WILBERFORCE vs. WILBERFORCE [1999]DLHC495

Date	1999-07-15
Suit No.
Citation No.	[1999]DLHC495

HEWARD-MILLS J

ODRO FOR THE PLAINTIFF.

CAB-ADDAE FOR THE DEFENDANT.

[1999]DLHC495
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">WILBERFORCE<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">WILBERFORCE<o:p></o:p>[HIGH COURT, CAPE COAST]<o:p></o:p>[1999-2000] 2 GLR 311<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">

</div>COUNSEL:<o:p></o:p>ODRO FOR THE PLAINTIFF.<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">

CAB-ADDAE FOR THE DEFENDANT. <o:p></o:p>

</div>JUDGEMENT<o:p></o:p>Heward-Mills J.
<o:p></o:p>The plaintiff is seeking a declaration that the will of his late
father, Thomas Graham Wilberforce, dated 11 March 1997 is null and void. He
wants an order restraining the defendants, who are the executors, from giving
effect to the will.<o:p></o:p>The father had during a visit to Cape Coast from Accra, been taken
ill and admitted into hospital on 9 March 1997. The plaintiff contends that the
will executed two days after the admission is null and void because his father
had been diagnosed as “not in control of his mental faculties to appreciate
and/ or give instructions.” The will therefore had been obtained by fraud.<o:p></o:p>The defence deny the allegations of lack of mental capacity and
fraud. The will had been prepared in accordance with instructions handwritten
by the father (exhibit Al) and a typed draft approved by the father. They rely
on due execution of the final will.<o:p></o:p>The issues set down for trial are:<o:p></o:p>(1) Whether the deceased could be said to be in the right frame of
mind and/ or in control of his mental faculties during the execution of the
will?<o:p></o:p>(2) Whether it was essential for the doctor caring for the patient
at the time to issue a medical certificate confirming the deceased possessed
the necessary mental capacity?<o:p></o:p>(3) Whether there were inconsistencies between the instructions
given by the deceased and the will executed, and the effect of such
inconsistencies?<o:p></o:p>(4) Finally, whether the will was obtained fraudulently?<o:p></o:p>Testamentary capacity is an essential prerequisite and must exist
during the giving of instruction as well as during the execution of the will.
It is defined by Cockburn C J in the leading case of Banks v Goodfellow (1870)
LR 5 QB 549 of 565 as “soundness at mind, memory and understanding. The ability
to recall intended beneficiaries, an understanding of the nature of their
claims on him, and the testator’s full knowledge of the extent of his
properties of which he is disposing.” Where testamentary capacity exists at the
time of instructions but was intervened by infirmity during execution, then the
will must naturally give cause for suspicion, which requires further
investigation, especially where as in this case, close family members with
legitimate expectations have been excluded.<o:p></o:p>Mere suspicions, however, are not sufficient to invalidate a will;
for though physical infirmity may have reduced the mental capacity of the
testator, parole or documentary evidence is admissible to validate the will if
there is evidence to show first, that the instructions were given whilst the
testator was in good health and secondly, the will had been prepared in accordance
with those instructions and that at the time of execution, the testator
understood he was signing a will for which he had given instructions: see
dictum of Sir James Hannen in Parker v Felgate (1883) 8 PD 171 at 173 approved
in Perera v Perera [1901] AC 354 at 361.<o:p></o:p>Evidence from the defence shows the testator, soon upon arrival in
Cape Coast, had expressed his intention of making his will. He had by his own
hand written out the instructions, exhibit Al. He had handed it over to his
lawyer. A typed draft had been prepared and given to him for approval. He had
on 5 March 1997 signed the typed draft (exhibit A2) and written “lawyer Go
Ahead” at the bottom of the draft. On the 11 March, two days before his death,
the lawyer’s clerk and a nephew of the testator, had taken the prepared will
for his signature. According to the lawyer’s clerk, there was a</main>