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[IN THE MATTER OF JOHN INTSIFUL, DECEASED]
SAMUEL TAWIAH INTSIFUL
V.
HENRY CHARLES CHRISTIAN ALIAS KOFI AMPAH
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
21ST DAY OF DECEMBER, 1951
2PLR/1951/28 (WACA)
OTHER CITATION(S)
2PLR/1951/28 (WACA)
(1951) XIII WACA PP. 345-346
LEX (1951) – XIII WACA 345-346
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.,
COUSSEY AND KORSAH, JJ.
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BETWEEN
IN THE MATTER OF JOHN INTSIFUL, DECEASED
SAMUEL TAWIAH INTSIFUL – Plaintiff- Appellant
AND
HENRY CHARLES CHRISTIAN
ALIAS KOFI AMPAH – Defendant-Respondent
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ORIGINATING COURT(S)
Appeal from the Supreme Court, W.A.C.A. Civil Appeal No. 34/51
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REPRESENTATION
Awoonor-Williams for Appellant
Hayfron-Benjamin for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
ESTATE ADMINISTRATION AND PLANNING:- Claim by one executor to have will established – Where remaining executor renounced probate and entered caveat – Caveator contending that testator not competent to execute will by reason of infirmity – What amounts to infirmity sufficient to invalidate a will.
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CASE SUMMARY
The plaintiff was the appellant. The trial Court held that owing to the feeble state of health and bad eyesight of the testator he was not competent at the time of execution of his will to make a will. The trial Court accordingly held that the testator died intestate and gave judgment for the defendant.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that: The evidence showed that the testator at the time of making his will knew what he was doing and so the will was valid.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
In this case, the plaintiff claimed as executor of the last will, dated 20th November, 1944, of John Intsiful, who died on the 18th June, 1950, to have the will established. The writ of summons was issued against the defendant, one of the other executors appointed under the will, who had renounced and entered a caveat against the granting of probate of the will in question.
The testator gave his instructions regarding the preparation of the will in dispute, Exhibit P1, sometime in 1941, and the document was typed in that year. After it had been typed it was handed to the testator who appears to have kept it in his custody up to the 20th of November, 1944, when he told James Amissah Hammond, a Methodist Minister, and Joseph Brookman Amissah Arthur; both of whom gave evidence at the hearing in the Court below, that he had made his will and asked them to witness his signature.
There was evidence that in November, 1944, the testator was in a feeble state of health and that his eyesight was poor. Both of the witnesses I have already referred to give evidence that the Testator’s hand had to be guided when he made his signature to the will.
The learned trial Judge, in effect, held that the testator was not competent on 20th November, 1944, owing to his feeble state of health and bad eyesight to make a will, and he accordingly held that John Intsiful died intestate, and gave judgment for the defendant.
It was argued on behalf of the appellant that the evidence clearly shows that the testator knew what he was doing when he executed the testamentary document in question and, in my opinion, the preponderance of evidence is in favour of that contention.
The testator gave detailed instructions for the preparation of Exhibit P1, he kept it in his possession for several years and eventually told two responsible persons that he had made his will and wished them to witness his signature to it. After the will had been signed and witnessed he asked Mr. Hammond, the Methodist Minister, whose evidence I have already referred to, to deposit it in the Divisional Court, Cape Coast, which he did.
Another witness, Gaddiel Robert Acquaah, Chairman of the Methodist Church in the Gold Coast, gave evidence that in 1948 the deceased “was nearly blind but mentally alert “.
In my opinion the better view of the facts in this case is that the testator was fully aware of the contents of Exhibit P1, when he executed it on the 20th November, 1944, that he knew what he was doing and wished to make his last will and testament. To hold otherwise would defeat the testator’s wishes which he has clearly expressed and wished to be carried out.
It follows, therefore, that in my opinion this appeal should be allowed and that there should be a declaration that the will in question is a valid one. In the circumstances I think the costs should be paid out of the testator’s estate.
Appeal allowed.
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