GH - RE ALHASSAN'S APPLICATION

By his will, exhibit A, dated 19 September 1966, the testator left all his property to his grandson, Abdulai Mahama. Exhibit A is the kind of will usually referred to as a "home-made" will though this one was prepared on the instructions of the testator by a letter-writer whose ignorance about such an important document is apparent on the face of the said document. After making a gift of all his property to his grandson, the testator thumbprinted it and immediately after his thumbprint on the left-hand side of the will appears the word "witnesses" and underneath this, there appear two names: (1) Alhassan Alibaka, and (2) Zaratu Issah, who made their marks.

Although there is no attestation clause there is no doubt that these two persons are the witnesses to the will, and Order 60, r. 26 (1) of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), states:

"If there is no attestation clause, or if the attestation clause is insufficient, the Court shall require an affidavit from at least one of the subscribing witnesses, if either of them is living, to prove that the will was, in fact, executed in accordance with those enactments."

There is such an affidavit from Alhassan Alibaka testifying that the testator executed the said will on the day mentioned in the will, exhibit A, making his mark and affixing his thumbprint at the foot or end thereof in his presence as well as that of Zaratu Issah, the other subscribing witness, both of them being present at the same time. The affidavit further stated that the two of them attested and subscribed the said will, exhibit A, in the presence of the testator. I am satisfied on this evidence that the formalities relating to the execution of exhibit A were complied with.

There is, however, another matter that merits consideration in this application. On the left-hand side of the will, exhibit A, but [p.942] before the word "witnesses," there appear the two thumbprints of Abdulai Mahama, the sole beneficiary under the will, and Mumuni Alhassan in whose care Abdulai Mahama is entrusted. For the sake of brevity I shall describe Mumuni Alhassan as a "testamentary guardian" and he shall hereinafter be referred to as such.

The question here is whether the sole beneficiary and "testamentary guardian" thumbprinted the will as witnesses in addition to Alhassan Alibaka and Zaratu Issah. The position of the "testamentary guardian" as a further witness if at all to the will is of little moment, but if the sole be

RE ALHASSAN'S APPLICATION

Areas of Law

JUDGMENT