IN RE DUNCAN (DECD); DUNCAN v. DUNCAN

JUDGMENT OF 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.

[p.387]

4. In the said will Mr. W. Sackeyfio and Mr. Nii Ankrah both of Accra were appointed executors.

5. 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 lett