KWEKU KWEINU SEY & ANOTHER v. MADAM HARRIET SERWAA ANIN

JUDGMENT

OFOE,J.A:

The plaintiffs/appellants hereinafter referred to as plaintiffs are the executors of the purported will of Theophilus Ernest Annin. The defendant/ respondent herein referred to as defendant, was a sister of the deceased Theophilus Anin. She has joined her ancestors and has been substituted by the daughter. The main issue joined between the parties is whether the document exhibit A was a will executed by the deceased

The case of the plaintiffs is simply that the will was duly executed by the deceased in the presence of one Samuel Amartey and Samuel Quartey both present at the same time. The defendant on the other hand maintained that the will was not executed by the deceased but that the signature on the alleged will was fraudulently procured. The gist of the particulars of fraud she provided was that the alleged signature on the said document was a forgery and that the deceased did not execute the said will of the deceased. Whilst the plaintiffs asked the trial court to declare the will of Theophilus Anin dated the 21st January as valid the defendant has also counterclaimed that the court declare the said will as invalid and therefore Theohilus died intestate.

There is this property House No 17, Mankralo Street Cantoments which was the last abode of the deceased. The daughter of the deceased, Stella Owusua Anin has assumed ownership of this property claiming it was gifted to her by the father before his demise. The defendant is challenging this gift and asking that the court declare this property as part of the estates of the deceased. Since the said daughter has rented this property they are asking additionally that the court orders all rents to be paid into court pending the distribution of the estates.

The trial court dutifully set for trial the issues whether the signature on the will dated the 21st of January 1998 is that of Theophilus Anin and whether this will is valid. It was also set for trial whether House Number 17, Mankralo Street Cantoments forms part of the estates of Theophilus Ernest Anin.

He set the stage for the trial when he, rightly in our view, said:

“In the instant case as the defendant has challenged the validity of the will on grounds of forgery, it is incumbent upon the plaintiffs to lea credible evidence to establish its genuineness. Indeed the evidential burden assumed by each side in view of the positions they have taken is that the plaintiff must show that the document in respect of which they sought p