s 2(3) and s 2(5), when
in fact only s 2(5) was not fully complied with.<o:p></o:p>(b) By further erroneously
holding that s 2(3) required the two witnesses to sign the will.<o:p></o:p>(c) By not holding the provision
of s 2(5) of Act 360 to be merely directory requiring substantial compliance
only and not mandatory for the purpose of the validity of the will, more
especially so in the circumstance of the holograph will in the action.<o:p></o:p>(d) By failing to regard
the time-tested rule of law and practice </main>