MENSAH & OTHERS v. ANIM-ADDO & OTHERS

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