MENSAH & OTHERS v. ANIM-ADDO & OTHERS
May 9, 1995
SUPREME COURT
GHANA
CORAM
- ABBAN CJ,
- AMUA-SEKYI,
- AIKINS,
- BAMFORD-ADDO,
- HAYFRON-BENJAMIN, JJSC
Areas of Law
- Probate and Succession
- Property and Real Estate Law
- Civil Procedure
May 9, 1995
SUPREME COURT
GHANA
CORAM
AI Generated Summary
This Supreme Court appeal involves the will of Dr. Patrick Kwaku Anim-Addo, who died on 5 February 1988 leaving a will dated 5 September 1987. His sons sued his daughter-executor, other executors, and his niece, Abena Asantewa, to invalidate five clauses that appointed administrators over shares in Ghana Textile Manufacturing Co Ltd, gifted gold trinkets, directed Kwanin Trading Co Ltd profits, created trusts over net rents and personal estate, and devised omitted property—many benefits stated for “the descendants of Abena Asantewa.” The High Court dismissed the suit, applying the testator’s personal customary law; the Court of Appeal reversed, applying the rules against perpetuities and accumulations to wills under Act 360. The Supreme Court, in a lead opinion and concurrences, held that Act 360’s construction rules and Courts Act 1971 s 111 (incorporating English Law of Property Act ss 161, 164) govern such wills. The phrase “descendants of Abena Asantewa” denotes an indefinite class; gifts to that class are void for remoteness/accumulation, while Asantewa’s life interests and personalty gifts stand. The Court set aside the Court of Appeal and High Court and substituted declarations on each clause; one judge dissented favoring customary law and restoring the High Court.
I have had the opportunity of reading in advance, the learned judgment of my brother HayfronBenjamin JSC, and I agree entirely with the conclusions he has arrived at in this appeal. But I would like to make a few observations, as a sort of footnote. I think what was involved in this suit was essentially the construction of five clauses in the will of the testator. The will was dated 5 September 1987, and the testator died on 5 February 1988. Those five clauses were clearly set out in the statement of claim, paragraph 4. They are as follows:
1 I appoint Mrs Addae Mensah alias Nana Abena Biama as one of the executors to administer my interest in the company Ghana Textile Manufacturing Co Ltd and pay the benefits profits to Abena Asantewa my niece in her life time and after her death should pass on to the descendants of her children.
6 I give and bequeath all my trinkets (gold) to my niece Abena Asantewa and after death to pass on to her descendants.
7 I appoint Yaw Asirifi and Godson Nyarku to run Kwanin Trading Co Ltd as directors and to administer the company and invest the benefits and profits to the descendants of Abena Asantewa.
10 I devise and bequeath the residue of my real estate to my Trustees upon trust as follows: As to houses, to collect rents and after paying annual rates, taxes etc to invest the net rents in government bonds, and as to personal estate upon trust to call in and convert into money if the need arises and to invest for the benefit of the descendants of Abena Asantewa.
13 I direct that any property of mine including investments which has been left out and not mentioned under this will including lands should pass on to Abena Asantewa and after her death should pass on to her descendants.
(My emphasis.)
The formal validity of the will of the testator, the late Anim-Addo, was not in dispute. That is, the will complied with the formal requirements of the Wills Act 1971 (Act 360), and probate was therefore granted to the named executors, who together with Abena Asantewa (a beneficiary under the said will) are the defendants in the present suit.
In the construction of a will of such nature made under the Wills Act 1971, it seems to me that it was not right for the learned High Court judge, (to borrow his own words) “to look outside the Wills Act to determine the law to be applied in deciding on the consequences and effectiveness of the will.” The learned judge w