In Re Duncan (Decd); Duncan v. Duncan [1982-83] GLR 384.

IN RE DUNCAN (DECD); DUNCAN v. DUNCAN [1982-83] GLR 384

HIGH COURT, ACCRA

CECILIA KORANTENG-ADDOW J.

STATUTORY REF.

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

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Cecilia Koranteng-Addow J. The plaintiff’s claim is that she is the proper person to be granted letters of administration with will annexed in respect of the will of the late Mrs. Mary Dede Obaamra Duncan. The defendant challenges the validity of the will on the ground that it was not duly executed. The main issues which fall to be decided therefore are whether the will is valid and whether or not administration cum testamento annexo should be granted to the plaintiff.

The plaintiff is the daughter of the testatrix; the defendant is the brother of the plaintiff of the full blood.

The will which is being contested is dated 18 December 1975; and it was drawn up by Mr. Daniel A. Boye, a legal practitioner. No cause is shown in the writ or statement of claim why the plaintiff should be granted letters of administration with the will annexed. The indorsement on the writ merely reads:

“The plaintiff’s claim is that she is the proper person to be granted letters of administration with will annexed, of the will of the late Mrs. Mary Dede Obaamra Duncan—(deceased).”

The statement of claim which is to give support to the writ of summons reads:

    1. “The plaintiff is the daughter of Mrs. Dede Obaamra Duncan (deceased) late of Accra who died on 23 December 1975.
    2. The plaintiff’s late mother during her life made a will per D. A. Boye, barrister-at-law of Accra, revoking a previous one made for her by Mr. A. Q. A. Acheampong of Joy Chambers, Accra and had the same duly deposited at the registry of this honourable court.
    3. The plaintiff’s late mother was mentally alert and possessed a disposing mind at the time of making her last will.
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    1. In the said will Mr. W. Sackeyfio and Mr. Nii Ankrah both of Accra were appointed executors.
    2. The plaintiff instructed her solicitor who on 21 December 1976 [wrote] to the executors to take probate but they have both renounced probate.”

The plaintiff’s evidence in support of her claim was equally short and advanced nothing to enhance her claim. So far as it is relevant to determine the main issue, her evidence was that her mother was in good physical and mental condition up to the time she died and that she possessed the full capacity to make the will in question. Her evidence did not disclose her cause of action; she said she took the action because even though her mother told her she made a will, the family refused to apply to have the will read by the registrar, and her application by motion for letters of administration with the will annexed was dismissed.

The defendant denied the averments contained in the statement of claim and put the plaintiff to strict proof in respect of paragraphs 2 to 5. The defendant averred that the testatrix was 85 years old on the date she made the alleged will and that she was very sick and senile. He further averred that the will did not comply with the requirement of the law.

The plaintiff, had the burden to establish that the will was executed in compliance with the law. Since the validity of the will is challenged, the plaintiff must prove it in solemn form; she must propound it. To do this she led evidence through Mr. Boye, who prepared the will, and her son who claimed to be present when the will was executed, to establish that it was duly executed. To counter this the defendant called Dr. Neequaye, the doctor who looked after and treated the testatrix in her last days; Okanta Ankrah, one of the attesting witnesses, and an elder sister of the parties, Diana Duncan, who was also present at the execution. From the evidence of these witnesses I recount here below he circumstances leading to the execution of the will.

The deceased, Mary Dede Obaamra Duncan, was an old lady of about 85 years at the time of her death on 23 December 1975. From the devises made in her will she was a woman with a fairly considerable real estate. In February 1975, Mr. Boye was introduced to her by the defendant as a legal practitioner, and the deceased engaged his services to manage some of the estate for her. The work consisted in the collection of rent and the prosecution and defence of matters connected with the tenancies in respect of the properties. But Mr. Boye was not a stranger to the deceased, his uncle had married one of the daughters of the deceased in the early 1930s, so he was related by marriage to the family. Therefore it was not surprising that when the 

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deceased requested her son, the defendant, to find her a lawyer, the defendant went to Mr. Boye.

About four to eight weeks previous to 18 December 1975, the deceased requested lawyer Boye to make a will for her. Mr. Boye said that the old lady instructed him to withdraw a will which had been drawn up on her instructions previously by Mr. A. Q. A. Acheampong, and had been deposited at the High Court.

According to Mr. Boye, he wrote to the court and withdrew this will and used it as a guide to prepare another will according to the instructions of the testatrix. He said that the only change he effected in the Acheampong will was the devise to Kailey Coleman, a granddaughter of the deceased. The latter had insulted the old lady by calling her a witch, so the old lady instructed that she should not benefit under the will. The defendant challenged the averment that this will was substituted for the Acheampong will.

In the circumstances of this case it would have been prudent to tender the Acheampong will. Since the defendant contends that the testatrix did not have the mental capacity to give the detailed instructions contained in the will, and considering also that it is Mr. Boye’s evidence that the instruction was only to change a disposition in respect of one beneficiary under a former will, it behoved the plaintiff to tender the former will to provide the court with the material with which to assess the worth of Mr. Boye’s evidence. If that will is misplaced or lost, but there is no such evidence, then Mr. Acheampong who is alleged to have prepared the will could have been called. This will makes very generous bequests and devises to the plaintiff and her children, yet the plaintiff swore that she did not know the contents of it nor that she is a beneficiary under the will. If that Acheampong will had been produced, it would have helped to clear the suspicion which is cast on the plaintiff with regard to the part she played in the drawing up of this will.

Reverting to the circumstances leading to the making of the will, Mr. Boye took a will to the deceased to be signed on 17 December 1975. He had asked the old lady to provide witnesses, and before these witnesses the old lady executed the will after he had read and interpreted the contents to her. After the witnesses attested, Mr. Boye said he discovered that one of them was either a beneficiary or an executor, he could not remember which, so he told the old lady he would have to get her another witness and that he would re-type the will. On the next day, Mr. Boye brought another will. Two witnesses were provided,

Moses Okanta Ankrah and one Nelson. According to Mr Boye he went to the old lady’s bedroom where he read and interpreted the will to the testatrix while the witnesses waited on the verandah outside the room. Then he called in the witnesses and they 

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attested the will. He said the old lady had good mental faculties to make the will.

Mr. Boye was supported in his evidence by Akwei Coleman, the son of the plaintiff. He is a very loquacious young man of 27 years of age. He tried his best to appear clever and smart in his answers to questions. He anticipated every question before it left the lips of his examiner, whether the plaintiff’s or the defendant’s while obviously trying with great effort not to commit himself or say anything which might compromise his mother’s case in any way. He was even prepared to condemn himself if only it would lend a semblance of credibility to his evidence. He accused himself of malingering and proffered the information that he was a peeping Tom. All this was to support and lend some semblance of credibility to his evidence that on the day when the will was executed and when he was supposed to be at work, he dodged work and stayed at home with his grandmother. He said that while the will was being read, even though he alleged Mr. Boye had asked for privacy and requested him to leave the bedroom where the old lady was, he left the room but stayed near the door and eavesdropped. Akwei Coleman’s account of the incidents of 17 and 18 December 1975 diverges from lawyer Boye’s and that of the witnesses who were actually present. In fact, lawyer Boye did not mention him at all as being present on any of the two occasions.

Coleman testified that on 17 December 1975 Mr. Boye came to the house with Okanta Ankrah and another whom he did not know. After they left, he inquired from the deceased whether the will had been executed. He said the old lady told him that one of the attesting witnesses did not turn up. On the next day, lawyer Boye came to the house with Jacob Nii Ankrah, Okanta Ankrah and Mr. Nelson and they all went to the deceased’s bedroom. He said the old lady asked him to stay and so he stayed. But during the execution, Mr. Boye asked him to leave because he wanted privacy, so he left but he remained at the door and watched everything that took place in the room. He said the will was read and that he even heard some of the contents, and that both the attesting witnesses were present when it was read. After the will was read, the old lady thumbprinted at the end of the sheet. The will which was tendered, however, had the thumbprint in the middle of the third page at the right hand column. Whereas Mr. Boye said the attesting witnesses waited outside while he read and interpreted the will to the old lady, Coleman maintained they were all in the room all the time. While Mr. Boye said Diana Duncan, the elder sister of the plaintiff, was not in the room that day, Coleman said Diana was there but she left with some resistance when Mr. Boye asked her to leave. While Mr. Boye said he saw the plaintiff on the verandah in front of the old lady’s room, and Coleman said his mother 

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was going up and down all the time, the plaintiff denied she was anywhere near the room that day and even denied she knew the will was executed.

According to Coleman when he and Diana had left the room, the old lady asked Mr. Boye whether he had done what she asked him to do and if so, then to read it to her. He said that after that conversation, the witnesses appended their signatures. He said that it was after that, that the old lady put her mark, shook hands with the people and thanked them for the services after which, they departed. This, in the main, is the story on the side of the plaintiff. I find Coleman an incredible witness.

Diana Duncan, giving evidence on the defendant’s side, said that when her mother fell ill, she went to live in the house in November 1975. She called her usual doctor, Dr. Neequaye, to see the old lady when her condition became very poor. With regard to the day of execution of the will, this is her account of it: her mother was sleeping on a mattress on the floor in the bedroom and she was staying by her when the plaintiff came and announced Mr. Boye. The plaintiff told her that lawyer Boye wanted to have some discussion with the old lady, so she (Diana) and the others in the room should leave. Diana was with another sister called Lucy and other relatives. All the others left, but Diana said she refused to leave and remained in the room. Diana was sitting on the mattress and the old lady was propped up against her.

Lawyer Boye himself asked Diana to leave so that he could talk to the old lady privately, but Diana refused to leave. Lawyer Boye went and stood at the window for some time. Then suddenly, he said “Ah well.” He then opened his brief case and took out a document and read out the contents. All the time, she said, her mother’s eyes remained closed, she did not react in any way to what was read to her. She remained still with eyes closed. The lawyer drew a stool near the mattress and put the paper on it, he took the old lady’s hand, rubbed the marking ink and pressed the thumb on the document. He thumbprinted two documents. When the old lady still did not react to what was happening, Diana asked the lawyer whether he thought what he did was proper. She remonstrated against his conduct, and the lawyer left. When she looked at the door as the lawyer went through it, her eyes met her sister’s, i.e. the plaintiff’s; she was standing at the door on the verandah.

The evidence of Okanta Ankrah, one of the attesting witnesses and a very impressive witness is that, some days prior to 18 December he was informed by the plaintiff that the old lady wanted to see him so he went to the house on 18 December. He was asked to wait on the verandah outside the bedroom of the old lady with Mr. Nelson, the other witness. While they were waiting there Mr. Boye brought a 

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document to them and told them that the old lady asked them kindly to append their signatures to it as witnesses to execution, which they did. The document already bore a thumbprint. The witness said he thought it was an indenture; he did not know it was a will. After they signed it the lawyer returned with it to the bedroom.

Soon after, Okanta said he heard somebody shouting at another in the old lady’s room. Being a relative of the old lady, Okanta rushed into the room and found the old lady in a very bad condition. He saw Diana for the first time that day in the room with the old lady propped up against her. In his own words, the old lady seemed to him “to be in a coma.” He inquired from Diana what had happened and she told him what had happened. By then the plaintiff and lawyer Boye were going down the stairs. Okanta rushed downstairs after them and told them that the two of them had induced him to sign a document which he would not have signed if he knew what it really was. He said he told them that if he was ever called anywhere to testify about the document, they should not rely on him. He said he told them that having seen the state in which the old lady was he felt that she was in no fit condition to make a will. Because of that, he said he told them that they should not count on him as a witness of the transaction. The transaction took place on Thursday, and the old lady died on the following Tuesday.

After the old lady’s death the plaintiff went to see Okanta with a lawyer, Mr. Bob Anane. This was about the time the plaintiff applied for letters of administration with will annexed. The plaintiff told Okanta that the will had been read in the High Court, and that he was required to swear to the oath of attestation. He said he refused. He said he challenged the plaintiff to get lawyer Boye who prepared the will to make the application on her behalf. The plaintiff pleaded with him to help her on a promise that she would also give him money and that the Amms Hotel building had been devised to her son. Okanta said he refused the offer and did not fall prey to the gold and silver dangled before his eyes. Okanta is related to the parties on the patrilineal side; they are distant cousins.

Dr. Neequaye gave evidence about the condition of the old lady. He is a medical practitioner with 22 years of experience; he is attached to the Adabraka Polyclinic. For about six years prior to her death, the deceased was the patient of Dr. Neequaye, but the doctor had known her since childhood. He said he attended her and looked after her until she died. He tendered her hospital cards for the period between August 1974 and December 1975. The cards showed that in October 1975, her condition deteriorated.

About a month before she died, she could not go to the hospital any more, so he went home to attend to her. On 13 December 1975, he observed that she had 

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changed for the worse. The notes he made on that day read: “called to see her, changed completely, signs of senility started two weeks after last visit. Does not want to eat or drink. Does not want to live, etc.; something in chest. Seen by Dr. Bannerman.” Her condition deteriorated rapidly after the doctor’s visit until she died on 23 December 1975.

I have no hesitation in preferring the case of the defendant to the plaintiff’s. With regard to the circumstances surrounding the execution of the will, the plaintiff did not appear to me to be a witness of truth; she did not impress me as an honest witness. From the beginning to the end, she tried hard to show that she knew nothing about the execution nor of the contents of the will. She tried to play the part of the innocent party. I think it is due to this pretence that she made no mention of the basis of her claim for this application for letters of administration with will annexed. She is a beneficiary under the will, and her children have been granted very generous devises and bequests under the will, but she pretended not to know of this. She positively stated that the will has not been read to her and she did not know its contents.

But the will which the court official tendered was in an open envelope. The seal had been broken, and at the back of the envelope is indorsed the following certificate which reads: “I certify that the contents of this will have been read to Beatrice Abatafa Duncan, daughter of the deceased on 27 July 1976. “This indorsement is signed by Mr. Engmann, who was then the registrar of the High Court. This belies the plaintiff’s testimony. The plaintiff did her best to cover up any incident which would connect her in any way with the making of this will. In spite of lawyer Boye’s evidence (the evidence of her star witness) that she was in the house and actually on the verandah on 18 December, she denied knowledge of any occasion when the lawyer came to the house with a will for her mother to execute. She disclosed the names of the executors appointed by the testator in the will; she stated confidently that the will was made by lawyer Boye, yet she denied everything else about it. When the inconsistencies in her story were pointed out to her under cross-examination, she claimed she got this information from the court and from lawyer Bob Anane. This is a witness whose credit is greatly impugned. Her evidence that her mother was fit and agile and of clear mind up to the last minute she died cannot be believed.

Coleman’s evidence was undoubtedly meant to corroborate the lawyer’s evidence. This young man is a beneficiary who stands to gain under the will. He is a person who was prepared to lie — and brazenly — to protect his interest. He is a great liar and he has no qualms about it. Throughout the whole of the trial, not one witness said he was present at the time the will was executed. His own mother could 

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not support his evidence on that score. His evidence of the execution of the will cannot be relied upon and I reject it. Pitched against the evidence presented on the same side his evidence sounds improbable.

What then is left of the plaintiff’s case is Mr. Boye’s evidence. His evidence has to be considered with that of the doctor, Diana and Okanta. The doctor is a very independent witness, and so is Okanta. None of them had anything to gain or lose one way or the other. On 13 December when the doctor paid his sick call on the deceased and recorded the history in exhibit 3, there was no dispute about the deceased’s condition, so that record is not affected by any bias or prejudices. Dr. Neequaye did not know at the time that he would be called upon to testify or that there would be a case calling for an inquiry into the mental and physical conditions of the old lady. He could therefore have had no reason to distort his findings. I prefer his evidence on the condition of the old lady to Mr. Boye’s. The condition in which he found the old lady on 13 December was that she was steadily deteriorating and this continued until she died on 23 December. Therefore Mr. Boye’s evidence that the old lady was physically and mentally sound on 18 December is not probably true. The evidence of the doctor, Diana and Okanta far outweigh Mr. Boye’s on the condition of the old lady about the time the will was executed. On the execution itself, on the face of the very cogent and strong evidence of Okanta, I cannot rely on Mr. Boye’s evidence as representing the truth. I got the impression, very clear impression, that he told half-truths. I think his evidence on the execution of the will too is inaccurate.

Mr Okanta Ankrah was a very impressive witness. He gave a very detailed and vivid account of the condition of the testatrix. I believe and accept his evidence that from the moment he discovered that he had been used to attest a will which could not have been appreciated nor understood by the testatrix, he protested against the conduct of the lawyer and challenged him to call him as a witness to prove the will in court. Very wisely, the lawyer did not take the challenge, the plaintiff would have been left without a witness to establish the execution.

Circumstances under which letters of administration with will annexed will be granted are where the will appoints no executor, or where the executor appointed in the will predeceases the testator or dies before the administration is carried out after the death of the testator, or where the executor has renounced, or refused to act or where the appointment is void for uncertainty: see Triswam and Cootes (21st ed.) p. 145.

The plaintiff in this case averred and testified that Sackeyfio and Jacob Nee Ankrah were appointed executors. The will also is eloquent testimony of this fact. It was averred that 

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they renounced probate and this was denied, but nothing further was done to established that this is a situation in which letters of administration with will annexed should issue. Counsel for the plaintiff in his address filed in court attached as exhibits, copies of letters exchanged between him and one of the executors. The purpose of those letters no doubt is to tender evidence by the back door to resolve a contested issue. This issue is whether or not the plaintiff’s solicitor wrote to the executors to take probate and they both renounced probate. It was set down in the summons for directions. Counsel cannot be unaware of the rules of procedure in tendering evidence. Counsel cannot tender evidence for his client, and certainly counsel cannot tender evidence during his address. I am confident that counsel is not ignorant of the procedure, so he must have intended to steal a march on the opponent. All the annexures attached to the address have therefore been disregarded in my appraisal of the evidence. On the evidence before the court, the plaintiff has not shown the basis of her claim for the grant. In this matter the plaintiff has two hurdles to go over: It is incumbent on her to show her locus standi, and since she is seeking letters of administration with will annexed, she ought to reveal why she, and not the executors, is seeking power from the court to take up the administration. In both of these matters she has failed.

The requirements for obtaining probate are the same as those for letters of administration with will annexed. Therefore where the validity of the will is challenged in an application for letters of administration with will annexed, a plaintiff must prove the will in the same was as he would in an application for probate. The onus is on the plaintiff to prove positively that the will was duly executed. In In re Kotei (Decd.); Kotei v. Ollennu [1975] 2 G.L.R. 107 at p. 110, Abban J. stated:

“It is the fundamental requirement of the law relating to wills that the person propounding the will must satisfy the court that the testator was of sound and disposing mind and memory, and had full knowledge and appreciation of the contents of the will. The other equally important requirement is that the court must be satisfied that the will was duly executed.”

The onus of establishing these requirements lies on the person propounding the will. The will to be valid, must comply with the requirement of sections 1 and 2 of the Wills Act, 1971 (Act 360). The testator must have the capacity to make the will, the will must be in writing and signed by the testator or some other person at his direction, and the signature shall be acknowledged in the presence of two or more witnesses present at the time, and the witness shall attest and sign the will in the presence of the testator. The will in this 

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case was tendered at the prompting of the court. It is typed on an indenture form. On the face, it is properly executed. It bears the thumbprint of the testatrix, it bears an interpretation clause showing that the contents had been interpreted to the testatrix before affixing her thumbprint; there is an attestation clause showing that the testatrix thumbprinted it in the presence of the two attesting witnesses and they also subscribed their names as attesting witnesses in the presence of each other. Since the will appears ex facie to satisfy the formalities of due execution, under normal circumstances the maxim omnia praesumuntur rite esse acta would apply. The will will be presumed to have been properly executed and attested, and probate in common form would be granted.

But where, as in this case the validity of the will is challenged the will must be proved in solemn form. There is the need therefore on the part of the plaintiff to establish affirmatively that it was duly executed.

There is the need to lead evidence other than the mere production of the disputed will. A witness who was present and saw the execution must be called. Such a witness is more often than not one of the attesting witnesses. It is when that burden has been discharged that in my view the burden of establishing non-compliance shifts to the defendant.

In her endeavour to prove due execution, the plaintiff in this instant case relied on the evidence of the solicitor who prepared the will and that of her own son, Coleman. She did what the plaintiff did in the analogous case of Mackay v. Rawlinson (1919) 35 T.L.R. 223. In that matter, in an undefended probate action, the court allowed the execution of the will to be proved by the solicitor who prepared the will and was present at its execution. Williams on Executors and Administrators (4th ed.) at p. 80, commenting on this case states that the judge accepted the statement of counsel that it was not essential to call an attesting witness, and he was not referred to authorities on the subject. Mr. Jonathan Arthur, for the defendant contended, that it was a sine qua non in such circumstances to call and attesting witness. I do not think that contention is accurate. There must not be a hallmark on the type of witness to call. Attesting witnesses are usually called because normally they are the only persons present with the testator at the time of execution. In this country where there are still many illiterates there must of necessity be other persons present and solicitors are usually present with the attesting witnesses to assist the testator in some ways.

The evidence of the attesting witness who gave evidence on behalf of the defendant shows that the will was not duly executed. This contrary evidence was not rebutted by the testimony of the solicitor who prepared the will, nor by Coleman who says he eavesdropped at 

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the time of the execution. And no circumstances have been shown why Okanta is to be discredited. On the contrary, Okanta’s evidence corroborated by the evidence of Diana, throws great suspicion on the proper execution of the will. On this point the balance of the evidence is clearly in favour of the defendant. It was therefore left to the plaintiff to remove that suspicion.

Mr. Jonathan Arthur relying on Barry v. Butlin (1890) 2 Moo. P.C. 480, submitted that the onus was on the plaintiff to remove this suspicion. Barry v. Butlin (supra) is fully discussed in Tyrrell v. Painton [1894] P. 151 at pp. 156-157, C.A. Both cases were referred to and relied upon in In re Cole (Decd.); Codjoe v. Cole [1977] 2 G.L.R. 305, C.A. The rules laid down and applied in these cases are that in cases like the present, i.e. where a will is prepared in circumstances which excite the suspicion of the court, the onus probandi lies on the party propounding the will, and that he must prove affirmatively that the testator knew and approved of the contents of the document. In Tyrrell v. Painton (supra) at p. 157, C.A. Lindley L.J. stated the rule in the following words:

“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 contents 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.”

The defendant in this case does not allege fraud, nor undue influence. He simply alleges that the will was not properly executed because the testatrix was not in a position to appreciate what she was made to thumbprint, and the attesting witnesses did not subscribe in the presence of the testatrix nor did the testatrix thumbprint or acknowledge her thumbprint in their presence.

The evidence of the plaintiff, the solicitor and the eavesdropper, Coleman, if credited, could remove this suspicion. Their evidence must therefore be examined and pitched against that on the side of the defendant. It is not certain from Mr. Boye’s evidence when he received instructions to make the will but the doctor’s evidence supported by the hospital records is certain that by 13 December the deceased had shown symptoms of senility. This had began in October 

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so it is possible that the commencement of this mental defect must have coincided with the time the instructions were given. However, Mr. Boye says her mental condition was good when she gave him her instructions and I am prepared to give him the benefit of the doubt. When I come to the evidence of the condition of the mind of the testatrix on the day of the execution of the will, however, I find that the evidence of the defendant’s witnesses that the testatrix was not herself far outweighs that of the plaintiff and her witnesses. The evidence of the doctor who saw her on 18 December, i.e. ten days before her death, and that of Diana and Okanta convinces me that the testatrix was senile. It was suggested to the doctor that it was possible for people with such mental conditions to improve. But the doctor was emphatic that this patient’s condition deteriorated steadily until she died on 23 December 1975. In the condition in which the doctor’s evidence shows she was on 18 December, the testatrix could not in my view have appreciated what the solicitor made her thumbprint. Where the capacity of a testator is doubtful at the time of the execution, there must be proof of instruction, or of reading over, or evidence of some kind which shows that he knew and approved of the contents of the will: see Barry v. Butlin (supra) where Parke B. stated that the party propounding the will must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator. The evidence on the side of the defendant, which I accept, satisfies me that the testatrix in this case was not in a condition to understand and appreciate the document nor its contents. She could not therefore have approved of the contents. The will which counsel alleged contained the instructions which the testatrix gave him was not tendered. Considering his evidence on the execution of the will, which is palpably incorrect, I am reluctant to accept his evidence that this will contained the exact instructions given him by the testator.

The next requirement the plaintiff must clear is that the will was properly attested. The evidence on this aspect shows positively that the rules of due execution were infringed. A testator must have capacity to execute the will and he must do so before at least two witnesses present at the same time, or that the signature of the testator or his mark should be acknowledged before them. The evidence which I find reliable, and which I accept, is that of Diana’s and Okanta’s. Okanta one of the attesting witnesses, did not corroborate Mr. Boye’s evidence that he was present when the deceased thumbprinted the will. Okanta was emphatic that he was not in the room when the testatrix put her thumbprint. He said he saw a thumbprint on the document when Mr. Boye brought it to him to sign on the verandah. He said Nelson, the other attesting witness, also signed under the 

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same circumstances. Both of them had been invited to the house, but they were asked by the plaintiff to wait on the verandah and they did. Both of them did not even see the testatrix before they subscribed their signatures. The will, exhibit A, was not properly executed. It cannot therefore be admitted to probate, and letters of administration with will annexed cannot be granted in favour of the plaintiff. The claim of the plaintiff is dismissed. Whatever costs should be awarded should be borne by the estate. However, since counsel for the defendant does not press for costs, I would make no order as to costs.

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