IN RE AYAYEE (DECD.); KUKUBOR AND ANOTHER v. AYAYEE

JUDGMENT OF KORANTENG-ADDOW J.

The plaintiffs are the executors appointed under the will of the late Gabriel Quesah Ayayee. The second plaintiff is the daughter of the deceased and the defendant is the brother of the full blood of the second plaintiff. The plaintiffs' claim is for an order for probate in solemn form of a will executed on 23 January 1969, by the deceased and an order to remove the caveat filed by the defendant. The defendant by his defence alleged that the said will had been obtained by undue influence of the second plaintiff and that the deceased, when he executed the will was completely blind in both eyes, hard of hearing, extremely old and that his memory was greatly impaired and that the deceased did not know and approve of the contents of the will. By a counterclaim the defendant seeks to obtain probate in solemn form of a will executed by the deceased on 25 November 1965 and a codicil dated 4 October 1965.

The testator died on 10 June 1971. The mother of the second plaintiff and the defendant had died so their late father married a woman called Alice Monyie in 1940. The circumstances which led the defendant to allege undue influence dates back to about eight years prior to the demise of the deceased. The testator and his wife Alice moved into his own house at Asylum Down in about 1962 or 1963. They had four young children. The second plaintiff and her sisters and brothers are all grown-up persons. The second plaintiff, hereinafter called Martha, is about 50 years old or thereabout. Before 1962 she was married and she lived with her husband. Her other sisters were Ruth and Georgina. In 1963 Martha moved into her father's house and lived there with the father, step-mother Alice and the children of her father by Alice. The plaintiff's case is that soon [p.869] after Martha moved into the house, Alice left with all her children and she was left to take care of the old man. According to Martha, apart from loss of his sight, the testator was physically well, and he did everything himself except that he had to be led due to blindness. She said after her step-mother left the house, she had to take care of the old man, she did everything which a wife would do, and that her sister Georgina who had also come to live in the house did not assist her. She said she did not know when her father made the will, but during the memorial service following her father's death, lawyer S.M. Codjoe of blessed memory told her of the will.

The will was take