Akenten II & Ors. v. Osei [1984-86] 2 GLR 437.

AKENTEN II AND OTHERS v. OSEI [1984-86] 2 GLR 437

HIGH COURT, ACCRA

APALOO C.J.

STATUTORY REF.

Wills Act, 1971 (Act 360), s. 2.

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Apaloo CJ. The late Francis Kwasi Gyembibi was a talented and successful man of business. His home was in Offinso, Ashanti, but he had wide business interests in Kumasi and Accra. He died possessed of considerable property in these two cities. The evidence suggests that he was an active man who was normally in good health. He died suddenly 

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on 16 August 1983, virtually within hours of being taken ill while at work. Whether he had a premonition of how suddenly he would depart this life, or not, it is difficult to say. But one thing seems clear. He was anxious that if his end came, he should leave his testamentary wishes in a form laid down by law. He had good reason—he managed to acquire a not inconsiderable bit of worldly possessions.

Both parties to this suit, while in serious disagreement on other issues, are at least agreed that Mr. Gyembibi (whom I should hereafter refer to as the deceased) died testate. The plaintiffs say that on his death, his testamentary wishes were expressed in a document dated 24 June 1981. They say that document was executed and attested in the manner laid down by the law and they invite me to pronounce upon it and admit it to probate. The defendant objects that that document was a forgery—the signature appearing thereon not being that of the deceased. He says that although the deceased died testate, his testamentary wishes were expressed in a document dated 20 December 1978, and lodged in custody of the High Court, Kumasi.

It is common learning in this branch of the law that a will is ambulatory; that it speaks only from the time of death. The corollary of this, is that a testator has every right to change his mind at any time before his death. If he does so, and validly revokes an earlier will, then the former will is, for all practical purposes, as dead as the testator himself. The plaintiffs’ position is that if indeed the deceased made an earlier will, it was revoked by the later one made in 1981. And it is this will that they propound.

Accordingly, the issues which the parties settled and which they invite me to decide are:

(a) whether the will deposited in the Accra High Court Registry ... is genuine;

(b) whether or not the signature appearing on the said will is that of the late Francis Kwasi Gyembibi.

As agreed issues, they do not raise any complex matters. But in determining these, one must look at the guidance laid down by case law as to what burdens the parties carry and which particular burden is assumed by either of the parties. A local case that seems to me to provide a most helpful guidance in this type of case, is the 1951 decision of the West African Court of Appeal in Johnson v. Maja (1951) 13 W.A.C.A. 290 at 292 where it is stated:

“Where there is a dispute as to a will, those who propound it must clearly show by evidence that, prima facie, all is in order; that is to say, that there has been due execution, and that the testator had the necessary mental capacity, and was a free agent. Once they have satisfied the Court, prima facie, as to these matters.... the 

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burden is then cast upon those who attack the will, and that they are required to substantiate by evidence the allegations they have made as to lack of capacity, undue influence, and so forth.”

In this case, the defendant who contests the will, did not allege want of capacity, undue influence or that the deceased was at any time, in other than sound mind. The only allegation made is that of forgery. It is pleaded in paragraph 5 of the statement of defence as follows:

“... the defendant says that the said purported will in the custody of the court is fraudulent in that the signature purported to be that of the late Francis Kwasi Gyembibi is not his making.”

Accordingly, as I see it, the evidential burden assumed by each side in view of the positions taken by the parties, is that the plaintiffs must show that the document in respect of which they seek probate, is the testamentary wish of the deceased; that he was compos mentis at the date of its execution and was a free agent; and, lastly, that it was executed and attested in accordance with the requirement laid down in section 2 of our Wills Act, 1971 (Act 360). Upon showing this, the burden then shifts to the defendant to prove the forgery he alleges.

Both sides seem to be fully alive to this burden and put in the witness-box witnesses who gave oral testimony of these matters—a batch of documents showing the admitted handwriting of the deceased were also tendered in evidence. In my opinion, the most vital witnesses produced by the plaintiffs were two chartered accountants in the accounting firm of Osei Wiredu and Associates by name Osei Kwabena and Asante Wiredu respectively (I will refer to them as the firm). For the defendant, Mr. B. B. Mensah a law clerk in the chambers of Messrs Afrifa & Co. and who seems fairly familiar with the deceased gave evidence. Two other witnesses testified on what seems to me peripheral matters for the plaintiffs. They are Lawyer Obeng—solicitor to the firm, and the third plaintiff—the deceased’s eldest son. The defendant also put in an expert witness, Mrs. Emily Doe, the Principal of the Government Secretarial School in Accra.

Mr. Osei Kwabena, one of the partners in the firm, testified that some time in May 1981 the deceased called at the office of the firm. He brought along with him an unsigned will prepared by a firm of solicitors—Vidal Buckle & Co. He said this was his will and he requested the firm to look at it and review it in financial terms. For this purpose, he left the will in the firm’s custody for about four weeks.

During that period, the firm studied the provisions of the will and made such changes as they considered desirable in financial terms. When the deceased returned four weeks later, they went over the suggested 

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changes with him. When these were agreed, the deceased left and returned to the office within two days.

At that time, two copies of the will had been typed out. The deceased was given a sight of the will. He read it over, expressed satisfaction with its terms and proceeded to sign both copies. He then requested the two partners to attest the will. Both did so in his presence. The deceased took the top copy away and left the second executed copy with the firm. As the firm were the auditors and accountants to the deceased’s companies, they kept a personal file for him in the office. They put the duplicate copy of the will in the deceased’s personal file. He said on that day, the deceased was in normal health. Indeed, the witness said he was “happy and gay.”

The second member of the firm, Asante Wiredu’s evidence, save for very insignificant details, completely tallied with that of Osei Kwabena. Both identified the will (exhibit B) as the duplicate copy they signed.

Both again identified their signatures. Both denied with emphasis a defence suggestion that the will was not signed by the deceased. If their evidence is true, then the plaintiffs would have at the very least, shown, prima facie, that the will was in order, that is, that it was validly executed by a testator who was in sound mind and was an entirely free agent.

The defendant countered that evidence by the testimony of Mr. Mensah who, as I said, is a law clerk and who seems practiced at will making. His testimony was to the effect that having been introduced to the deceased in 1968, the latter took to him and requested him to draft wills for him on a number of occasions, and at other times, he brought him draft wills made by other persons—sometimes lawyers, and asked him to make fresh wills for him along those lines. His evidence carried the clear impression that the deceased was in the habit of changing his mind about the bequests in his will fairly frequently. On the specifics Mr. Mensah swore that he made a will for the deceased in 1968. This was executed in the chambers of Messrs Agyepong and Amankwa—solicitors for whom the witness worked as a law clerk.

He said at the deceased’s request, he deposited that will in the High Court. According to Mensah, in 1973 the deceased requested him to make a fresh will for him. He was desirous of revoking the 1968 will and for this, he handed him a handwritten note containing his testamentary wishes. That note was tendered in evidence as exhibit 2 and it was not disputed that it was in the deceased’s handwriting. The witness said he made another will for the deceased embodying the wishes he expressed in exhibit 2. It was again duly executed in the solicitors’ chambers.

Again in 1978, the deceased had reason to repent some of the bequests he made in the 1973 will. He therefore requested Mensah to 

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draft yet a third will for him. He did so but this time that will was executed and attested in the office of Messrs Barclays Bank, Prempeh II Street. After the execution and attestation, the deceased handed back the will to Mr. Mensah who in accordance with the deceased’s request deposited it in the High Court, Kumasi. A photocopy of that will was produced in evidence (exhibit 3). Indeed it is that will that the defendant would seek to propound.

It seems the deceased had a penchant for changing the bequests in his wills. He seems to know that he could change his mind at any time and he exercised that right a trifle liberally. According to Mensah, in 1982, the deceased handed him two unsigned wills dated 1981 and 1982, respectively. The 1981 one was on an ordinary paper without any indication who had made it. The 1982 one was on an indenture form. It purports to have been drafted by Buckle & Co. and was signed at the back by a Mr. Ward Brew. These draft wills were produced in evidence as exhibits 4 and 5, respectively. According to Mensah, the deceased asked him to go through these two draft wills and prepare yet a fresh will for him based on the bequests contained in those two documents. As events show, the 1981 draft will was on the same paper and contains precisely the same provisions as the will the accountants said they made and which they swore the deceased executed in their office on 24 June 1981 (exhibit B).

Mr. Mensah said he made corrections on the 1981 draft will to reflect the altered wishes of the deceased on exhibit 5. He then wrote out another will in his own hand and the deceased made some slight changes on it in his own writing. That manuscript was tendered as exhibit 6. Apparently, after these changes, the altered will was typed out on an indenture form in January 1983. This was shown to the deceased. He took it away. The deceased again had second thoughts about some of the provisions in that will also. He again made changes on it in his own hand. Apparently, he marked “No” the bequest in respect of which he had changed his mind and marked “Yes” those he wished to retain. In one of the bequests, that is the shares in the hotel, he increased his gift of the shares to the donees from one-quarter to one-third. He returned this typed draft will to Mensah and asked him to prepare yet another will to reflect his altered wishes (exhibit 7). According to Mensah, by 15 August 1983, he had completed yet another draft of the will. The deceased called at his office and was handed this draft. He promised to return the following day presumably for its execution. He died suddenly the next day, that is on 16 August, without executing the latest will also.

So on Mr. Mensah’s story, of the many testamentary documents he drafted for the deceased, the latest one which the latter lawfully executed was the 1978 will. He was not present in the firm’s office 

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when the deceased was said to have executed the 1981 will, the subject of this action. He was therefore in no position to say whether or not the accountants told the truth when they swore that the deceased in fact, executed that will in their presence. But the defendant contends that will could not have been executed by the deceased because it is the top copy of that will that he brought to Mensah. It was then unsigned and the deceased requested Mensah to use that draft for the purpose of making a fresh will which was eventually typed out as the 1983 will. So the defendant argued that if the top copy was unsigned, the duplicate copy (exhibit B) similarly could not have been signed. Therefore the defendant says, if the firm produced a signed copy of that will, then it could not have been signed by the deceased and the signature appearing on the face of the exhibit must be a forged one.

It is now necessary to determine the veracity or otherwise of these three star witnesses, that is Osei Kwabena, Asante Wiredu, and Mensah. They are all closely acquainted with the deceased and all knew his signature well. None of these derived any benefit under the will and there is no apparent reason why any of them would wish to swear falsely in this matter. They all testified before me only a few days ago and I preserve a lively recollection of the impression they made on me. With regard to Osei Kwabena and Wiredu, this impression was wholly favourable. Indeed, I have seldom seen witnesses who gave more clearly, an impression of reliability and truthfulness. I am prepared to believe everything they say.

But I will not rest my acceptance of their evidence on the fallible guide of their impeccable demeanor alone. In my opinion, the common sense of this case and the probabilities entirely support the truth of their story. That they are persons in whom the deceased reposed considerable confidence, cannot be doubted. They were intimately connected with his business and their background and professional standing were not impeached in any way. Why would they want to forge or be concerned with forging the deceased’s will? All human conduct is inspired by some motive. None has been suggested why they would wish to do this.

Although they seem to be on very cordial terms with the deceased, they charged fees for the professional services they rendered him. In connection with this will, they asked for a fee of ¢5,000. They said this fee was paid by the deceased. The latter must have considered that he was engaged in a serious business, that is, making a will to record his last wishes. Is it likely that having paid as much as ¢5,000, he would take the top copy away unsigned and leave the duplicate copy also in that manner? What object would it serve if the deceased left an unsigned duplicate of his will with his financial advisers? According to Mensah, anytime the deceased signed his will, he would sign the 

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original and duplicate copies simultaneously. That precisely is what the two accountants said he did in their presence. Wiredu testified that when the deceased was taking the top copy of the will away, they offered him no advice but it was agreed that the firm should keep the duplicate on file for safety. That conduct makes sense and is in keeping with elementary prudence.

In Jarman on Wills (8th ed.), Vol. 1, at p. 168 the learned author writes: “Sometimes a testator for greater security executes his will in duplicate, retaining one part and committing the other to the custody of another person (usually an executor or trustee) .....” (The emphasis is mine.)

In view of their proved relationship, it seems to me entirely natural that the deceased should, of all persons, entrust his duplicate will to the custody of this firm. They are more or less his financial mentors.

They put his hotel venture on a firm legal and business footing. They not only incorporated it but set up the accounting system which they regularly audit. They even arranged for the appointment of a new manager. Their firm also assisted him professionally in his other business—the Adiembra-Aduana Group.

They filed the annual returns of the company. That the deceased came to trust the firm implicitly, is also shown by the fact that when he was summoned to appear before that dreaded institution called the Citizens Vetting Committee, it was to the firm that he turned. They filled the assets form for him and compiled a complete dossier on him. It would seem to be in accord with the probabilities that the deceased should have thought it safe to entrust to their custody the duplicate of his executed will.

The conduct which the firm exhibited when they learnt of the deceased’s death, shows that the deceased’s confidence in them was well placed. The firm quickly sought legal advice as to what they were to do with the duplicate will in their possession. They acted promptly on that advice and deposited the will in the High Court and informed the executors named therein. I cannot be persuaded that this is the conduct of persons who forged or were concerned in forging the deceased’s will.

I have asked myself the question: is there any intrinsic evidence in this will or other wills made by the deceased to lend credence to any suggestion that the 1981 will was forged? For this purpose, I compiled a chart of the wills which were executed or which were drafted but unexecuted on the deceased’s orders in 1973, 1978, 1981, 1982 and 1983. They showed a consistent pattern. The objects of the deceased’s bounty, were the same. As a class, they were his nephews, nieces, daughters, sons, wife, brothers and an only sister. Even the actual named beneficiaries were the same. For instance, the defendant received 

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gifts in all the executed and unexecuted wills and so did the third plaintiff. Under the 1978 will, the defendant received, jointly with his maternal brothers and sisters, a bequest of house No.14, Achimota Village and all the personal effects therein. He also received, again, with his brothers Yaw Gyamfi and Yaw Safo together with the third plaintiff and his brothers Kwasi Agyeman and F. K. Gyembibi (junior) a gift of “Hotel de La Plaza” business at Dichemso.

Under the 1981 will, although still a beneficiary, the deceased bequeathed to the defendant jointly with Yaw Safo and Yaw Gyamfi, house No. O.T.B. 326 Odum, Kumasi, and his shares in the Adiembra and Aduana Group. To the third plaintiff and his brother F. K. Gyembibi (junior) he bequeathed house No. 2 and 13 Block D, Dichemso, and one-half shares in the Hotel de La Plaza & Restaurant Ltd.

The 1982 and 1983 draft unexecuted wills showed the same intention to benefit both the defendant, third plaintiff and the same class of persons. For instance, in the 1982 draft will which was prepared by Vidal Buckle & Co and indorsed at the back by Ward Brew, both the third plaintiff and the defendant received precisely the same bequests that they received under the 1981 will. Also the deceased’s nephews had the identical bequests in both the 1981 and 1982 wills. The firm of Osei Wiredu & Associates had nothing to do with the latter will. Why should an independent firm of solicitors in 1982 draft a will which confer substantially identical benefits on the deceased’s children, nephews and nieces as the will made a year previously by Osei Kwabena and Asante? The 1983 will which Mensah himself put forward as the deceased’s wishes, shows an intention to benefit the same class of beneficiaries and subject to slight changes, in like manner. For example, while the nephews still get a bequest of house No. O.T.B. 326 Odum, Kumasi, they now had only twenty per cent of the shares in the Adiembra Aduana Group. Unless it can be said that the firm conspired with Mensah and Vidal Buckle to draft wills in identical terms for the deceased without any mandate from him, the proper inference to draw from an examination of the provisions in the executed and unexecuted wills, is that having made and executed a will in 1978, the deceased revoked it and changed some of the bequests in that will in the fresh will he executed in 1981.

The deceased then changed his mind about some of the bequests and caused fresh wills to be drafted for him in 1982 and 1983 but did not execute either before his sudden death in mid-August 1983.

I am now in a position to say in the light of the Johnson v. Maja (supra) decision that the plaintiffs who propound the 1981 will have shown, prima facie, that that will was freely executed by the deceased and attested by them and that at the time he executed it, he was in sound mind. I must now determine whether the defendant has, for his 

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part by evidence substantiated his claim that that will is “fraudulent in that the signature purported to be that of the late Francis Kwasi Gyembibi is not his making.”

The main factual evidence led by the defence in proof of this, is the testimony of Mr. B. B. Mensah.

Admittedly, he was familiar with the signature of the deceased and was competent to express an opinion about it. When I asked him about the signature on the will, his answer was:

“I doubt whether exhibit B is the deceased’s signature. I have been witnessing his signatures on various wills I have been preparing for him but I cannot say for sure whether this is his signature.”

The witness was in no position to assert, at any rate, then that the signature on the will was not that of the deceased. When, however, counsel for the plaintiffs asked him the same question, his cautious statement and feeling of hesitation disappeared. He then asserted positively that exhibit B was not the deceased’s signature. He did not give any reason for his now confident stand. He was then shown ten exhibits which appear to have been signed by the deceased. The witness said positively that these exhibits bore the signature of the deceased. I myself have carefully scrutinised these signatures and compared them with the one on the will exhibit B. I find it difficult as a non-expert to say that all eleven signatures including that on the will exhibit B were not written by the same person.

While I am not prepared to say that this witness made a deliberate attempt to mislead, I formed the impression that he could not reconcile himself to the fact that the deceased could make and execute a will not prepared by himself. I believe he held himself out to the deceased as one who was skilled in drafting wills and I think he was deriving considerable financial benefit from this activity. Although he denied charging fees, he said the deceased gave him a tip of ¢100 when he drafted the 1973 will for him. I think the truth is that he has been drafting these wills for reward and is pretending to be doing this gratuitously because he must be aware that not being a legal practitioner, he commits an offence against section 44 of the Legal Profession Act, 1960 (Act 32), if he drew a legal document such as a will for “fee, gain or reward.”

Again, as I said, although I do not think that Mensah told lies on all the matters about which he testified, yet he was rather less than candid on this issue. But in respect of one aspect of his evidence, I have no doubt that he told a deliberate untruth. That was when he said the third plaintiff admitted to him that he knew something about the 1981 will and thereafter knelt before him and asked for forgiveness. The veiled 

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suggestion here was that the third plaintiff acted jointly with the accountants Osei Kwabena and Wiredu in forging the deceased’s signature on the 1981 will. The third plaintiff said he never saw the will exhibit

    1. There is no evidence that he was anywhere near the firm’s office on the date of its execution, or indeed ever had sight of that will.

The third plaintiff is the eldest of the deceased’s children and worked with his father as the Accra representative of the latter’s business. He was himself one of the main objects of his father’s bounty. He, together with the deceased’s youngest child, F. K. Gyembibi, were charged by their father with responsibility for the maintenance and upkeep of the deceased’s children after the latter’s demise. He derived almost identical benefit under the will allegedly forged by him in 1981 and the will Mensah himself typed out in January 1983 as representing the deceased’s true wishes. Elementary reason would reject any suggestion that the third plaintiff forged in 1981 a will to confer on himself a like benefit which a January 1983 will was going to confer on him. In my opinion, unlike Messrs Osei Kwabena and Wiredu, Mensah has proved himself untrustworthy in part and his testimony cannot be relied on in proof of the defendant’s case that the signature appearing on the will exhibit B is not that of the deceased.

To strengthen Mensah’s evidence, the defendant called Mrs. Emily Doe, the principal of the Government Secretarial School, as a witness. Having seen and heard her, I have no doubt that she is an honest witness who was desirous of assisting the court with the truth as she knew it. I reject the suggestion that her evidence was either orchestrated or rehearsed. And I see no objection to the procedure adopted by counsel in letting her have in advance, a sight of exhibits B and 5 to enable her express an opinion. That, in my experience, is the normal procedure in eliciting expert evidence.

Having said that, I am bound to remark that useful as her evidence was, it did not carry the defendant’s case much further. She is not a handwriting expert and proffered no opinion on the admitted and disputed signatures of the deceased. Her special field of expertise is in typing. She seems to be skilled at determining the particular typewriter used in typing manuscripts, and she can tell from her experience, the differences in impressions made by different typewriters. With this knowledge, she expressed the opinion that the 1981 will (exhibit B) and the unsigned draft will of that year (exhibit 5) were typed at the same time on the same type of electric typewriter—IBM. She gave reasons of a more or less technical nature for her opinion. She concluded therefore that the unsigned will (exhibit 5) is the top copy of the signed will (exhibit B). I have looked at (exhibit 5 and B) carefully and the 

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similarity between them, especially of the texture, typing impression and spacing, is rather striking. The defendant relies strongly on her expert opinion as probative of fraud. This is not an unreasonable position to take. The plaintiffs countered it by a suggestion that the deceased must have given the top copy of exhibit B to Mensah and he made the identical copy (exhibit 5) and suppressed the executed top copy.

Since the probabilities of this case weigh heavily in favour of the truth of the evidence of the firm of accountants, it is not unreasonable to formulate theories to get rid of Mrs. Doe’s somewhat damning opinion evidence. Another possibility which occurs to me, is that the deceased himself having decided to alter some of the bequests in his 1981 will may have procured a copy of that will to be made. Presumably unknown to the partners, he got a clerk in the firm’s office to make the copy and if he happened to be the individual who typed the original executed will, it would not be impossible to make a copy which simulates in all respects the original will. It seems clear it was the deceased himself who handed exhibit 5 to Mensah and it is not improbable that if he was minded of doing this, he would be disinclined to let him know that he had already executed that will. I concede this is all speculation but this is unavoidable where a witness seeks to establish as a fact, what she did not have personal knowledge of but attempts to do so by expert evidence.

When the firm’s direct evidence of the execution and attestation of the will (exhibit B) is placed in juxtaposition to the opinion evidence of Mrs. Doe, the latter seems to me to be hardly of any weight and one ought to bear in mind the general value of expert evidence. According to Phipson on Evidence (10th, ed.) at 481:

“The testimony of experts is often considered to be of slight value, since, they are proverbially, though perhaps unwittingly, biased in favour of the side which calls them; as well as over-ready to regard harmless facts as confirmation of pre-conceived theories...”

I have come to the conclusion that the defendant has failed to satisfy me that the will (exhibit B) is fraudulent and that the signature thereon is not that of the late Francis Kwasi Gyembibi. I find that the contrary is the case. Accordingly, I pronounce for that will in solemn form and hold that the executors named therein are entitled to have it admitted to probate.

I was, at one time, considerably exercised in my mind about cost. I felt the defendant who himself received a not inconsiderable benefit under the will, should not have provoked a pointless litigation. But on

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reflection, I think the testator’s incessant change of mind about the bequests in his never-ending wills provide him with a plausible case for inviting me to pronounce against the 1981 will (exhibit B). Accordingly, I order that the costs of this action, which I assess at ¢5,000, should be borne out of the estate.

Judgment for the plaintiffs on the relief claimed on the writ. 

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