The Court of Appeal has set aside a judgement of the Accra Fast Track High Court which revoked the probate granted to the executors of the will of the late Edward Osei Boakye.
According to the court, the conclusion reached by the trial judge that the will in dispute had not been granted probate was unacceptable.
The High Court had, on November 4, 2011, revoked the probate of the will granted on November 20, 2006.
Edward Osei Boakye of Boakye Mattress fame, who died on August 21, 2006, appointed the Presiding Bishop of the Methodist Conference, the Anglican Bishop of the Diocese of Kumasi and the Catholic Bishop of Konongo/ Mampong, Ashanti, as the executors of his will.
Following the grant of the probate, the executors established the Edward Osei Boakye Trust Fund, a limited liability company, as mandated by Mr Boakye in the will.
In the will, Mr Boakye bequeathed a house to Mary Akyaa Osei Boakye, his sister, which the executors vested in her after the grant of probate.
The deceased did not give anything to Andrews Sarpong, his brother, as well as Sandra Akosua Akyaa and Christiana Akosua Boatema, his two adult children.
Two years after the grant of probate and one year into the administration of the estate, Mary Osei Boakye, Sarpong, Akosua Akyaa and Akosua Boatema brought an action against the executors and the fund, praying for the revocation of the probate.
The plaintiffs sought a declaration that the last will and testament of the late Osei Boakye dated May 10, 1997 was invalid, void and of no effect in that it was not executed in accordance and in compliance with Section 2 (3) of the Wills Act, 1971 (Act 360).
They also sought an order to revoke and set aside the grant of probate in respect of the said will to the executors by the High Court, Accra, on November 20, 2006, a declaration that the estate of the late Osei Boakye should fall into intestacy due to the non-compliance with Section 2 (3) of the Wills Acts, 1971 Act 360), an order for accounts from the executors starting from the date of probate to the date of judgement and a perpetual injunction restraining the executors from carrying out or holding themselves in any manner or form as executors or trustees or trust body of the estate of the late Osei Boakye.
They contended that in the said will of the late Osei Boakye, the names of George Kwasi Darkwah, a law clerk of Fugar and Co, Accra, and Lawrence Otoo, a legal practitioner also of the same firm, had been indicated as the attesting witnesses, yet there were no marks or signatures of those witnesses to indicate they witnessed the will in the presence of each other and both of them were present at the time of the execution by Osei Boakye as required by law.
They averred further that in the application for the probate at the High Court, Accra, one of the attesting witnesses, Lawyer Otoo of Fugar and Co appended his signature to the affidavit of witness in proof of due execution of a will or codicil clearly indicating and confirming that he had and used a known signature, which was missing in the portion with his name as one of the attesting witnesses of the will of the late Osei Boakye dated May 10, 1997.
According to them, an affidavit of a witness in proof of due execution of a will signed by the said Otoo and attached to the probate application at the High Court, Accra, stated that the date of the will of the late Osei Boakye was indicated as 27/02/98, suggesting that the will admitted to probate dated May 10, 1997 was not the will in issue and a different will was, therefore, the will under reference therein.
The executors denied, among others, specifically the averments of the plaintiffs’ statement of claim and asserted that the will which the High Court admitted to probate was the will deposited at the registry and there was no defect in it.
Aggrieved and dissatisfied with the conclusions reached by the trial judge, the defendants appealed to the Court of Appeal.
In its judgement, the court held that the evidence proffered by Rev Dr Robert Aboagye Mensah did not lend itself to the interpretation the trial judge placed on it because it was ambiguous and very weak when compared to the unchallenged evidence of the attesting witnesses.
In spite of all those pieces of evidence, according to the court, which pointed to the fact that the will in respect of which the executors applied for probate was the original copy, the trial judge accepted the argument of plaintiffs that the probate granted was in respect of a non-existent will.
The court was of the view that the explanation of the attesting witness that the date February 27, 1998, instead of May 10, 1997, stated as the date of the disputed will was a mistake was tenable in the light of evidence on record “because, as human beings, we are prone to making mistakes and that what happened in this case was clearly a clerical error”.