Quaye & Ors. v. Quarcoo & Anor. [1991] 2 GLR 437.

HIGH COURT, ACCRA

AMPIAH JA

Wills Act, 1971 (Act 360), s. 13(1)

Ampiah J. In 1955 the late Nelson Afosah Mensah, known also as Nelson Afosah Mensah-Akman, had a relationship with the plaintiff. They had an issue of that relationship. The relationship continued with more issues being born until about January 1976 when the relationship broke down or became severed.

The second, third and fourth plaintiffs were the surviving issues of the said relationship, the first issue having died earlier.

In 1960 the late Nelson Afosah Mensah-Akman married the

first defendant customarily and had three issues with her before his death. On the date of his death, the first defendant was still married to him.

The fifth plaintiff is a child of the late Nelson Afosah Mensah-Akman by another woman and the second defendant is also a daughter of the deceased by another woman. It is said that the deceased had five wives in his lifetime. The first and second defendants are the executrices of and beneficiaries under the estate of the late Nelson Afosah Mensah-Akman.

On 4 October 1979 the late Nelson Afosah Mensah-Akman prepared a document which is alleged to be his will. He died on 18 March 1983 and probate of this document was granted on 3 May 1983 to the defendants. Apparently, no provisions had been made in the said document for the plaintiffs. The plaintiffs have taken this action claiming:

“(i) A declaration that the paper writing produced by the defendants described and alleged to be a holograph will of the late Nelson Afosah Mensah-Akman is null and void and of no legal effect.

(ii) A declaration nullifying the probate granted to the defendants on or about 15 September 1983.

(iii) In the alternative, a declaration that the so-called holograph will having offended the spirit and letter of the fundamental and enacted laws of the land is not valid.

(iv) An order restraining the defendants from the administration of the estate of the late Mensah-Akman.

(v) An order making adequate provisions from the estate of the deceased for the plaintiffs.”

At the close of pleadings, the following issues were agreed upon and set down for determination:

“(a) Whether or not the paper writing produced by the defendants alleged to be a holograph will of the late Nelson Afosah Mensah-Akman is valid.

(b) Whether or not the probate granted to the defendants on or about 15 September 1983 was irregular and of no legal effect.

(c) Whether or not the plaintiffs are entitled to a declaration nullifying the said grant of probate.

(d) Whether or not the plaintiffs are entitled to an order restraining the defendants from administering the estate of the late Mensah-Akman.

(e) Whether or not the plaintiffs are entitled to an order making 

adequate provisions for them from the estate of the deceased for the plaintiffs.”

It is the claim of the first plaintiff that she was customarily married to the late Nelson Afosah Mensah-Akman in 1955 and that up to the date of his death, she was still married to him. Her claim is two-pronged. If she succeeds in her claim as a widow of the late Mensah-Akman, then should the will fail, she would under the Intestate Succession Law, 1985 (PNDCL 111) be entitled to an interest under the estate of her late husband and, if the will should succeed, she would still be entitled to a reasonable provision for herself from the estate if she had not reasonably been provided for. Provided the other plaintiffs are under eighteen years of age, they would, should the will succeed, be entitled to a reasonable provision under the estate if they have not already been provided for under the will. Of course if the will should fail, they would be entitled to benefit under their father’s estate both under customary law and under the provisions of PNDCL 111.

It is necessary therefore firstly, to determine the validity or otherwise of the document purporting to be the will of the late Nelson Afosah Mensah-Akman. As stated before, the late Mensah-Akman died on 18 March 1983 and probate was granted of this document on 18 May 1983. The fact that probate has been granted in common form does not preclude any person entitled to any interest in the testator’s estate from requiring that the will be proved in solemn form. The onus is always on the one who proposes a will to establish that the will is valid. In this case the defendants assume that burden. The first defendant gave evidence and called in support two witnesses who happened to be the attesting witnesses. Their evidence was not seriously challenged. They explained how the will came to be made. I have no cause to doubt their credibility. In paragraph (6) of the statement of claim the plaintiffs alleged that:

“The said paper writing alleged to be a holograph will is a fraudulent document and that if at all it was written by the deceased which the plaintiffs deny, it was extracted by the first defendant from the deceased through undue influence or duress. It is an invalid document for want of form and legal substance, repugnant to the fundamental laws of the land.”

In the reply to the amended statement of defence, the plaintiffs had further alleged that the probate was irregularly obtained. It must be pointed out that any allegation of impropriety must be proved by the person who alleges it. It is not enough just to allege it. No 

particulars of the fraud were given and no attempt was made by the plaintiffs to establish same. The evidence is that when the will was prepared, the first defendant herself was not present. Both the first and second defendant witnesses identified their signatures and that of the testator. The allegation that the will had been obtained under undue influence or duress has not been established. I am satisfied that the document purporting to be the will of the late Mensah-Akman, is in fact the will of the late Mensah-Akman, he having duly prepared and signed the document voluntarily in the presence of both the first and second defendant witnesses and who in the presence of the testator and in each other’s presence had also attested to the signature of the testator. I hold therefore that the document of the late Nelson Afosah Mensah-Akman dated 4 October 1979 is a valid will. Although it was alleged that the grant of probate had been obtained irregularly, no such irregularity had been established. I find that the probate was regularly obtained by the executrices, the defendants herein.

The next issue for determination is whether or not the first plaintiff is a widow of the late Mensah-Akman. But before I touch on this issue, I will determine the issue of the other plaintiffs which in my opinion is a claim independent of the claim of the first plaintiff. The other plaintiffs admittedly are the children of the late Mensah-Akman; they may claim on their own behalf under Act 360. Section 13(1) of Act 360 provides:

“13. (1) If, upon application being made, not later than three years from the date upon which probate of the will is granted, the High Court is of the opinion that a testator has not made reasonable provision whether during his lifetime or by his will, for the maintenance of any father, mother, spouse or child under 18 years of age of the testator, and that hardship will thereby be caused, the High Court may, taking account of all relevant circumstances, notwithstanding the provisions of the will, make reasonable provisions for the needs of such father, mother, spouse or child out of the estate of the deceased.”

(The emphasis is mine.)

Even though there is no age limit to a father, mother or spouse who can apply under section 13(1) of Act 360, only a child under eighteen years of age is entitled to the provisions under the section. Consequently, even if the court finds that no reasonable provisions had been made for the children during the testator’s lifetime or by his will, and that hardship would thereby be caused to them, the court cannot make any order under the section if the child is not under 

eighteen years of age. The evidence shows conclusively that the second, third, fourth and the fifth plaintiffs are all over eighteen years of age; they were so even before the testator’s death. Counsel for the plaintiffs anticipated this difficulty in making the claim on behalf of the children under the section. He has therefore urged upon the court to apply the provisions of other statutes. I am not able to do so. Those statutes referred to by counsel apply only in certain situations. Section 13(1) of Act 360 has specifically provided for the situation in which we find ourselves now. The section admits of no ambiguity. It does not therefore require the aid of other statutes for its application. I think this provision was made to correct a situation which existed under customary law where the children were often neglected by the deceased’s family.

There is no conflict between the provisions of section 13(1) of Act 360 and article 32(3) of the abrogated Constitution, 1979. Article 32(3) of the Constitution, if it is applicable at all, states:

“(3) Parliament shall enact such laws as are necessary to ensure . . .

(b) that every child, whether or not born in wedlock, shall be entitled to reasonable provision out of the estate of its parents.”

In fact Act 360 was passed before the Constitution, 1979. PNDCL 111 specifically provides for children under intestacy. There has not been any amendment to section 13(1) of Act 360. The makers of that law must have had their reasons. In the absence of any positive law changing the age limit, it would be wrong for any court to assume the role of a legislator and change the law. In conclusion therefore, I am unable to accede to the request of the second, third, fourth and the fifth plaintiffs. I find that their claim is misconceived and it is accordingly dismissed.

Now, the first plaintiff claims to have been married under customary law and therefore is a widow of the testator upon his death. There is evidence to show that from 1955 to some time in 1976, the deceased lived with the first plaintiff apparently as man and wife. The same could not be said of the period from 1976 to 1983 when the deceased died. In our society, various relationships exist between a man and a woman which cannot properly be called a marriage. When section 13(1) of Act 360 refers to a “spouse”, it must necessarily mean a spouse of a legally recognised marriage. If a “spouse” could arise out of any relationship at all, the Act would have stated so as it did in the case of a child (vide section 18 of Act 360). A “spouse” means the wife or husband of a deceased person. This 

definition presupposes the existence of a marriage. The onus therefore is on any person who claims to be a spouse entitled to the benefit of the provisions of section 13(1) of Act 360 to establish his or her marriage. The fact that the first plaintiff and the deceased lived together for a long period and had issues is some evidence but not conclusive evidence of marriage.

The first plaintiff does not claim that her marriage with the deceased was under the Marriage Ordinance, Cap 127 (1951 Rev). According to her, her marriage was in accordance with the Ga six- cloth custom.

She gave evidence herself and called in support the evidence of her son Charles Nana Kweku Aboagye (the third plaintiff) and the fourth plaintiff. She also called one Bibio Alice Kparbitey (the third plaintiff witness) and Allotey Kwao (the second plaintiff witness), an elder of the Kpeshie Mantse.

In so far as the alleged marriage is concerned, the evidence of Bibio Alice Kparbitey and Allotey Kwao is relevant. Neither the first plaintiff nor the late Mensah-Akman were at the place where the alleged customary rites of marriage had been performed, but the evidence is quite clear as to what the late Mensah-Akman had intended the presents to be. Fortunately the late Mensah-Akman had the opportunity to record in his various manuscripts which have been tendered in evidence what his relationship with the first plaintiff was. He denied ever sending a trunk, cloth or £50 to the father of the first plaintiff. The friction between the deceased and the first plaintiff started about five to six years before the death of the former. The matter was investigated by no less a person than the Right Reverend Bishop Dadson, the third defendant witness. I have strained my mind to find a motive for the conduct of the third defendant witness. I find no other than that, since the late Mensah-Akman was in his parish and he wanted to solemnise his marriage with the first defendant, it was a necessary part of his duties as a priest to investigate whether or not there existed an impediment to such a marriage. All the letters tendered are a testimony of this desire to find the truth about the relationship between the first plaintiff and the deceased.

I have no cause to doubt the sincerity of the third defendant witness. Auntie Yuu who admittedly was sent by the late Mensah-Akman to present the items for the rites, did not give evidence in this case. The third plaintiff witness is a very close friend of the first plaintiff. Before the late Mensah-Akman had any relationship with the first plaintiff, the third plaintiff witness and another person lived with the first plaintiff as friends. From exhibit 6, it would appear that the late Mensah-Akman had not approved of the relationship between the first plaintiff and the third plaintiff witness. He had accused the first plaintiff of being with another man in her room and when the first

plaintiff was asked about this, she had told him that the man was the friend of her friend Bibio. Although these statements were made by the deceased himself, they formed part of a series of entries made by the deceased at a time when this litigation had not been anticipated. The third plaintiff witness appears to me to be very interested in the case. I do not believe her evidence.

From the evidence given by the second plaintiff witness, it is quite clear that the ceremony which was caused to be performed by the late Mensah-Akman before the first plaintiff’s father could not be a marriage ceremony. One of the requirements of custom is that there must be publicity. I think this is necessary in view of the fact that in many of our customary practices, writing is unknown. Custom therefore demands that what is done customarily must be witnessed not only by those concerned with the transaction, but other outsiders who would bear witness to such transaction when the need arises. In the instant case, neither of the relatives of the parties were said to be present or, if they were, none testified.

The late Mensah-Akman had a relationship with the first plaintiff. The latter became pregnant. Custom demanded that there should be acceptance of paternity. This is what the late Mensah-Akman did. It is true that thereafter he lived with the first plaintiff and had more children with her. This by itself would not convert their relationship into a recognised customary marriage. The most that could be said of the relationship was that the father of the first plaintiff had accepted that his daughter should stay with the late Mensah-Akman. When the late Mensah-Akman wanted to sever his relationship with the first plaintiff, he wrote to the first plaintiff’s father who accepted the severance. Since it was the first plaintiff’s father who had accepted the customary rites of paternity, it was he alone who could accept or refuse the severance; the first plaintiff had every opportunity to challenge this. This severance of relationship happened about seven years before the death of the late Mensah-Akman. No relative of the first plaintiff raised an objection to the deceased’s conduct nor the conduct of the first plaintiff’s father.

It is not unknown that a man and a woman would live all their lives together without getting properly married. I do not accept the evidence that the first plaintiff’s father had accepted the severance rites because he was at loggerheads with the first plaintiff. The first plaintiff, I find, was content with the situation. Her insistence that she was married to the deceased was intended to prevent the late Mensah-Akman from marrying the first defendant in the church. I believe the evidence of the first defendant and her witnesses. I reject the evidence of the first plaintiff and her witnesses. The first plaintiff has failed to establish her claim. I find that there was no 

customary marriage between the first plaintiff and the late Nelson Afosah Mensah-Akman and that whatever relationship existed between the two was severed almost seven years before Mensah-Akman died.

Since I have found the will of the late Mensah-Akman to be valid, and since the first plaintiff cannot claim to be a spouse, she cannot claim any interest in the estate of the late Mensah-Akman.

In conclusion, I dismiss the claim of the plaintiffs against the defendants. The application for interim injunction by the first plaintiff against the defendants is hereby dismissed. There will be costs of ¢10,000 for the defendants against the plaintiffs.