IN RE OPOKU (DECD.); GOH v. DONYINAH AND OTHERS

JUDGMENT OF ARCHER J.A.

Archer J.A. delivered the judgment of the court. On the 23 June 1967, the High Court sitting at Accra granted probate in respect of the will [p.274] of the late Samuel Opoku to the three appellants who were named in the will. Subsequently the respondent who claimed to be the customary successor instituted proceedings to revoke the probate on the grounds:

(1) That the will was not executed in accordance with the Wills Act, 1837 (7 Will. 4 & 1 Vict., c. 26); and

(2) That the will was obtained by fraud as the deceased did not know or approve of the contents or alternatively the will was obtained by undue influence exerted by the appellants at a time when the deceased was seriously ill in hospital.

The respondent therefore prayed the court below to declare the will invalid and to grant her letters of administration. Lengthy evidence was adduced by the respondent and some members of her family in an attempt to substantiate the grounds of her claim. The three appellants and the two witnesses to the will also gave evidence and explained how the deceased took a piece of paper from under his pillow at the Agogo hospital and instructed the third appellant to write down his testamentary wishes. In a lengthy judgment the learned trial judge held that the will was invalid on the ground that the contents were written in indirect speech instead of direct speech and although the deceased's signature appeared at the bottom, yet there was no evidence that the deceased intended that document to be his will.

The only legal point worth considering by this court was whether the reasons relied on by the court below for invalidating the will were tenable at law, and Dr. Ako Adjei, learned counsel for the respondents, was invited by the court to say whether he supported the reasoning of the court below. With exemplary candour, Dr. Ako Adjei conceded that he could not do so. We therefore allowed the appeal and we now give our reasons.

What is this unorthodox will that has generated this litigation? It is very short and it is quoted below verbatim:

"S. K. Owusu-Ansah,

Nkoranza Training College,

P.O. Box 28,

Nkoranza, B/A.

HOUSE No. C360/11 .. .. £G750

From Mr. Ofosuhene (Elder brother Mr. Asante).

Receipt given by Mr. Ofosuhene and witnessed by Mr. Ampadu. Receipt prepared by Mr. Oduro.

Brother Opoku instructed that myself, Donyinah I and Donyinah II Akuma should be executors of his properties to look after the children and his father. One of