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JUDGMENT
This is the Judgment of the Court on an Originating Motion Ex Parte for Grant of
Probate filed by the Applicants to administer the estate of Joseph Kwesi Baidu A. K. A.
Agyapa (deceased).
THE LAW ON GRANT OF PROBATE (COMMON FORM)
The law pertaining to grant of Probate will be discussed under the following two
headings:
A) Ascertaining the Statutory prerequisites for the grant of Probate, and
B) Affording facility to remedy non-compliance with Statutory prerequisites
for the grant of Probate or L. A.
A) ASCERTAINING THE STATUTORY PREREQUISITES FOR GRANT OF PROBATE
In determining an application for the grant of Probate (Common Form), the Court is
required by statute to ascertain the following:
(1) The jurisdiction of the Court and every Court with concurrent jurisdiction;
(2) The time, place and fact of death of the deceased;
(3) The value of the estate of the deceased;
(4) Affidavit by the executor(s), as applicant(s), deposing to facts upon which the
application for Probate is grounded;
(5) Assurance of faithful administration of the estate of the deceased; and
(6) The existence and regularity of the Will.
See A Practical Guide to Civil Procedure in Ghana by Justice Samuel Marful-Sau 2017
at page 181.
Where trial Courts fail to carry out these statutorily mandated ascertainment exercises
when determining applications for Probate and Letters of Administration (L. A.), not
only does the failure rip the Judicial Service of huge sums of money annually in Estate
Duties, but also it plunges the Court into indirectly and unknowingly condoning the
incidence of “error and fraud” associated with applications for Probate and L. A., the
very incidence the Courts are enjoined to prevent under Order 66 rule 10 (4) of C. I. 47.
With regard to applicants for grant of Probate or L. A., it must be noted that, a party
who seeks a favour from the Court must be candid: see Mumuni v Nyamekye [2013] 58
GMJ 35 at 58-59, CA. With particular reference to ex parte applications, such as the
instant one, the proposition of the law is that utmost good faith is required of an ex
parte applicant and such applicant is under a duty not to suppress any material facts or
misrepresent facts to the Court: see Republic v High Court, Accra; Ex Parte Salloum &
Others (Senyo Coker Interested Party) [2011] 1 SCGLR 574 at 582; R v Kensington
Income Tax Commissioners; Ex parte Princess Edmond de polignac [1917] 1 KB 486, CA;
and R v Accra District Court Magist