In Re Cole (Decd.); Cudjoe v. Cole [1977] 2 GLR 305.

IN RE COLE (DECD.); CUDJOE v. COLE [1977] 2 GLR 305.

JUDGMENT OF ARCHER J.A.

STATUTORY REF.
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Archer J.A. delivered that judgment of the court. John Cole was a Sierra Leonian by nationality who worked with the Ghana Railways at Takoradi until he retired and later became a timber contractor. During his lifetime he had several wives according to customary law with some of whom he had many children.

In 1960, he became ill on account of a stroke and he remained a sick person until he died on 2 July 1967.

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Before his death, he had given instructions to a licensed letter-writer, Charles Moses Edwards, to Prepare his will which was executed by him on 21 November 1966. By this will, he appointed Lawrence Cudjoe, the present appellant, and one Dolly Cole Ashun as executor and executrix respectively.

On 1 November 1967, the present respondent, S. J. Cole, who claimed to be a nephew of the late John Cole (being the son of the deceased’s sister) entered a caveat. Subsequently an application for probate of the will was filed. In view of the caveat, it became necessary to prove the will in solemn form and accordingly pleadings were ordered. The appellant claimed to be a duly appointed executor under the will of the deceased whereas the respondent in his statement of defence averred, inter alia: that (1) the signature on the will was not that of the late John Cole; (2) that the late John Cole was so completely paralysed and incapable of speech that he could not have dictated instructions for his will and could not have held a pen to sign his name; (3) in the alternative there was undue influence exerted on the deceased by the deceased’s son-in-law, one J. E. Roman, whose close friend and confidant was C. W. Edwards who drafted the will; and (4) the said will was not properly attested.

The issues set down for trial were:

(i) Whether or not John Cole (deceased) did execute his last will;

(ii) Whether or not the said will was attested;

(iii) Whether or not the late John Cole was capable of executing his will when he so executed it;

(iv) Whether or not there was any undue influence from J. E. Roman in the execution of the said will by John Cole (deceased);

(v) Whether or not the plaintiff or the defendant has locus standi.

After hearing evidence from both parties, the learned trial judge, sitting at the High Court, Sekondi, declared the will invalid on the grounds that the deceased on account of his stroke did not have the mental and physical capacity to execute a will; and that the will was not properly attested and thirdly, that the will was prepared and executed under circumstances which gave rise to “some sort of suspicion” which the appellant had failed to remove.

When the hearing of the appeal commenced, we cut short the arguments relied on by the appellant’s learned counsel and we invited learned council for the respondent to justify the soundness and correctness of the judgment of the court below in view of the overwhelming evidence in favour of the validity of the will. Learned counsel for the respondent, who was not the counsel who appeared at the trial, rightly in our view confined himself to the argument that the will was not executed in accordance with section 9 of the Wills Act, 1837 (7 Will. 4 & 1 Vict., c. 26), and relied on the English decided case of In re Colling
(Decd.); Lawson v. von Winckler [1972] 3 All E.R. 729. The headnote reads:

“A few days before his death, the testator, then in hospital, made a will, and started to sign his name in the presence of two witnesses, J, a fellow patient, and Sister N. Before he had completed his name

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however Sister N was called away to attend to another patient, and the testator completed his signature in her absence; it was witnessed by J in his presence. When Sister N returned, the testator and J acknowledged their signatures to her, and she then signed. On the question whether the will had been duly executed in accordance with s. 9 of the Wills Act, 1837,”

Ungoed-Thomas J. held that (as stated in the headnote):

“The requirements of s 9 had not been complied with; it was essential that the testator should have signed the will or acknowledged his signature in the presence of both witnesses before either of them had attested and subscribed the document; that part of the testator’s name which had been subscribed before Sister N departed, as the completion of the signature clearly established, was neither the name itself nor was it some mark which was intended to represent the name; it was not therefore the name of the testator, but only that part of his name which did not constitute his signature, which had been signed in the presence of both witnesses.”

Looking at the facts of the case, one cannot legally quarrel with the decision of Ungoed-Thomas J. But are the facts on all fours with the facts in the present appeal? Certainly they are not and the decision in Re Colling is inapplicable in the present appeal.

Section 9 of the Wills Act, 1837 (7 Will. 4 & 1 Vict., c. 26), reads:

“And be it further enacted, that no will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned; (that is to say,) it shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction; and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe, the will in the presence of the testator, but no form of attestation shall be necessary.”

The facts in the present appeal are that after the testator had disclosed his wishes to Mr. Edwards, the licensed letter-writer, the will was drafted, typed and sent to him. The testator signed the will and subsequently invited Rev. Father Benard Wieggers to his house. The evidence of this Roman Catholic priest is so relevant and vital that he is quoted here in extenso without apology. This witness testified as follows:

“I am a Roman Catholic priest at Takoradi. I live in Takoradi. I knew one John Cole, now deceased, for about three years before his death. I usually used to go to his house at least once a mouth to administer holy communion; usually the day before the communion I used to visit him to verify whether he was all right and prepared to receive me the next day. He was then sick. During these visits particularly the day before the communion I used to talk to him and he used to talk to me too. The last time I administered the holy communion to the late Mr. Cole was about a week before his death.

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During the last visit he engaged in conversation with me, but I did not talk much as I realised he was very weak. As far as I remember till the last visit he was aware of what was going on. In fact I was surprised when I heard he was dead. Somewhere at the end of 1966 after I had returned from town I had an information; as a result of that I went to the premises of the late Mr. Cole. I entered the late Mr. Cole’s room. I met Mr. Edwards and the late Mr. Cole in the room. The late Mr. Cole asked me whether I would give my co-operation for his last will. I agreed. He showed me two copies of the will which had been signed by him already, and he asked me if I could put my signature at the place required for that. I did sign and added ‘S’ to the ‘h’ under the certificate. When I saw the will it had already been signed and he showed me his signature. I signed in presence of Mr. Cole and Mr. Edwards; after that Mr. Edwards also signed in my presence. A month or two later he brought a copy of the will to the Mission House. The copy has been in the safe at the Mission House.”

The other attesting witness was Mr. Edwards who also testified as follows:

“I am a licensed letter-writer and live at Takoradi. I knew one John Cole now deceased. I know when he died; it was on 2 July 1967. On 20 November 1966 I went to him to have a prayer with him. Later be asked me to bring him some papers; when the papers were produced he asked me to take down a draft of his will and testament; he told me all what he wanted to say and I took it in writing. The following day, i.e. Monday 21 November 1966, I typed out the draft in two copies, the original and duplicate. I sent both to him; I read out the draft to him and he approved of same. He said he would send for the Father to sign as a witness; he in fact did send for the Father, The Father came at about 10.30 a.m. the same day. The Father met me with the late Mr. Cole. When I read the will over to him and he approved of the contents the Father was not present, but the late Mr. Cole appended his signature to the will. Identification 1 and exhibit C are the documents I typed. I see the late Mr. Cole’s signature on both. When the Father came the late Mr. Cole gave the Reverend Minister the will and stated that was his signature, therefore, the Father must witness it; the Father agreed and witnessed it in my presence and in the presence of the late Mr. Cole. I see my signature on the two documents.”

There is no doubt that the formalities required by section 9 of the Wills Act, 1837, were complied with.
The mere fact that the testator had already signed his name before the Rev. Father Wieggers arrived made no difference. The testator acknowledged his signature before the two witnesses who in turn signed their respective names in the presence of the testator and in the presence of each other both present at the same time. Section 9 of the Wills Act, 1837, does not require any more legal rituals than these. It follows that so far as the legal formalities are concerned, the will of the late John Cole is perfectly valid.

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But that is not the end of the respondent’s grievance with the will. He maintained that the testator was so ill that he did not have the requisite mental and physical strength to make a will. This complaint relates to the testamentary capacity of the testator. Furthermore the respondent contended that the testator could not have signed the will because he was paralysed on the right side of his body, that is, his right leg and right hand were completely paralysed. There is no doubt that before the attesting witnesses signed, the testator’s signature was already on the document. Mr. Edwards who prepared the will testified that when he took the two copies of the will to the testator, he read over the will to the testator who approved of the contents and appended his signature. It must be pointed out at this stage that there was nothing legally fatal about this procedure. Indeed section 9 of the Wills Act, 1837, envisages the signing of a will by a testator in the absence of any witnesses and that is why the section goes further to provide that in such a case, the testator must acknowledge his signature in the presence of two witnesses. The testator is not required to recite any magical incantation in order to perfect an acknowledgement of his signature. Perhaps some of the earliest cases decided after the Wills Act, 1837, was enacted, illustrate the purport of the section more lucidly. For instance, in Ilott v. Genge (1842) 3 Curt. 160, the testator requested two persons, present at the same time, to sign a paper which had been so folded that the witnesses did not see any writing whatever on it and the testator did not tell the witnesses what was the nature of the paper.
After the testator’s death, the paper appeared to be his last will. Probate was refused because the testator did not acknowledge his signature in the presence of two witnesses. In any case, the witnesses did not see the testator’s signature on the paper at all. On the other hand, there is the case of Gaze v. Gaze (1843) 3
Curt. 451. There the testator produced a will, all in his own handwriting, to three persons. He had already signed his name at the end and requested the three persons to sign, This was held to be a sufficient acknowledgement. So also in Keigwin v. Keigwin (1843) 3 Curt. 607 two persons were invited by a testator who showed them a paper both of them, being present, observed the signature of the testator already affixed. Both of them signed as witnesses. This was held to be a valid execution. These three cases demonstrates how the Prerogative Court construed and applied section 9 of the Wills Act, 1837, when it came into force. They still represent the law up to the present time. Looking at the evidence of Father Wieggers and Mr. Edwards, it is clear that the late John Cole did produce the will and did acknowledge his signature in their presence. Father Wieggers was emphatic that he saw the signature of the testator already on the will before he and Mr. Edwards signed. Unfortunately, the learned trial judge reasoned as follows:

“When the Reverend Father Wieggers arrived the late Mr. Cole was alleged to have signed the will already, but he was uncertain whether the testator acknowledged his signature in the presence of the two witnesses. The Reverend Father admits he refused to swear to an affidavit to this effect. Why did he refuse, it may be asked? Mr.

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Edwards in his evidence in chief failed to state at what stage he did attest and subscribe the will. Furthermore, while the attestation clause on the original will, exhibit E, is incomplete, the one on the duplicate exhibit C was complete; the attestation clause, therefore was not perfect. Here again there is a great deal of doubt whether the will was properly attested particularly when the Reverend Father Wieggers had no previous knowledge of the late Mr. Cole’s signature. In view of the doubt as to the acknowledgement of the signature and while there is positive evidence the late Mr. Cole never signed the will in the presence of the two witnesses, the will was not properly attested: Re Groffman (Decd.) [1969] 2 All E.R. 108.”

With all due deference to the leaned trial judge, it can be said outright without performing an autopsy on the passage quoted, that his reasoning is untenable. In the first place section 9 of the Wills Act, 1837, in very unmistakable language states that “no form of attestation shall be necessary.” If there had been no attestation clause at all, the two attesting witnesses gave oral evidence to demonstrate that section 9 of the Act was complied with. It is therefore not understood why the learned trial judge chose to rely on imperfections in the attestation clause. It was on account of such possible, frailties in attestation clauses capable of generating legal confusion that perhaps compelled the legislators to enact that no form of attestation clause shall be necessary. Secondly, the oral evidence of both attesting witnesses points to the fact that the testator did acknowledge his signature in the presence of both of them. The doubt entertained by the learned trial judge was that the Reverend Wieggers had no previous knowledge of the testator’s signature. But was this necessary? Mr. Edwards testified that the testator himself signed the will. The learned trial judge found that the testator, if he did sign his will, then he was assisted in doing so. The question one may ask is whether there is anything legally wrong with a person being assisted in signing his name if his fingers are neither strong nor mobile enough to hold and manipulate a pen provided he accepts it as his signature. Father Wieggers testified that the testator showed him his signature on the day the will was executed, i.e. 21 November 1966. Both Father Wieggers and Mr. Edwards gave evidence on 14 February 1968 barely fifteen months afterwards and even if their memory was faulty it appears the court must presume that the signature was that of the testator see Gaze v. Gaze (supra) and also Wright v. Sanderson (1884) 9 P.D. 149 at p. 163, C.A. where Fry L.J. said:

“judges who have presided over the Court of Probate have long been accustomed to give great weight to the presumption of due execution arising from the regularity ex facie of the testamentary paper produced, where no suspicion of fraud has occurred. In so doing they have, in my opinion, acted rightly and wisely.”

In the present appeal, it has not been alleged that the signature of the testator was a forgery. Indeed, when respondent who had all along

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challenged the signature was asked in cross-examination whether he could produce any signature of the testator different from that on the will, his answer was “No”. The findings of the court below that the testator did not sign his will and that the formalities required by section 9 of the Wills Act, 1837, were not complied with are clearly not supported by the evidence.

The next point is whether the testator was so mentally ill and physically weak that he had no capacity to make a will. The law in this respect is well settled. In Barry v. Butlin (1838) 2 Moo.P.C. 480 at pp. 482-483, Parke B. delivering the opinion of that Judicial Committee said:

“The rules of law according to which cases of this nature are to be decided, do not admit of any dispute ... These rules are two; the first that the onus probandi lies in every case upon the party propounding a Will; and he must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable Testator.

The second is, that if a party writes or prepares a Will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true Will of the deceased.”

Barry v. Butlin (supra) was a decision of the Judicial Committee of the Privy Council but it appears that the same principle was laid down by the House of’ Lords in Fulton v. Andrew (1875) L.R. 7 H.L. 448 and also in Brown v. Fisher (1890) 63 L.T. 465. However the principle was clarified by Lindley L.J. in Tyrrell

  1. Painton [1894] P. 151 at p. 157, C.A. where he said:

“The rule in Barry v. Butlin, Fulton v. Andrew, and Brown v. Fisher is not, in my opinion, confined to the single case in which a will is prepared by or on the instructions of the person taking large benefits under it, but extends to all cases in which circumstances exist which excite the suspicion of the Court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contests of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the will.”

So far as the physical capacity of the testator was concerned, both parties were agreed that the testator suffered a stroke in 1960 and did not recover from it, that is he was never cured of it, until his death. The appellant and his witnesses maintained that the testator was paralysed on his left side and therefore could have signed the will with his right hand which was not affected by the stroke. The respondent and his witnesses on the

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other hand contended that the stroke had affected his right hand and right leg and as such the testator could not have signed the will with his right hand. A commissioner for oaths before whom the testator on 18 February 1966 swore an affidavit in connection with a court suit was emphatic that the testator came to his office with a walking stick and he appeared to be suffering from paralysis on the left side. His recollection was that the testator signed his name on the affidavit with his right hand unaided. The affidavit was tendered in evidence as exhibit D. The learned trial judge in judgment compared the signature on exhibit D which was made on 18 February 1966 with the signature on the will made on 21 November 1967 and drew an inference that if the testator did sign his will, exhibit E, then he was assisted in doing so. This finding, with respect, does not invalidate the will. Indeed section 9 of the Wills Act, 1837, provides that the will “shall be signed by the testator or by some other person in his presence and by his direction and such signature shall be made or acknowledged by the testator in the presence of two or more witnesses . . “Even if the late Mr. Cole was too ill to have signed his name, the law permitted him to direct somebody to sign for him in his presence. The court below did not point out who assisted him in signing the will and there was therefore no justification for rejecting his signature which he subsequently acknowledged to Father Wieggers and Mr. Edwards. Unfortunately, the court below relied on an extraneous piece of evidence, exhibit 1, to conclude that in 1966 the late Mr. Cole was very ill. Exhibit 1 was a letter written by Mr. J. E. Roman a son-in-law of the testator and addressed to the Sierra Leone High Commission in Accra recommending one of the testator’s children for a seaman’s or international passport to enable him to secure employment on a merchant ship. There is no evidence from the contents of exhibit 1 that Mr. Roman was writing this letter on behalf of the testator because he was too ill to write or sign his name. Exhibit 1 was a perfectly innocuous letter which did not detract from the appellant’s case and in fact did not strengthen the respondent’s case. Father Wieggers an independent witness, testified that for three years before his death, the testator received him, conversed with him and on each occasion the testator sat on the edge of his bed and shook hands with him, yet the respondent had the audacity to testify as follows:

“Before his death I had been visiting him since 1960 when he was sick. He was paralysed on the right hand and foot. I saw him about the middle of 1966, particularly about November-December 1966. He was so bad that the right hand was bony; the face was badly swollen and the mouth twisted. He could not speak properly; he spoke faintly and you could not hear what he was saying. He could not use his right hand. From my observation he had so degenerated in mind that he could not do anything sensibly.”

Then in re-examination he concluded:

“Q. By October 1966 what was his condition?

A. He was totally paralysed; he was unable to speak and could not eat on his own; he could not  use his right hand.”

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Emmanuel Kweku Cole, a son of the testator who was the subject-matter of exhibit 1, gave evidence to the effect on 3 January 1966 when his father gave Mr. Roman instructions to write exhibit 1, his father could not talk properly and could not use both hands. Justina Cole, a daughter of the testator who had been living in the testator’s house, testified that for six years the testator was ill and in 1966 her step-mother supported the father while she the daughter put food into his mouth. On the other hand, the stepmother Mrs. Nancy Cole said she never saw the daughter Justina assist the father during his illness and she alone looked after the sick man. There is no doubt that the learned trial judge had the opportunity of seeing all these witnesses and he was in a better position to assess the honesty and truthfulness of each witness. But it appears that although he had before him Father Wieggers’ evidence which supported the case for the proponents of the will, the learned trial judge treated his evidence with very little weight and discounted his evidence because the testator did not sign his name in his presence and moreover Father Wieggers had no previous knowledge of the testator’s signature before it was shown to him. As pointed out earlier, these cannot be legal arguments or grounds for rejecting the will. In view of the fact that some of the witnesses were interested in the estate of the deceased, the learned trial judge should have relied on the evidence of Father Wieggers to tilt the scales in favour of the appellant not because as a Roman Catholic priest he was a parogon of virtue and truth but for the simple reason that he was an independent witness, a complete stranger who had no interest in the testator’s estate. If Father Wieggers’ evidence is accepted then the only inference to be drawn is that on 21 November 1966, the testator had physical capacity to make his will, although he was seriously ill.

Nevertheless, that is not the end of the matter. The respondent’s case is that his uncle “had so degenerated in mind that he could not do anything sensibly.” The obvious meaning of this piece of evidence is that the paralysis which struck the testator, had affected his mind to such an extent that his intelligence had become defective, that is, short of insanity.

What are the criteria for determining mental capacity to make a will? Perhaps the illuminating judgment of Cockburn C.J. in Banks v. Good-fellow (1870) L.R. 5 Q.B. 549 at p. 564 may be quoted:

“The English law leaves everything to the unfettered discretion of the testator, on the assumption that, though in some instances, caprice, or passion, or the power of new ties, or artful contrivance, or sinister influence, may lead to the neglect of claims that ought to be attended to, yet, the instincts, affections, and common sentiments of mankind may be safely trusted to secure, on the whole, a better disposition of the property of the dead, and one more accurately adjusted to the requirements of each particular case, than could be obtained through a distribution prescribed by the stereotyped and inflexible rules of a general law.”

Then the learned Chief Justice continued at p. 565;

“It is obvious,... that to the due exercise of a power thus involving

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moral responsibility, the possession of the intellectual and moral faculties common to our nature should be insisted on as an indispensable condition. It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties . . .

. . . If the human instincts and affections, or the moral sense, become perverted by mental disease; if insane suspicion, or aversion, take the place of natural affection; if reason and judgment are lost, and the mind becomes a prey to insane delusions calculated to interfere with and disturbs its functions, and to lead to a testamentary disposition, due only to their baneful influence— in such a case it is obvious that the condition of the testamentary power fails, and that a will made under such circumstances ought not to stand.”

However, the learned Chief Justice drew a distinction at p. 566:

“It may be here not unimportant to advert to the law relating to unsoundness of mind arising from another cause-namely, from want of intelligence occasioned by defective organization, or by supervening physical infirmity or the decay of advancing age, as distinguished from mental derangement, such defect of intelligence being equally a cause of incapacity. In these cases it is admitted on all hands that though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains.”

In the present appeal, the question that must be answered is whether the late John Cole had a sound disposing mind in November 1966 notwithstanding his stroke. The evidence of the proponents of the will was that although he was partially paralysed, yet he could speak intelligibly. The only person who testified that the testator’s mind was affected was the respondent himself. None of his witnesses supported his allegation that the testator’s mind had degenerated. Indeed the respondent’s own witness Mr. Shitta, a court interpreter, who claimed to know the deceased very well and had been seeing the deceased one year before his death, confirmed the proponents’ version during his cross-examination:

“Q. During your visits to the old man you heard him speak.

A. That is so, but faintly.

Q. But you would hear and understand him.

A. That is correct.

Notwithstanding this piece of evidence which was favourable to the proponent’s case, the learned trial judge, in his own words, held:

“On the whole judging from the way Mr. Roman secured only his

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intimate friends and colleagues to have anything to do with the will, the way Mr. Roman and his children are to be benefited under the will, the way the wives, except the one so friendly with Mr. Roman, have been treated under the will and the fact that the testator had had a stroke for a period of more than six years before his death and the failure of those propounding to prove the will to call Dr. Amo or medical evidence from Axim Hospital when the testamentary capacity of the testator has been called in question, I cannot presume the testator had testamentary capacity and allow a will, which so unconsciously distributes the property of the testator amongst his numerous issue and the wives to stand.”

With the greatest respect, this conclusion of the learned trial judge is unconvincing. The law is that there should be sound disposing mind both at the time when the instructions for the will are given and when the will is executed, but if the will is shown to have been drawn in accordance with instructions given while the testator was of sound disposing mind, it is sufficient that when he executes it, he appreciates that he is being asked to execute as his will a document drawn in pursuance of those instructions though he is unable to follow all its provisions: see Perera v. Perera [1901] A.C. 354 at pp. 361-362, P.C., where Lord Macnaghten speaking for the Judicial Committee, said:

“In Parker v. Felgate ((1883) 8 P.D. 171) Sir James Hannen lays down the law thus: ‘If a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good will, if executed by the testator, is that he should be able to think thus far: “I gave my solicitor instructions to prepare a will making a certain disposition of my property; I have no doubt that be has given effect to my intention, and I accept the document which is put before me as carrying it out”.’ Their Lordships think that the ruling of Sir James Hannen is good law and good sense.”

In the present appeal, there is evidence that the testator gave Mr. Edwards his instructions as a licensed letter-writer and the fact that he was not a solicitor is immaterial. Mr. Edwards prepared a draft, typed it in two copies and sent them to the testator. Mr. Edwards read the contents to the testator, who understood all their provisions and signed the will. The next day the testator called Father Wieggers and told him that he had made a will and wanted his assistance. He produced the will with his signature on it and both Father Wieggers and Mr. Edwards signed as witnesses. In such a case, the law presumes that the testator was sane at the time when he gave the instructions for the will and when it was executed. However, as the testator’s sanity was questioned by the respondent, the onus lay on the appellant to prove that the testator had a sound disposing mind. From the evidence on record it appears he discharged that onus. None of his witnesses was cross-examined as to the testator’s sanity. Indeed there was no evidence of insanity before the court. To call medical

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evidence was not essential. The evidence on record was that the testator was taken to Axim to consult Dr. Amo and returned to Takoradi. The qualified registered nurse, Mr. Arku, who at the request of the respondent examined the late Cole on 2 May 1967, testified as follows:

“I saw him suffer from left inquinal hernia, also a valval disease of the heart, the pulse was irregular; he was constipated for four days and the temperature was 97°F. He had difficulty in breathing and general paralysis, i.e. the limbs were not moving normally; they could not be moved unless someone assisted him, all the limbs were in the same condition. I only concentrated on the hands. I talked to him and he answered my questions; because of the difficulty in breathing the speech was not normal. He was lying on his bed when I got there. I asked him why he had not been to a hospital and he explained he had been to Axim Hospital but he was declared untreatable. The relatives were not willing that I treat him so I left.”

Apart from the fact that this witness was not a qualified medical practitioner and the learned trial judge had upheld objections to questions relating to the opinions of this witness as to the deceased’s state of health, yet paradoxically, the learned trial judge in his judgment appears to have relied on this nurse’s evidence when in his judgment he said that the respondent’s version (that the paralysis affected Mr. Cole’s speech) was supported by the testimony of this nurse. If it is accepted that the relevant time for ascertaining the mental and physically capacity to make a will is the time the will was made, then it follows that the diagnosis of this qualified nurse cum unqualified medical practitioner made six months after the date of the execution is totally irrelevant. In any case Mr. Arku confirmed that even in May 1967 the testator could speak and answer questions. It follows that the presumption that the testator was of sound disposing mind in November 1966 remained unrebutted by the respondent and his witnesses.

Were the dispositions in the will so irrational as to suggest that the testator had no sound disposing mind?
As the respondent had alleged undue influence it would be better to deal with the alleged irrationality of the dispositions and the allegation of undue influence together. In Boyse v. Rossborough (1857) 6 H.L.Cas. 2 at p. 49, the Lord Chancellor stated the principle of law in such matters as follows:

“One point, however, is beyond dispute, and that is, that where once it has been proved that a will has been executed with due solemnities by a person of competent understanding, and apparently a free agent, the burden of proving that it was executed under undue influence, is on the party who alleges it.”

In the present appeal, it was the respondent who averred undue influence and the onus was on him to prove it. In his statement of defence, paragraph (10) the respondent pleaded in the alternative that Mr. J. E. Roman, a son-in-law of the testator, through his close confidant and friend

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Mr. C. M. Edwards who prepared the will and signed as a witness exerted undue influence on the late John Thomas Cole. Mr. J. E. Roman was no stranger to the late Cole. Mr. Roman was married to Cole’s daughter who predeceased the father. There are six children of that marriage. It was not in dispute at the trial, that Mr. Roman visited the testator regularly during his lifetime and Mr. Roman collected rents from houses owned by his father-in-law. There appears to be nothing strange about this relationship. What about Mr. Edwards? As a licensed letter-writer Mr. Edwards pitched his camp at the Takoradi Post Office to carry out his profession. He had been at the post office since 1949 but he met Mr. Roman about four or five years before this litigation commenced and they were good friends. There was evidence before the trial court that Mr. Edwards used to be a tenant of the late Cole; he paid rent for the premises until 1964 when the house was sold by Mr. Cole. There was no evidence that since 1964 Mr. Edwards had occupied any house belonging to Mr. Cole. Nevertheless the respondent in his evidence sought to establish a special relationship between the two when he said “Edwards and Roman are very good friends; Roman gave Edwards a room in one of my uncle’s houses; they have been moving along together every time. The language is not that of my uncle. The will was inspired by Mr. J. E. Roman.”

Apart from these 43 words which were uttered by the respondent to establish undue influence, no other witness said anything in support of this allegation. Yet the court below held as follows:

“From the overwhelming evidence on record I am of the opinion that the will was prepared and executed under circumstances which raise some sort of suspicion, but the plaintiff or plaintiffs have not been able to adduce any evidence which may remove the suspicion and satisfy this court that the late Mr. Cole knew and approved the contents of the alleged will. See Tyrrell v. Painton [1894] P. 151, C.A.”

There is no doubt that whatever unfounded suspicions were entertained by the respondent they were removed by the evidence of the appellant and his witnesses. What the respondent rather failed to prove was undue influence, the proof of which lay on him at the trial. Perhaps in this connection the case of Craig v. Lamoureux [1920] A.C. 349, P.C. may be cited. There, a husband, two days before the death of his wife and while she was seriously ill, was instrumental in having her will prepared and executed. Under the will, the husband was the sole beneficiary. The Supreme Court of Canada upset the will on the ground that the husband had failed to prove that there had been no undue influence. The Judicial Committee of the Privy Council allowed the husband’s appeal on the ground that the onus had been erroneously placed on the husband. The following extract from the judgment at pp. 356-357 is instructive:

“No doubt a principle such as that relied on by the majority of the learned judges in the Supreme Court of Canada is one which is very readily applied in cases of gifts inter vivos. But, as Lord Penzance

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pointed out in Parfitt v. Lawless (L.R. 2 P. & D. 462), it is otherwise in the case of wills: ... It may well be that in the case of a law agent, or of a stranger who is in a confidential position, the Courts will scan the evidence of independent volition closely, in order to be sure that there has been thorough understanding of consequences by the testator whose will has been prepared for him. But even in such an instance a will, which merely regulates succession after death, is very different from a gift inter vivos, which strips the donor of his property during his lifetime. And the Courts have in consequence never given to the principle to which the learned judges refer the sweeping application which they have made of it in the present case. There is no reason why a husband or a parent, on whose part it is natural that he should do so, may not put his claims before a wife or a child and ask for their recognition, provided the person making the will knows what is being done. The persuasion must of course stop short of coercion, and the testamentary disposition must be made with comprehension of what is being done.

... Undue influence, in order to render a will void, must be an influence which can justly be described by a person looking at the matter judicially to have caused the execution of a paper pretending to express a testator’s mind, but which really does not express his mind, but something else which he did not really mean. And the relationship of marriage is one where it is, generally speaking, impossible to ascertain how matters have stood in that regard.

It is also important in this connection to bear in mind what was laid down by Sir James Hannen in Wingrove v. Wingrove ((1881) 11 P.D. 81) and quoted with approval by Lord Macnaghten in delivering the judgment of this board in Baudains v. Richardson ( [1906] A.C. 169), that it is not sufficient to establish that a person has the power unduly to overbear the will of the testator. It must be shown that in the particular case the power was exercised, and that it was by means of the exercise of that power that
the will was obtained.”

If one applies the above principles and the test contained therein to the facts of this case, it is clear that the respondent failed to prove that Mr. Roman through Mr. Edwards exercised any “power unduly to overbear the will of the testator.”

The next point is whether an inference of undue influence can be drawn from the nature of the dispositions in the will. For the avoidance of any inadvertent omission or misquotation, the full text of the will is hereby produced:

“This is the Last Will and Testament of me JOHN COLE, of House No. 1/6, New John Sarbah Road, Takoradi, was formerly a Timber Merchant, providing for my wives and children.

I hereby revoke all wills and testamentary instruments heretofore by me made. I appoint LAWRENCE CUDJOE of Sekondi/Takoradi City Council, in the Western Region of Ghana, and DOLY COLE ASHUN of

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House No. 19/6, First Street, Sekondi, in the Western Region of Ghana to be the Executors and Executrix of this my will. I direct my Executors to pay my just debts and Funeral and Testamentary Expenses.

I give and bequeath to my dear wife NANCY COLE of House No. 1/6, New John Sarbah Road, Takoradi, and my two children JONATHAN COLE and VICTORIA COLE, now in Sierra Leone, my free legacy of House No. 1/6, New John Sarbah Road, Takoradi, including furniture, beds, chest-of-drawers, etc. etc. for the up-keep of children’s education in the Colleges in Sierra Leone.

2. I BEQUEATH to my two wives EFFUA ANNINSEWAH and EFFUA DARKWA and my sister JANE NEWLAND of Sierra Leone together with my sons, daughters and nephews, free legacy of my House No. 27A/5, Ahanta Road, Takoradi, under the following distributions:-

2 rooms for EFFUA ANNINSEWAH, 2 rooms for EFFUA DARKWA, 2 rooms for JANE NEWLAND, 1 room for my son NATHANIEL COLE, 1 room for Kojo MENSAH, 1 room for KOBINA, 1 room for HENRY CASELY COLE, 1 room for DAVID COLE, 1 room for THOMAS COLE, 1 room for ARABA SARAH , 1 room for DOLLY COLE ASHUN, 1 room for MARTIN COLE, 1 room for my nephew SUNNY FARMER, 1 room for nephew SAMUEL COLE, and 1 room for my grand-daughter GRACE COLE.

3. I BEQUEATH to my son-in-law MR J. E. ROMAN of House No. 59/5, Hayford Road, Takoradi, and all my grand-children, the free legacy of my House No. 59/11, Sekondi, for the purpose of up-keeping of my grand-children’s education respectively.

4. I APPOINT my son-in-law MR. J. E. ROMAN of House No. 59/5, Hayford Road, Takoradi, as my right-hand Administrator, the free legacy of my House No. 105, at KOJOKROM to undergo all the necessary repairs with the proceeds of house rent realised therefrom ten pounds (£10) for MRS. FLORENCE COLE and ten pounds (£10) for JUSTINA COLE, and the rest to be shared into two equal parts, one part for the up-keep of my grandchildren’s education and the other part for the payment of my debts of Income and Property Taxes.

5. I BEQUEATH to my nephew PADMORE, one tractor and one lorry and the remaining two tractors and lorry must be sold and the proceeds must be used in defraying Income and Property Taxes.

6. I BEQUEATH the following wearing apparels to my children as duly enumerated and pinned them with their names relatively.

7. I BEQUEATH the pecuniary legacies to my wives and children after my death, and I APPOINT my right-hand son-in-law MR. J. E. ROMAN of House No. 59/5, Hayford Road, Takoradi, to collect all my Promissory Notes or documents from my Solicitor and to demand from my debtors the respective amounts they owe me and to share the whole money into three equal parts, two-thirds for my wives and the remaining one part for my son-in-law MR. J. E. ROMAN.

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Witness my hand this 21st day of NOVEMBER, 1966.

(Testator to sign here) (Sgd.) John Cole. Signed by the above named Testator as... last will in the presence of us both, being present at the same time who in ... presence and in the presence of each other have hereunto subscribed our names as Witnesses.

I SIGNATURE B. Wieggers
WITNESSES ADDRESS Catholic Mission, Takoradi.
OCCUPATION Catholic Priest

II SIGNATURE C. M. Edwards
ADDRESS P.O. Box 0132, Takoradi
OCCUPATION LIC. Letter Writer No. 47380.
fee paid 10/6d. with copy.”

Mr. Edwards, who took the testator’s instructions, typed the will in two copies and witnessed the execution of the will, did not take any benefit under the will although he has been accused of being the conduit pipe through which the unholy water of undue influence was pumped into the mind, heart and soul of the testator. Mr. Roman, was not appointed an executor but he took house No. 59/5, Hayford Road, Takoradi, not as a sole beneficiary but as a joint beneficiary with all the grandchildren of the testator “for the purpose of up-keeping my grandchildren’s education respectively.” Mr. Roman was to collect all rents from house No. 105 at Kojokrom, to repair the house and to carry out certain duties with the rents realised. Furthermore, Mr. Roman was to pursue all the debtors of the testator and to share the moneys collected as to two-thirds to the wives and as to one-third to Mr. Roman. If it is conceded that during his lifetime the testator relied heavily on Mr. Roman not only for the running of his family affairs but also for the management of the houses of the testator, then what is said in the will is not an innovation but simply a continuation of the status quo before the death of the testator.

The respondent himself was given one room in house No.. 27A/5 although according to his evidence some children of the testator, namely, Isaac, Patrick, Emmanuel, John and James Cole were not mentioned in the will. There is no doubt that the testator had many children and if in his instructions to Mr. Edwards, he either forgot or did not mention them, why should the finger of suspicion be pointed at Mr. Roman or Mr. Edwards. Perhaps here is a case which enables one to remark that perhaps the testator had too many children, the names of all he failed to mention to Mr. Edwards. Another grievance was that from Justina Cole, a daughter of the testator who claimed that she was given only £10 although her child was a beneficiary under the will. It seems that if some of the beneficiaries are aggrieved the best course open to them is to have the will legally and judicially construed instead of putting their own interpretation on clauses in the will.

If one reads the whole will, it is clear that the testator made provision for his wives, children and grandchildren who have a greater moral claim

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to the testator’s estate. If it is true that some children have been left out for my own reasons then their course is to seek extra-judicial methods in drawing attention to their grievances. This will was executed in November 1966 when our present Wills Act, 1971 (Act 360), was not in force and therefore these disappointed children cannot apply to the court for a reasonable provision to be carved out of the estate for them under section 13 of the Wills Act, 1971 (Act 360). Should these omissions be relied upon to upset the will? Certainly not. The remedies of these children lie outside the court room. The court cannot rewrite the testator’s will and include these children as beneficiaries. This litigation was generated by the respondent himself who perhaps was over-confident in his expectation of being declared the customary successor in the event of the will was declared invalid. There is evidence that immediately after the death of the testator he began collected rents from the testator’s houses and even ventured to enter a caveat before any application for probate had been made by the named executor and executrix. His conduct in this matter can only be described as monstrous and that is why in allowing the appeal we had no hesitation in ordering that the costs of ¢150,000.00 awarded to the appellant should be paid by the respondent himself. Clearly this is not a case where the costs should be paid out of the estate.

One observation must be made. The preparation of wills in Ghana is not the monopoly of lawyers. Mr. Edwards, the licensed letter-writer who prepared the will, did not draft the will in legal phraseology but he was at liberty to prepare the will. In cross-examination it was suggested to him that a will was a legal document and should be prepared by a solicitor. The truth is that this suggestion does not represent the law in Ghana. Section 44 of the Legal Profession Act, 1960 (Act 32), provides:

“No other person than a lawyer shall either directly or indirectly for or in expectation of any fee, gain, or reward draw or prepare any legal document; and any person contravening this section shall be liable on summary conviction to a find of [¢100].”

Then section 56 defines “legal document” to mean:

“any document (other than a will) conferring, transferring, limiting, charging, or extinguishing, or purporting to confer, transfer, limit, charge, or extinguish any right, title, or interest in property, movable or immovable, or any document (including a letter) indicating that legal proceedings may be brought against the person to whom it is addressed or any other person.”

It follows that for purposes of the Legal Profession Act, 1960 (Act 32), a will is not a legal document and a non-lawyer is at liberty to prepare one for himself or for another upon request.

In conclusion, it must be emphasised that the appellant succeeded in proving that prima facie, the will and the circumstances surrounding its execution were in order. When the onus shifted to the respondent to

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substantiate the charges of improper execution, mental or physical incapacity and undue influence, he failed to discharge that onus: see Johnson v. Maja (1951) 13 W.A.C.A. 290.

For the above reasons, the appeal was allowed.

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