Allotey (Decd.) In Re; Allotey v. Otoo [1981] GLR 393.





Wills Act, 1971 (360), ss. 12(2) & 13(1)

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Cecilia Koranteng-Addow J. In this application the court is called upon to vary the nominations made by the deceased and apportion the gratuity equitably amongst all the children of the deceased. The deceased had five children born between 1959 and 1971. On 9 September 1965 the deceased nominated his three children born at the time as beneficiaries of his gratuity and the proportion in which the children would share the gratuity was stated to be 33 1/3 each. In other words they were to share it equally. These three children are

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issues of the deceased by his first marriage with the first caveatrix. In 1968, a child was born to the deceased by his second wife; and then another in 1971 by the same marriage. The deceased died on 25 May 1979, he was an accountant employed in the Accountant-General’s Department. He made no alteration or amendment in the nomination paper. The court is therefore asked to vary the nominations made by the deceased so that all the five children share equitably. I have not been referred to any authority or rule which empowers the court to make such order, but it has been argued that an analogy should be drawn between the nomination paper and a will. It was argued that since it is to take effect after death its effect is the same as a will, and since section 13 (1) of the Wills Act, 1971 (Act 360), empowers the court to make reasonable provision for the maintenance of dependants of the deceased who has not made reasonable provision for their maintenance.

Mr. Okine, counsel for the parents of the deceased, associating himself with Mr. Ampere also asked for provision to be made for the parents of the deceased from the gratuity. Mr. Attoh for the beneficiaries, the three elder children resisted the application on the grounds that such an order for maintenance should be made from the residue of the estate of the deceased.

Miss Quartey, counsel for the Controller and Accountant-General has, in a very lucid, cogent and attractive argument, submitted that the nomination papers of a deceased made under the Pensions Ordinance, Cap. 30 (1951 Rev.), is governed exclusively by the Ordinance and its amendments. In the absence of fraud, a nomination paper made by a deceased person cannot be interfered with by the court, and that the operation of section 13 of the Wills Act cannot affect the nominations. The mischief which section 13 of the Wills Act sought to remedy has been catered for by an amending Decree, i.e. Pensions and Social Security (Amendment) Decree, 1975 (SMCD 8). Section 10 of the Decree amends section 17 of the Pensions Ordinance, Cap. 30. The amended section 17 (1) (iii) provides:

“17. (1) Where an officer dies while in the public service, the Supreme Military Council may grant, in addition to the grant, if any, made under section 16—

(iii) if the deceased officer leaves a child or children, but does not leave a spouse or no pension is granted to the spouse, a pension in respect of each child, until such child attains the age of twenty-one years, of double the amount prescribed by the preceding paragraph.” 

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(The emphasis is mine.) Section 17 (1) (v) makes similar provision for the parents of the deceased who were dependant upon him for support. The discretion given to the public officer to make nominations in respect of his gratuity and the power given to the court to make unreasonable provision for maintenance of dependants of a testator, are all powers conferred by statutes, and each provision should be construed according to the tenor of the statute creating that power or discretion. Section 13 of the Wills Act, 1971, was drafted in similar terms as section 1 (1) of the British Inheritance (Family Provision) Act, 1938 (1 & 2 Geo. 6, c. 45). The operative or relevant words in these respective Acts are “if the High Court is of the opinion that a testator has not made reasonable provision.” If the court finds that no reasonable provision has been made, then the liability to make provision for maintenance is in the same position as any other charge lawfully imposed on the estate. But where specific bequests have been made, and there is residue, then it would be ideal to make the statutory provision from the residue. In the case of In re Simson (Decd.); Simson v. National Provincial Bank Ltd. [1950] 1 Ch. 38 at pp. 44-45, Vaisey J. dealing with distribution under sections 1 and 3 of the English Act said of the situation:

“I agree that sometimes it is difficult to know whether legatees should be made parties or not, but I cannot help observing from my experience in these applications that there is far too widespread an idea that the legacies are bound to be paid in full, and that provision of this kind will have to be made at the expense of residue. Of course, residue is the normal and obvious place from which provision is made, but there are a large number of cases —and I think this is one—in which it is fairly plain that the children as residuary legatees of 3,000l ought not to be asked to shoulder the whole of the burden...”

Therefore assuming that nomination paper was synonymous with a will, the gratuity would not be the obvious place to charge the provision for maintenance under section 13 of Act 360. There is affidavit evidence of other property left by the deceased.

However, my view of the matter is that gratuity does not form part of the estate upon which such provision can be charged. The position of an applicant under section 13 is the same as any other creditor of the estate. The amount should be levied upon a fund which is attachable: a gratuity is not attachable.

Section 12 of Cap. 30 which supports my view provides:

“12. A pension, gratuity or other allowance granted under this Ordinance shall not be assignable or transferable except for the purpose of satisfying— 

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(1). a debt due to the Government; or

(2). an Order of any Court for the payment of periodical sums of money towards the maintenance of the wife or former wife or minor child of the officer to whom the pensioner, gratuity or other allowance has been granted; and shall not be liable to be attached, sequested or levied upon for or in respect of any debt or claim whatever except a debt due to the Government.”

In respect of the exception made for maintenance it is my view that such order should only be made in respect of gratuity which has not been granted to any one by the deceased, which is payable to the successor or administrator.

The Ordinance does not give any discretion to the court to tamper with or vary the specific nominations of the deceased. The applicants should seek relief under the Ordinance which created the pension scheme.

Section 10 of S.M.C.D. 8 amending section 17 of the Ordinance caters for the situation in which the applicants are placed.

I should mention that since this application was brought under section 16 (1) (g) of the Courts Act, 1971 (Act 372), the proper person against whom such order for maintenance can be made is the administrator of the estate. The employer of the deceased cannot be made to make any such payment except under the pensions scheme and the proper application should be made under the Ordinance and its amending Decree.

This application is misconceived and it is dismissed. No order for costs. 

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