AKUA PREMPEH & ORS v. S.D.A. ODDAI

AMPIAH, JSC.:

This is an appeal from the decision of the Court of Appeal which affirmed the decision of the trial High Court.

The plaintiffs are the children of one Ama Owusuaa whose mother was Akua Frema, a full-blood sister of the late Shadrack Kwaku Edusei. They brought the action as the principal members of the immediate matrilineal family of the late Shadrack Kwaku Edusei whose purported ‘Will’ is the subject-matter of this dispute.

The late Shadrack Kwaku Edusei died on 10th October, 1966 and probate of his purported Will was granted to Madam Akosua Adoma and Akosua Anane jointly on 15th December, 1980. The Writ to recall and revoke the probate and to declare the 'Will' as null and void was issued on 13th August, 1990.

In their Writ of Summons, the plaintiff claimed for, among others, that,

".... the purported 'Will' alleged to have been made by the said Shadrack Kwaku Edusei, dated the 8th day of January, 1965 was not the act or deed of the said late Shadrack Kwaku Edusei and is void and of no effect whatsoever".

The defendant denied the allegation and counterclaimed for,

"a declaration that the Will of Shadrack Kwaku Edusei dated 8th January, 1965 is valid".

Consequently the parties joined issues on 'whether or not the purported Will of the said Shadrack Edusei dated the 8th day of January was procured by the defendant by fraud and is therefore a forgery and therefore null and void'.

The validity of the alleged will was thus put in issue.

The alleged will was tendered in evidence as Exhibit 1. The trial judge having reminded himself that the case concerned a deceased person therefore it must be looked at with great care, proceeded to critically analyse or evaluate fully the evidence on record.

"The rule enunciated by Parke B is that in every case the onus lies on the propounders of the Will to satisfy the Court that the instrument is the Last Will of a free and capable testator, must, however, be taken, I think, to refer to the first stage so to speak, of the onus for, the onus does not necessarily remain fixed; it shifts. Where there is a dispute as to a Will those who propound it must clearly show by evidence that prima facie, all is in order, that is to say, there has been due execution and that the testator had the necessary mental capacity and was a free agent. Once they have satisfied the Court, prima facie, as to these matters, it seems to me the burden is then cast upon those who attack the Will and they are required to substanti