Safoah v Baah (PA/0314/2024) [2024] GHAHC 521 (1 November 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE, PROBATE AND LETTERS OF ADMINISTRATION DIVISION ‘COURT 3’ HELD IN ACCRA ON TUESDAY THE 1ST DAY OF NOVEMBER 2024 BEFORE HER LADYSHIP JUSTICE EUDORA CHRISTINA DADSON (MRS.), JUSTICE OF THE HIGH COURT. ------------------------------------------------------------------------------------------------------------ SUIT NO. PA/0314/2024 IN THE MATTER OF THE ESTATE OF EDWARD KWAKU YEBOAH (DECEASED) AND IN THE MATTER OF ARTICLE 22 OF THE 1992 CONSTITUTION OF THE REPUBLIC OF GHANA AND SECTION 13 OF THE WILLS ACT 1971 (ACT 360) AND IN THE MATTER OF MADAM JANET AKUA SAFOAH APPLICANT VRS KWAKU BAAH RESPONDENT --------------------------------------------------------------------------------------------------------------------- SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 1 of 35 PARTIES COUNSEL -------------------------------------------------------------------------------------------------------------------- DECISION ON APPLICATION FOR REASONABLE PROVISION JUDGMENT --------------------------------------------------------------------------------------------------------------------- [1] Introduction It is not uncommon anywhere to find the case of a testator, who either through forgetfulness or deliberately omitted to make provisions for persons with expectations reasonable or otherwise of partaking in his estate. The testator is of course, not bound to make any devises to his family1. For as Knight Bruce said in Bird v. Luckie: “No man is bound to make a will in such a manner as to deserve approbation from the prudent, the wise or the good. A testator is permitted to be capricious and improvident and is more at liberty to conceal the circumstances and the motives by which he has been actuated in his dispositions. Many a testamentary provision may seem to the world arbitrary, capricious and eccentric, for which the testator, if he could be heard, might be able to answer most satisfactorily2.” Cockburn, C.J. also said: “The English law leaves everything to the unfettered discretion of the testator, on the assumption that, though in some instances, caprice, or passion, or the power of the new ties, or artful contrivance, or sinister influences, may lead to the neglect of claims that ought to be attended to, yet, instincts, affections and common sentiments of mankind may be safely trusted to secure, on the whole, a better disposition of the property of the dead, and one more accurately adjusted to the 1 Crabbe S. A., Law of Wills in Ghana, 1998 2 Bird v. Luckie: [1850] 8 Hare 306 SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 2 of 35 requirements of each particular case, that could be obtained through a distribution prescribed by the stereotyped and inflexible rules of a general law3. The general rule therefore, is that the Court has no power to redraft a will or add words to it. The duty of the Court is to construe the testator’s Will in accordance with the established rules of construction and not to make a new will for him. A Will has been defined as a “testamentary and revocable document, voluntarily made, executed and witnessed according to law by a testator with sound disposing mind wherein he disposes of his property subject to any limitation imposed by law and wherein he gives such other directives as he may deem fit to his personal representatives otherwise known as his executors, who administer his estate in accordance with the wishes manifested in the Will”. Thus, a Will is a document through which a person directs how his property is to be distributed when he is dead. A Will takes effect only upon the death of its maker (the testator) and until then it is but a declaration of intention which can be varied or revoked at any time. It is not mandatory to make a Will but persons who wish to settle their affairs before their death or with a wish to avoid family disputes after their demise choose to do so. Testamentary freedom is a principle in Wills Law whereby a person is free to dispose of his property however and to whomever he wishes in his Will. It is "the idea that a person has the right to choose who will succeed to things of value left behind at death”4. Some pertinent issues must be addressed in considering this application. Is the Applicant seeking reasonable provision out of the Estate of Edward Kwaku Yeboah (Deceased)? Based on the affidavit evidence, the questions for my resolution are: has the Applicant made a case sufficient through her affidavit evidence and exhibits to entitle her to the 3 Banks v. Goodfellow: [1870] L. R. Q. B. 549 at 564 4 Statutory limitations to testamentary freedom in Nigeria: A Comparative Appraisal, by Alero I. Fenemigho, LLM, BL, Lecturer, Department of Jurisprudence and International Law, Faculty of Law, University of Benin, Benin-City. SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 3 of 35 orders she seeks? And as opposed and articulated by the Respondent Counsel, is the Court clothed with jurisdiction to make orders under an application such as the present? Also, based on the law does this Court have the powers to grant the orders the Applicant seeks? These are the premises on which I shall proceed to consider the present application. It is however, convenient, before outlining the issues raised in this instant application, to chronicle in brief the respective claims of the parties as contained in the depositions of the affidavits filed and the arguments of Counsel. [2] Applicant’s case The Applicant filed a motion praying for an order for reasonable provision to be made for the needs of the Applicant out of the estate of Edward Kwaku Yeboah (deceased). The Applicant states that she is the widow of Edward Kwaku Yeboah (deceased) and she had two children with the deceased both of full age. It is the case of the Applicant that the deceased died on 27th April 2021 and prior to his death she had been married to the deceased for over 45 years under customary law. According to the Applicant it has come to her attention recently that her late husband executed a Will and that no provision was made for her in the said Will. The Applicant states as follows: “That my place of residence is our matrimonial home and I have lived in that house for some 40 years. That after my husband was taken ill in 2015 which led to his ultimate demise in 2021, I took up the care of the house and did extensive renovations to the house. That in the said Will my husband devised our matrimonial home to three (3) persons he named as his children (2) of who are unknown to me. That aside not making any provision for me in the Will my husband in his lifetime also did not make any alternative arrangement for accommodation for me or for my upkeep upon his demise. SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 4 of 35 That attached and marked Exhibit “SJAS 1” is a copy of Statutory Declaration sworn to by the Head of Family of the family of my deceased husband attesting to the fact that I am the surviving spouse of my husband. That I have been advised by Counsel and verily believe same to be true that I have the capacity to mount the instant suit and instruct Counsel accordingly.” It is the further case of the Applicant that probate was granted on 11th October 2023 in respect of the last Will and Testament of the deceased and that this was a proper case for the Court to order reasonable provision for the Applicant from the estate of her husband including but not limited to granting her a life interest in their matrimonial home so she is not rendered homeless. The Applicant filed a supplementary affidavit on 28th February 2024 and stated that she denies paragraphs 5 and 6 of the affidavit in opposition and attached a copy of a statutory declaration sworn to by the head of family of the deceased husband attesting to the fact that she was the deceased surviving spouse. The Applicant filed the following documents in support of her case: 1. Exhibit JAS 1 - Copy of the Death Certificate 2. Exhibit JAS 2 - Copy of Funeral Brochure 3. Exhibit JAS 3 - Copy of Will 4. Exhibit JAS 4 - Court Notes 5. Exhibit SJAS 1 - Copy of Statutory Declaration 6. Copy of Application for probate. Inventory – one house at Dansoman and one house at Obo; Bank Accounts and personal effects. The Applicant filed affidavit of means on 6th June 2024. The Applicant depose that she was 69 years and she is not engaged in any economic activity on account of her health condition. Her children contribute four thousand cedis monthly towards her upkeep and her current monthly expenditure does not exceed GHC4,340.00. SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 5 of 35 [2.1] Respondent’s case The Respondent states that neither the Applicant nor her Counsel has capacity to institute or file the motion herein. The Respondent stated further that: “The motion is a scam and an abuse of this Court’s process and not intended to seek justice to the Applicant or the named beneficiaries of the late Edward Kwaku Yeboah namely the Children of the deceased. That no Parliament under the 1992 Constitution cited in the motion herein has passed any legislation in accordance with Article 22 (2). The Respondent prayed that the Application should be dismissed in limine. [3] Written Submissions of Counsel [3.1] Written submission of Counsel for Applicant My Lady, respectfully the case of the Applicant is well encapsulated in her Affidavit in support of the Application as well as her Supplementary Affidavit. It is the case of the Applicant that she is the widow of Edward Kwaku Yeboah (deceased) and there are 2 children between them, both of full age. The Respondent, a Lawyer, is the Executor of the Will of the Applicant’s deceased husband. Exhibits ‘’JAS 1’’ and ‘’JAS 2’’ attached to the Affidavit in Support are copies of the death certificate and funeral brochure which contains Applicant’s tribute as a widow. In rebuttal of the Respondent’s challenge to the capacity of the Applicant, Applicant in her Supplementary Affidavit has placed before the Court a Statutory Declaration deposed to by the Head of Family of her husband attesting to her capacity as surviving spouse of the deceased. The Applicant says that until the unfortunate demise of her husband on 27th April 2021, she had been married to her husband for upwards of 45 years under customary law. The SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 6 of 35 Applicant says that it has recently come to her attention that her deceased husband on 15th January 1990 executed a Will which Applicant attached to her Affidavit in Support as Exhibit ‘’JAS 3’’. It is the Applicant’s further case that at the time of the execution of the said Will made in 1990 she was the spouse of the deceased but absolutely no provision was made for her in the said Will by the deceased at all. The Applicant stated that her place of residence is their matrimonial home which she has lived in for over 40 years. The Applicant stated that after her husband was taken ill in 2015 which led to his ultimate demise in 2021, she took up the care of the house and did extensive renovations to the house. In the said Will her deceased husband devised their matrimonial home to three (3) persons he named as his children two (2) of who are unknown to her. The Applicant stated that aside not making any provision for her in the Will, her husband in his lifetime also did not make any alternative arrangement for accommodation for her or for her upkeep upon his demise. The Respondent in his Affidavit in Opposition seems to suggest that because Parliament has not enacted a law pursuant to Article 22(2) of the 1992 constitution, the Applicant should be remediless. This position is however unjustifiable. There is no lacuna in the law. Article 22(1) is clear in its terms and imperative. In any event the Wills Act 1971 (Act 360) offers a statutory remedy. My Lady, Section 13 of the Wills Act 1971 (Act 360) which is a specific enactment governing Wills in Ghana states as follows: “13 (1) if, upon application being made not later than three years from the date upon which probate of the will is granted, the High Court is of the opinion that a testator has not made reasonable SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 7 of 35 provision during his lifetime or by his will, for the maintenance of any father, mother, spouse or child under 18 years of age of the testator and that hardship will thereby be caused, the High Court may, taking account of all relevant circumstances notwithstanding the provisions of the will make reasonable provisions for the needs of such father, mother, spouse or child out of the estate of the deceased. (2) without prejudice to the generality of subsection (1), such reasonable provision may include— (a) payment of a lump sum, whether immediate or deferred, or grant of an annuity or a series of payment: (b) grant of an estate or interest in immovable property for life or any lesser period.” My Lady, it is clear from Section 13 (1) that the said provision can be invoked by a father, mother, spouse or child in the circumstance where hardship will be occasioned. Clearly the Applicant being a spouse belongs to the class of persons specified under Section 13(1). My Lady, in Section 13 (1) of the Wills Act 1971 the word spouse is interpreted simply to mean the wife or husband of a deceased person. The ingredients for succeeding on such an Application are that the Applicant should belong to the class of persons listed, the application should be brought within three years from the date of the grant of the Probate and there must be hardship. No requirement of being a dependent is imposed by the statute. My Lady, from the Exhibits attached to the Applicant’s Affidavit in Support, in particular from Exhibit “JAS 2”, and considering the statutory declaration made by SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 8 of 35 Abusuapanyin Nana Asiedu head of the Adamu Yanko Aduana royal family of Obo in the Eastern Region (the deceased’s family) it is without a shred of doubt that the surviving spouse of the deceased is the Applicant herein who had been the wife of the deceased for over 45 years at the time of the deceased’s demise in 2021. My Lady, the key test to satisfy by any father, mother, spouse or child under eighteen years of the testator where the testator fails to make reasonable provisions by his will is whether or not hardship will be caused. My Lady, it is significant to note that the only place of abode of the Applicant indeed is her matrimonial home in Dansoman-Accra where in fact the Applicant lived with the deceased for over 40 years. We also submit that the Applicant had made some extensive renovations to the matrimonial home. Therefore, it is our submission that the Applicant will be rendered homeless and will visit her untold hardship if the Honourable Court does not make reasonable provision in that regard. Section 13(2) (b) empowers the Court to grant a life interest in the matrimonial home in favour of the Applicant. Supplementary written submissions of Counsel for Applicant On 17th October, 2024 Your Ladyship directed the Plaintiff to address the Court on the issue of the procedure adopted raised by the Respondent in his Written Submissions. We proceed accordingly. My Lady, this position of the Respondent we contend is unsustainable in law. Indeed if a more candid reading of the Rules was made by the Respondent this argument ought not to have been canvassed at all by the Respondent. The instant Suit is not a Probate Action. The preceding Rule to Order 66 Rule 33 which is relied on by the Respondent defines a Probate Action. This is Order 66 Rule 32 of C.I.47. We find it shocking that the Respondent conveniently overlooked this. Order 66 Rule 32 provides as follows; ‘’INTERPRETATION SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 9 of 35 For the purpose of contentious probate matters as provided for under this Order, ‘’probate action’’ means an action for the grant of probate of the will or letters of administration of the estate of a deceased person or for the revocation of such grant or for a judgment or order pronouncing for or against the validity of an alleged will, being an action which is contentious or not common form probate business’’. The instant Suit is not for the grant of Probate or Letters of Administration or for the revocation of same or for the pronouncement for or against the validity of a Will. We submit therefore that the question of the issuance of a Writ does not arise at all. My Lady, the instant Suit is founded under the Wills Act, Act 360, Section 13 thereof. Section 13 provides that the made of invoking the High Court’s jurisdiction for appropriate reliefs thereunder is by Application. Order 19 Rule 1 of CI. 47 provides as follows; ‘’APPLICATIONS TO BE MADE BY MOTION 1. (1) Every application in pending proceedings shall be made by motion. (2) Proceedings by which an application is to be made to the Court or a Judge of the Court under any enactment shall be initiated by motion and where an enactment provides that an application shall be some other means, an application by motion shall be deemed to satisfy the provision of the enactment as to the making of the application. (3) Except where these Rules otherwise provide, no motion shall be made without previous notice to the parties affected. (4) If on hearing a motion the Court is of the opinion that any person to whom notice has not been given ought to have or to have had notice, the Court may either dismiss the motion or adjourn the hearing in order that the notice may be given upon such terms as it considers just’’. My Lady we contend that the instant Suit commenced by Motion and Affidavit in Support satisfies the requirement of the Wills Act and CI. 47. [3.2] Written submission of Counsel for Respondent SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 10 of 35 My Lady, the mainstay of the instant application is for the court to make an order for reasonable provision for the Applicant and this brings serious legal issues to bear which have to be determined. My Lady, will take judicial notice of the fact that what the applicant seeks from the court is a clearly a probate action and consequently the rules of court have to be complied with. Respectfully under Order 66 R 33 of the High Court Civil Procedure Rules 2004, C.I.47 clearly provides the manner in which a probate action should be commenced. For clarity purposes, we shall quote the said provision; Order 66 R 33 of C.I 47 (1) A probate action shall be commenced by writ. (2) The writ must be indorsed with a statement of the nature of the interest of the Plaintiff and of the defendant in the estate of the deceased. (3) Before a writ for the revocation of the grant of probate of a Will or letters of administration of the estate of a deceased person is issued out, notice shall be given under Rule 37, unless the probate or letters of administration has or have been lodged in the registry of the Court. My Lady, from the above it is clear that the subject matter however clothed by the Applicant remains a probate action and same should be commenced by a writ and not an originating motion. It is trite law that when a law proscribes a procedure it is that procedure that should be followed and nothing else. If the procedure is not followed it renders every proceeding nullity which is incurably bad. [4] Standard of Proof, Burden of Proof and Persuasion In all form of civil litigation and like all civil cases, the standard of proof is one of balance of probabilities or preponderance of probabilities. The proof prescribed in civil trial is SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 11 of 35 provided under sections 10, 11, and 12 of the Evidence Act 1975 NRCD 323. These sections on the burden of proof, burden of persuasion and the burden of producing evidence provide thus: “10. (1) For the purpose of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court. (2) The burden of persuasion may require a party (a) To raise a reasonable doubt concerning the existence or non- existence of a fact, or (b) To establish the existence or non- existence of a fact by a preponderance of probabilities or by proof beyond reasonable doubt. 11. (1) For the purpose of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party… 12. (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. (2) Preponderance of the probabilities means that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non- existence. In the case of Ackah vs Pergah Transport Ltd [2010] SCGLR 728 at page 736 Adinyira, JSC (as she then was) held that: “It is a basic principle of the law of evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail…” See also the case of Aryee vs Shell Ghana Ltd & Fraga Oil Ltd [2017-2020] SCGLR 721 at 733 where the Supreme Court speaking through Benin JSC had this to say: “It must be pointed out that in every civil trial all what the law required is proof by preponderance of probabilities: See section 12 of the Evidence Act, 1975 (NRCD 323). The amount of evidence required to sustain the standard of proof would depend on the nature of the issue to be resolved”. SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 12 of 35 The general position of the law is that he who alleges must prove same. In the case of Ababio v Akwasi III [1994-95] GBR 774 at 777 Aikins JSC (as he then was) expounded the position as follows: “The general principle of law is that it is the duty of a plaintiff to prove his case, i.e., he must prove what he alleges. In order words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue, the plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this he wins; if not, he loses on that particular size.” The erudite judgment of Ollennu J (as he then was) in Majolagbe vs Larbi [1959] GLR 190 always gives guidance to the courts on how the burden of proof is discharged: “Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true.” It is essential to establish the burden of proof in this matter. As is trite learning, the Applicant bears the evidential burden to evince sufficient evidence if he is to secure a ruling on the existence or non-existence of a fact. [5] Issue of Applicant’s Capacity The Respondent in opposing the present application challenged the capacity of the Applicant and Counsel. The Respondent deposed as follows: “That neither the Applicant nor her Counsel has capacity to institute or file the motion herein.” The Applicant deposed that “that I am the widow of Edward Kwaku Yeboah (deceased) and there are 2 children between us, both of full age.” SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 13 of 35 The Applicant in a supplementary affidavit filed on 28th February 2024 deposed as follows: “That I depose to this supplementary affidavit in specific reaction to the affidavit in opposition filed by the Respondent. That I deny paragraphs 5 and 6 of the Affidavit in opposition. That attached hereto and marked Exhibit “SJAS 1” is a copy of a statutory Declaration sworn to by the Head of Family of the family of my deceased husband attesting to the fact that I am the surviving spouse of my husband. That I am advised by Counsel and verily believe same to be true that I have the capacity to mount the instant suit and to instruct Counsel accordingly.” The Respondent in his written submissions filed on 17th July 2024 stated that “My lady, the Applicant per paragraph 5 of her affidavit in support of her application for reasonable provision she alleges to be the wife of the deceased married under customary law which same is vehemently denied.” The Respondent refers to S1 of PNDCL 112 and concludes that “My Lady the effect of PNDCL112 was promulgated to facilitate proof of the existence of a customary law marriage especially in respect of inheritance and succession matters and to assist in keeping track of the number of customary law marriages existing in the country.” Capacity is fundamental and goes to jurisdiction of an individual to act in a case. To that extent, Respondent states that the Applicant has not demonstrated to this Court any sufficient evidence that she is the wife of the deceased. The Respondent states that “the Applicant has attached self-serving documents such as the funeral brochure and a statutory declaration exhibited as Exhibit SJAS 1 which are not sufficient evidence and cannot be relied upon by this Court…It is instructive to note that the said Abusuapanin Nana Kwasi Asiedu who depose to the statutory declaration (Exhibit SJAS 1) is not the head of family of Adamu Yanko Royal Aduana family, consequently the said person cannot validly hold himself as the head of family.” Counsel for Applicant Bright Okyere-Adjekum in his written submissions filed on 4th March 2024 addressed the issue of capacity thus: SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 14 of 35 “My Lady, respectfully the case of the Applicant is well encapsulated in her Affidavit in support of the Application as well as her Supplementary Affidavit. It is the case of the Applicant that she is the widow of Edward Kwaku Yeboah (deceased) and there are 2 children between them, both of full age. The Respondent, a Lawyer, is the Executor of the Will of the Applicant’s deceased husband. Exhibits ‘’JAS 1’’ and ‘’JAS 2’’ attached to the Affidavit in Support are copies of the death certificate and funeral brochure which contains Applicant’s tribute as a widow.” In rebuttal of the Respondent’s challenge to the capacity of the Applicant, Applicant in her Supplementary Affidavit has placed before the Court a Statutory Declaration deposed to by the Head of Family of her husband attesting to her capacity as surviving spouse of the deceased. This Court agree in principle with Respondent that capacity is fundamental and crucial in every matter. It is trite that where the capacity of a person to sue is challenged she has to establish it before her case is case is considered on its merits. See Asante-Appiah vs Amponsah alias Mansah [2009] SCGLR 90 @ 95 where the Supreme Court speaking through Brobbey JSC (as he then was) stated as follows: “The relevant rule applicable to the instant case , is that where the capacity of a person to sue is challenged, he has to establish it before his case can be considered on its merits. In the instant case, the defendant challenged the capacity of the plaintiff right from the inception of the trial. The challenge was explicit in the first paragraph of the statement of defence and in the cross- examination of Nana Twum Barima.5” See also Coleman v Tripollen & Ors [2014] 70 GMJ 20 CA; per Mariama Owusu JA. In the case of Standard Bank Offshore Trust Company Ltd vs. National Investment Bank Ltd [2017-2018] 1 SCGLR 707, Benin JSC delivered himself thus: 5 Justice Alexander Osei-Tutu at page 107 of his book, Contemporary & Evolving Issues in Civil Procedure and Litigation posits as follows “It is common knowledge that capacity is a fundamental legal principle in the commencement of any suit, the lack of which strips a plaintiff of his or her locus.” SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 15 of 35 “A person’s capacity to sue, whether under a statute or rule of practice, must be found to be present and valid before the issuance of the writ of summons, else the writ will be declared a nullity. In the case of a company, it’s authority to bring a lawsuit is one of capacity and not standing. Capacity to sue is a very critical component of any civil litigation without which the plaintiff cannot maintain any claim. The issue of capacity to sue has been the subject of several writings, commentaries and court decisions, such that every practitioner of the law should consider it before preparing a case for court…It must be emphasized that the capacity to sue must be present before the writ is issued; such authority must appear in the endorsement and/or statement of claim accompanying the writ; it cannot be acquired whilst the case is pending; and an amendment cannot be sought to introduce it for the first time. A writ that does not meet the requirement of capacity is null and void. Nullity may be raised at any time in the course of the proceedings, even on a second or third appeal”6. See also the case of Fosua & Adu-Poku v. Adu-Poku Mensah [2009] SCGLR 310 per Ansah JSC (as he then was): “The Supreme Court considers the question of capacity in initiating proceedings as very important and fundamental and can have a catastrophic effect on the fortunes of a case”. And per Dotse JSC (as he then was) “Want of capacity is a point of law which, if raised, goes to the root of the action”. Was the Applicant able to establish that she is the surviving spouse of the deceased? What was the nature of the affidavit evidence? In this case and as stated above, the Applicant averred that she is the surviving spouse of the deceased. Thus, the foundations by which she commenced the present application 6 See the case of Alfa Musah vs Dr Francis Asante Appeagyei [2018] DLSC 475: Ebusuapanin Yaw Stephens vs Kwesi Apoh [(2018) DLCA 6178 SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 16 of 35 hinges on her assertion that she is the surviving spouse of the late Edward Kwaku Yeboah. It is this assertion that the Respondent has challenged. So in the circumstances of this case, the Applicant has to prove that she is the surviving spouse of the deceased. In proof of her capacity, the Applicant relies on a statutory declaration by the deceased head of family affirming the Applicant’s status as the surviving spouse of the deceased. The funeral brochure contains the Applicant tribute to the deceased as the surviving spouse. The Respondent states that the head of family lacks that capacity and the Applicant’s documents are self-serving. The Applicant’s capacity having been challenged by the Respondent, what did she do in proof of her capacity? Was the evidence she led sufficient to prove the capacity by which she instituted the action? I think that I can answer the above question affirmatively. Having analysed the affidavit evidence led by the Applicant, I am satisfied that the Applicant has led sufficient evidence on the balance of probabilities to show that she is the surviving spouse of the deceased. I hold that the Applicant has successfully proved her capacity and is entitled to prosecute the application in that capacity. I now proceed to determine other issues. [6] The Procedure adopted However Order 66 of CI 47 which regulate the conduct of most administration actions, provides specific instances where an action should commence by writ, see specifically action for proving the validity/invalidity of a will, action for the revocation of probate or letters of administration, Order 66 rules 26, 27, 28 and 29 of CI 47. The same Order 66 provides other modes of instituting legal procedure, i.e. originating motion on notice etc. In instances where Order 66 requires a particular relief to be determined through the issuance of writ of summons, the rules are explicitly stated. Order 65 provides petitions as a mode of instituting legal proceedings under that specific order. The present application being an originating motion on notice is not rendered a nullity merely because the Applicant failed to issue a writ for the specific relief sought in the application. SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 17 of 35 Order 19(2) of CI 47 provides as follows: 1. Applications to be made by motion … (2) Proceedings by which an application is to be made to the Court or a Judge of the Court under any enactment shall be initiated by motion and where an enactment provides that an application shall be made by some other means, an application by motion shall be deemed to satisfy the provision of the enactment as to the making of the application. The Applicant is not challenging the grant of probate or validity of the will, or revocation of same. All the Applicant is asking is for reasonable provision under Section 13 of Act 360. In the considered opinion of the court, the originating motion on notice is appropriate mode of invoking the jurisdiction of the court. In any case the enactment, Administration of Estate Act, 1961, Act 63 and as well as the High Court Civil procedure rules, 2004, Order 66 does not state that the jurisdiction of the court can only be invoked by the issuance of a writ. With due deference to Counsel for Respondent, the Court is of the view that, Counsel has misinformed himself of the interpretation of contentious probate matter. Per order 66 rule 32 of CI47, the type of action stated excludes the present application. Contentious probate matter covers actions for the grant of a probate or letters of administration, revocation of a grant or the pronouncement of validity of an alleged will which may be action either contentious or not common form probate business. I am enjoined by Order 1 rule 2 of CI 47 to interpret and apply the rules so as to achieve speedy and effective justice, avoid delays and unnecessary expense, and ensure that as SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 18 of 35 far as possible, all matters in dispute between parties may be completely, effectively and finally determined and multiplicity of proceedings concerning any of such matters avoided. Counsel for Respondent has failed to point me in the direction of statute or case-law which has been breached by the Applicant by filing the present application and my own industry has failed to unearth such an authority. For the above-mentioned reasons, the challenge to the procedure adopted is dismissed. I now proceed to review and consider the arguments of Counsel in relation to the merits or otherwise of the instant application7. [7] Court’s Analysis and Opinion [7.1] The scope of an application for reasonable provision under S 13 of the Wills Act, 1971, Act 360 S13 of the Wills Act, 1971, Act 360 provides as follows: 13. Provision for dependants (1) If, on an application made, not later than three years from the date on which probate of the will is granted, the High Court is of the opinion (a) that a testator has not made reasonable provision whether in life or by will of the testator for the maintenance of a father, mother, spouse or child under eighteen years of age of the testator, and (b) that hardship will be caused, 7 Coram Dadson J in the case of In the matter of the estate of Martin Kofi Boadu (decd) and in the matter of an Application by Isaac Obeng Boadu for the distribution of the residuary estate of Martin Kofi Boadu under Section 105 of Act 63 (Suit No: PA/1254/2020 ) delivered on 26th April 2021 SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 19 of 35 the High Court may, taking account of the relevant circumstances, despite the provisions of the Will, make reasonable provision for the needs of the father, mother, spouse or child out of the estate of the deceased. (2) Without prejudice to the generality of subsection (1), the reasonable provision may include (a) payment of a lump sum, whether immediate or deferred, or grant of an annuity or a series of payments, and (b) grant of an estate or interest in immovable property for life or a lesser period. The general rule therefore, is that the Court has no power to redraft a Will, or add words to it. The duty of the Court is to construe the Testator’s Will in accordance with the established rules of construction and not to make a new Will for him. To relieve the family of the testator from unwanted hardship, Section 13 of the Wills Act, 1971, Act 360 was enacted. This section confers a limited power on the court, “notwithstanding the provisions of the Will”, to make a reasonable provision for the needs of the testator’s parents, spouse or children under 18 years of age out of his estate, where the testator had failed to make adequate provision for them. Before exercising this special power, however, the Court must be satisfied: a) That the applicant is a dependant of the testator; b) That the application has been brought within three years after the grant of probate of the will c) That the testator failed, either during his lifetime, or by his will, to make reasonable provision for the applicant; d) That the applicant is suffering, or likely to suffer hardship; and e) That having regard to all the relevant circumstances the applicant is entitled to support out of the estate of the testator. SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 20 of 35 In the case of In Re Anim-Addo (Decd); Nkansah Alias Anane And Another vs Amomah-Addo And Another [1989-90] 2 GLR 67, the scope of Section 13 of the Wills Act was discussed: “Facts: S 13 of the Wills Act, 1971 (Act 360) provides that: 13.(1)If, upon application being made, not later than three years from the date upon which probate of the will is granted, the High Court is of the opinion that a testator has not made reasonable provision whether during his lifetime or by his will, for the maintenance of any father, mother, spouse or child under 18 years of age of the testator, and that hardship will thereby be caused, the High Court may, taking account of all relevant circumstances, notwithstanding the provisions of the will, make reasonable provision for the needs of such father, mother, spouse or child out of the estate of the deceased.” The widow of the testator brought a motion under section 13 (1) of the Wills Act, 1971 (Act 360) in the High Court, Accra praying the court for an order for financial provision to be made for herself and for her infant son aged eight. Counsel for the executors of the estate, the respondents, raised a preliminary objection that the application was not properly before the court because it could only be brought under section 13 (1) of the Act when probate had been granted and that was yet to be done. It was also contended that as the executors had no access to the properties to enable them execute any orders that the court might make, the application was premature and the court had no power to consider the application. Held, dismissing the preliminary objection: when an executor was appointed by a will, he derived title from the will and the property of the deceased vested in him from the moment of the testator’s death, so that probate was said to have relation to the time of the testator’s death. Section 13 of the Wills Act, 1971 (Act 360), had its purpose: it was to warn beneficiaries and other persons claiming any interest in the estate of the testator or under the will to come forward within three years before SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 21 of 35 the estate was shared out. Executors, unlike administrators, derived their power under the will and not from the grant of probate or letters of administration. The instant application for reasonable provision under section 13 (1) of the Act was therefore properly before the court and the court had power to entertain it even before the grant of probate. In the case of In Re: Allotey (Decd); Allotey & Anor. vs Otoo & Anor {1981} GLR 393 the Court held as follows: On 9 September 1965, A made a nomination under the Pensions Ordinance, Cap. 30 (1951) Rev.), by which he apportioned his gratuity equitably amongst his three children born at the time. Subsequently he had two children with a second wife. The deceased made no alteration or amendment in the nomination paper. In the instant application for an order of variation of the nomination to enable all the five children to share the gratuity equally, counsel argued on behalf of the applicants that an analogy should be drawn between a nomination paper and a will since both were to take effect after death. He argued that since the court was empowered under section 13 (1) of the Wills Act, 1971 to make reasonable provision for the maintenance of dependants who had not been catered for, the nomination paper should be varied to include the two children left out. The three nominated children resisted the application on the ground that such an order for maintenance should be made from other estate of the deceased. Held, dismissing the application: (1) the Pensions Ordinance, Cap. 30, under which a public officer had a discretion to make nominations in respect of his gratuity, did not give any discretion to the court to tamper with or vary the specific nominations of the deceased public officer. The applicants should therefore seek relief under section 17 of the Ordinance as amended by section 10 of the Pensions and Social Security (Amendment) Decree, 1975 (S.M.C.D. 8). SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 22 of 35 (2) Where a court found out under the discretionary powers given it by the Wills Act, 1971 (Act 360), that no reasonable provision had been made for the maintenance of the dependants of a deceased person, the liability to make such provision for maintenance was in the same position as any other charge lawfully imposed on the estate. But where specific bequests had been made and there was residue then it would be ideal to make such statutory provision from the residue. A gratuity did not form part of the estate upon which the provision for maintenance under Act 360, s. 13 (1) could be charged. The position of an applicant under section 13 (1) of Act 360 was the same as any other creditor of the estate. The amount should be levied upon a fund which was attachable; a gratuity was not attachable. In the view of the court the exception made for maintenance under Cap. 30, s. 12 (2) should be in respect of gratuity which had not been granted to anyone by the deceased and had been paid to a successor or an administrator. Dictum of Vaisey J. in In re Simson (Decd.); Simson v. National Provincial Bank Ltd. [1950] Ch. 38 at pp. 44-45 cited. In the case of Akua Marfoa vs Margaret Akosua Agyeiwaa, Civil Appeal NO. J4/42/2012, 9TH November 2016, (unreported) Yaw Appau JSC (as he then was) delivered himself thus: The testator did not make any provision at all for one of his two wives in the said will though he did provide for the three children he begat with the said wife. This wife happens to be the Appellant herein. Being aggrieved after she had unsuccessfully challenged the validity of the will in the High Court, Appellant applied to the High Court, praying the court to make reasonable provision for her out of the estate of her late husband since she was not mentioned at all in the will. She did so on the authority of the Wills Act, 1971 [Act 360], particularly section 13(1) and then article 22 (1) of the 1992 Constitution... Article 22. (1) of our Constitution, 1992 also provides: “A spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died having made a will.” SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 23 of 35 From the above provisions of the Constitution, 1992, there is no doubt to the fact that the principles governing actions for claims under article 22 (3) are different from those governing actions under section 13 (1) of the Wills Act and article 22 (1) of the 1992 Constitution. While a claimant under article 22 (3) (a) and (b) must establish that the property in question was jointly acquired during the marriage without the need to prove contribution in any form in order to succeed, an applicant under section 13 (1) of Act 360/71 and article 22 (1) of the 1992 Constitution need not do so. What such an applicant needs to do is to show or establish that: 1. he/she was a surviving spouse; 2. he/she was dependent on the deceased spouse during the deceased’s lifetime; 3. the deceased spouse died testate but made no provision for him/her either in his/her lifetime or in the will; 4. he/she is likely to suffer hardship as a result of the testator’s failure to make any provision for him/her. There is no need for such a spouse to establish that the property, from which the reasonable provision is made, was jointly acquired during the marriage. The Appellant, in her application before the trial court, did not indicate where she lives or stays to make a living, the work she does, her age, whether she is in any other difficulty apart from where to live or stay any time she goes to Akokoaso, etc. As the Court of Appeal rightly found, not much was placed before the trial court in the form of affidavit evidence to merit the orders the court made. The trial court, during its ruling, did not demonstrate that it considered any relevant circumstances arising out of the application before it as the basis or foundation for its orders. To borrow the words of Gbadegbe, JA (as he then was), it appeared the trial judge proceeded with the matter, “as though the mere absence of a testamentary provision for the applicant in a case where her rival was provided for justified him in making an intervention under the law”. The trial court had it all wrong. SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 24 of 35 The jurisdiction conferred on the Court in Ghana by Section 13 of the Wills Act is limited, and it is to be exercised with circumspection, for the court is required “to take account of all relevant circumstances notwithstanding the provisions of the will”. What are the “relevant circumstances”? Lord Greene M. R. said In Tomkins vs Tomkins “When I say ‘relevant’, I mean this, so nearly touching the matter in issue as to be such that a judicial mind ought to regard it as a proper thing to be taken into consideration.” Under Section 13 the Court is required to consider facts which are so connected with, or related to the matter under investigation, as may assist in determining the application before it. This may include the means of the applicant as well as his or her behavior towards the deceased. The critical tests that the Court may apply in this matter are: a) Whether the applicants belongs to the class of persons specified under S 13(1) b) Whether it was unreasonable for the testator to have made no provision for the applicants c) Whether the estate is substantial enough to justify an order under sub-section 2 of Section 13. Azu Crabbe in his invaluable book LAW OF WILLS IN GHANA stated at page 110, paragraph 2 as follows: “… The rest(sic) whether the testator had not made a reasonable provision is an objective one, and a Court of Appeal will seldom interfere with the decision of the trial Judge, unless it can be demonstrated that the trial Judge misapprehended the facts, or some question of principle is involved, or where serious injustice would occur without reassessment of the law and the facts.” SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 25 of 35 The question of what constitutes dependency under Section 13 of the Wills Act was succinctly addressed by the Court in the case of Humphrey Bonsu and Another vs Quaynor and Others [1999-2000] 2 GLR 781. The Court held as follows: “Although Act 360 did not define when dependency might arise, it would not be wrong to suggest that in the case of a child, if the evidence established that he or she relied on his or her parent wholly or in part for his or her means of subsistence, then a dependency would have been established; but in the case of a father or mother of a deceased, the evidence had to establish that they were, or either of them was, substantially dependent on the deceased testator. Gifts given to one’s parent occasionally would not therefore qualify the parent as a dependant. However in the case of a spouse the court would have to examine the extent of his or her earnings, earning capacity and contribution to the upkeep and maintenance of the other and if the surviving spouse was contributing more than the deceased or even in equal shares with the deceased, a dependency would not arise. In the instant case the evidence was overwhelming that P until his demise maintained the first plaintiff and the children while they lived together and that during their separation he continued to maintain the second and third plaintiff but his maintenance allowances to the first plaintiff was irregular. Yet since it was P himself who refused to allow the first plaintiff to return to the matrimonial home and thereby created the situation that enabled him to shirk his responsibility to the first plaintiff, the law would not permit him to say that because he was not maintaining the first plaintiff regularly, the latter was not his dependant. In other words, the deceased having created the situation that enabled him to abandon his responsibility in a large measure, was not legally absolved and would consequently be held responsible for the maintenance of the first plaintiff, a pensioner with no significant source of income, even after the separation. Dictum of Lord Robson in New Monckton Collieries, Ltd v Keeling [1911] AC 648 at 662, HL; Re Styler; Styler v Griffith [1942] Ch 387 at 389; In re Pugh (Decd); Pugh v Pugh [1943] Ch 387 at 385; Re Inns (Decd); Inns v Wallace (1947) 1 Ch 576 at 580-581 and Jeley v Iliffe [1981] 3 All ER 29, CA applied.” SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 26 of 35 [8] Issues [8.1] Whether the Applicant is the surviving spouse of the Deceased The key question to answer is whether the Applicant belongs to the class of persons specified under S 13(1) of the Wills Act. Having found that the Applicant is a surviving spouse of the deceased she is seized with the requisite capacity to bring this application. The Court finds that Applicant falls within the category of persons specified under Section 13 of the Wills Act. [8.2] Whether the deceased Testator died testate but made no provision for Applicant either in his lifetime or in the will; It is not in dispute that the deceased Edward Kwaku Yeboah died testate on 27th April 2021 Indeed the deceased left a Will dated 15th January 1990 and the Will was admitted to probate on 11th October 2023. The Court has carefully reviewed the Will and no devise or bequest has been made in favour of the Applicant in the Will. No evidence has been placed before the Court to suggest that the deceased Testator in his lifetime made provision for the Applicant. [8.3] Whether the application has been brought within three years after the granting of probate of the will The deceased died testate died testate on 27th April 2021. The deceased left a Will dated 15th January 1990 and the Will was admitted to probate 11th October 2023. The present application was filed on 2nd February 2024. I find that the application was brought within 5 months of the grant of probate fulfilling that criterion. [8.4] Whether the Applicant was dependent on the deceased during the deceased’s lifetime and was likely to suffer hardship as a result of the testator’s failure to make any provision for her? SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 27 of 35 In the case of Akua Marfoa V. Margaret Akosua Agyeiwaa, Civil Appeal No. J4/42/2012, 9th November 2016, Baffoe-Bonnie JSC delivered himself thus: “We think that this claim is unfounded and seeks to defeat the whole purpose of section 13(1) of the Wills Act. The High Court has the authority to make such orders which will cause changes to be made in the testator’s will, however as admitted earlier, the exercise of such authority should be guided, and with the sole purpose of preventing great hardship from befalling the Appellant. The Court of Appeal conceded that the Wills Act permitted the rewriting of a testator will to make provision for certain categories of people, but opined that in a matter under section 13(1) of the Wills Act, the parties must place before the trial court all the “relevant circumstances”. However, they found that those facts were absent and so the trial Court’s decision was based on speculations. Gbadegbe J.A (as he then was) made the following statements: “In this regard, the requirement of placing all the facts before the court that might indicate the Appellant’s needs in terms of bare necessities and other requirements of a decent standard of living become relevant in order to assist the court to consider the extent and mode of its interference as provided in sub-section 2 of section 13. Where, however, these vital facts are absent as was the case in the court below then the court is precluded from a fair determination of the discretion available to it. I venture to say that on the materials before the court below on which the decision on appeal is based the determination made was without regard to the “relevant circumstances” and may thus be said to be based purely on speculation and or conjecture, a situation that defeats the clear statutory intention discernible from the enabling section”. The learned Justices were of the opinion that the Appellant should have shown in her affidavit all relevant circumstances which included: a. her current means of support and income (if any) b. her previous means of support during the lifetime of the deceased testator SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 28 of 35 c. how she was maintained in the past d. her special needs such as nursing and or medical care to be provided for beyond that which is normally required for an ordinary person (if any) e. her age f. her requirements in monetary terms The respondent as the administrator of the estate also had the responsibility of presenting to the court the particulars of the net value of the assets and indicate whether there are income earning assets. She should have also shown the quantum of the liabilities to be discharged. As well as the full particulars of the beneficiaries and any other facts that are likely to affect the court in the exercise of its discretion. We agree that this was the proper thing to be done and it would have made the work of the trial court easier. That notwithstanding, we think a greater part of “the relevant circumstances” were deposed in the affidavit evidence and some reasonable inferences could also be made from the available evidence and the will, which provided enough facts for the trial Judge to rely on in order to make his determination”. The power given to this Court to provide reasonable provision out of the Will of the deceased, Edward Kwaku Yeboah is a discretionary one, to be exercised in accordance with law. In the Marfoa case cited supra ample guidelines have been provided to guide this Court in the relevant circumstances to consider when exercising its discretionary power. I therefore proceed to examine the Applicant’s Affidavit evidence in line with the following criteria: a. The Applicant’s current means of support and income b. The Applicant’s previous means of support during the lifetime of the deceased testator c. How the Applicant was maintained in the past SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 29 of 35 d. The Applicant special needs such as nursing and or medical care to be provided for beyond that which is normally required for an ordinary person (if any) e. The age of Applicant f. The Applicant requirements in monetary terms The Applicant must provide the above information through her affidavit evidence for the consideration of the Court. N. A. Josiah Aryeh in his Article Family Provision in Ghana’s law of Succession on factors to consider in an application under Section 13 of Act 360 opined as follows: “It is submitted that 'needs' are endless and of infinite variety. The judge need not be an idle armchair ruminator of the details of the differences between the parties but must actively probe into the circumstances of the applicant on the basis of practicality. Applying a practical test, the court ought to draw a distinction between 'essential needs' and 'other needs'. The former should reflect such basic needs as shelter, food, clothing, furnishing, education, health and disability. 'Other needs' may range from the 'superfluous' to the 'luxurious'. These need not grip and occupy the attention of the court to the same degree as the previous class of needs; their desirability may well depend on the court's construction of "all relevant circumstances". It is suggested that 'relevant circumstances' should include the domestic circumstances of the applicant prior to the decease of the spouse, parent or child. The husband's death frequently leaves the widow to run the household in reduced circumstances. Where the estate include income-yielding property 'reasonable provision' to the widow to meet recurring household expenses is to be recommended. In making 'reasonable provision' to surviving children, degree of minority, disability and education ought to be essential considerations. For parents, health and current income should be vital factors. Greater difficulty arises as to whether the courts should adopt an objective or subjective approach in determining whether, given the circumstances of the deceased and facts known to him, he had SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 30 of 35 made reasonable provision for dependants. Applying a subjective standard, it would appear that only circumstances known to the deceased or reasonably foreseeable by him can be taken into account; and that circumstances and events occurring after his death should be left entirely out of account unless they were reasonably foreseeable by him. However, upon the application of an objective standard, account may be taken of circumstances that became apparent either at the deceased's death or afterwards. In regard to the two approaches, the following English cases are particularly pertinent: Re Styler and Re Goodwin, Morton J said in Re Styler (p. 389): “I do not think that a judge should interfere with a testator's dispositions merely because he thinks that he would have been inclined, if he had been in the position of the testator to make provision for some particular person. I think that the court has to find that it was unreasonable on the part of the testator to make no provision for the person in question or that it was unreasonable not to make a larger provision”. On the other hand, the objective approach was pressed by Megarry J in Re Goodwin (at p. 287): The question is simply whether the will or the disposition has made reasonable provision and whether it was unreasonable on the part of the deceased to have made no provision or no larger provision for the dependant. A testator may have acted entirely reasonably; and he may have taken skilled advice on the drafting of his will, intending to make a fully reasonable provision; and yet through some blunder of the draftsman (perhaps as to the incidence of estate duty) or by some change of circumstance unknown to the testator in his lifetime, the provision in fact made, may have been wholly unreasonable. Conversely, the testator may have acted wholly unreasonably in deciding what provisions to insert in the will, but by some happy accident, such as the lapse of a share of residue which then passed to the widow as on intestacy, the provision in fact made may be entirely reasonable. In my judgement the question is not subjective but objective. It is not whether the testator stands convicted of unreasonableness, but whether the provision in fact made is reasonable. The weight of English authority, including the opinion of Denning M.R. in Millward v. Shenton favours the objective approach; from that standpoint the court takes account of SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 31 of 35 circumstances of which the deceased was not aware, could not reasonably have foreseen or about which he was simply mistaken8. … Thus the court placed the onus of proving 'hardship' upon the applicant. He is required to adduce sufficient documentary evidence of his own needs, and to prove further that in the absence of provision out of the estate of the deceased he would suffer 'hardship'. By the court's formulation the attention of the judge is limited solely to matters contained in affidavit evidence. This, in turn, requires diligence on the part of the applicant in compiling an inventory of proven and provable needs. The court is not in an inquisitorial position, relying as it does on the idea that each party ought to prove his own case. The proof of 'needs' is dependent not only upon close relationship with the deceased, but even more critically upon the condition and circumstances of each applicant”. In the present case there is no gainsaying considering the age of the Applicant that she was dependant on the deceased for her upkeep and the lack of reasonable provision in the deceased Testator Last Will and Testament would create hardship for her. Counsel for the Applicant states it succinctly as follows: “My Lady, the key test to satisfy by any father, mother, spouse or child under eighteen years of the testator where the testator fails to make reasonable provisions by his will is whether or not hardship will be caused. My Lady, it is significant to note that the only place of abode of the Applicant indeed is her matrimonial home in Dansoman-Accra where in fact the Applicant lived with the deceased for over 40 years. We also submit that the Applicant had made some extensive renovations to the matrimonial home. Therefore, it is our submission that the Applicant will be rendered homeless and will visit her untold hardship if the Honourable Court does not make reasonable provision in that regard. Section 13(2) (b) empowers the Court to grant a life interest in the matrimonial home in favour of the Applicant. 8 SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 32 of 35 My Lady we further submit in any event that the Applicant is a dependent of the testator, for the over 45 years marriage of the Applicant to the deceased in his lifetime, the Applicant had depended on the deceased. It was the deceased in his lifetime who mainly provided for the Applicant until his demise in the year 2021. The Respondent has not contended otherwise or alleged that the deceased made reasonable provision in his lifetime for the Applicant to justify leaving her out of his Will.” The Applicant depose that presently her monthly needs amount to GHC4,340.00 whereas her children provide an amount of GHC4,000.00 for the upkeep of the Applicant. Applicant’s major need from her depositions is accommodation. Applicant contends that she assisted with the deceased care from 2015 to 2021 when he died. She further contends that “That after my husband was taken ill in 2015 which led to his ultimate demise in 2021, I took up the care of the house and did extensive renovations to the house.” This deposition flies in the face of the Applicant’s position that she was solely dependent on the deceased. There is sufficient evidence on record that the Applicant was married to the deceased for over 40 years. However this Court is of the considered view that the Applicant as dependent of the estate of the deceased testator qualify as beneficiary for reasonable provision under the deceased testator’s Will as it accords with the tenets of the 1992 Constitution, the Wills Act and the jurisprudence of the Superior Courts of Ghana. The Respondents did not provide the Court with information on the residue of the estate of the deceased. The Court is not seized with information on the balances standing to the credit of the deceased at the time of his death and other particulars of his estate. Clause 3 of the Will is on the property located at Dansoman. The Applicant is 69 years and has lived in the property the subject of the deceased Testator’s Will during the pendency of the marriage per available affidavit evidence. SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 33 of 35 Other relevant circumstances as to the description and size of the house devised in the Will, the occupants of same, whether it is wholly residential or partly commercial have all not been placed before the Court. What are the names of Applicant’s children and were they catered for in deceased’ will the Court is not told. The Court’s only recourse is to draw the necessary inferences from the affidavit evidence available on record and consider the type of orders it can make within the scope of Section 13(2) of Act 360. S 13(2) of Act 360 states as follows: (2) Without prejudice to the generality of subsection (1), the reasonable provision may include (a) payment of a lump sum, whether immediate or deferred, or grant of an annuity or a series of payments, and (b) grant of an estate or interest in immovable property for life or a lesser period. The Court can make the following orders: Payment of lump sum, grant of annuity and series of payment and grant of an estate or interest in immovable property for life or a lesser period. This Court considering all the relevant factors in consideration grants the application filed on 2nd February 2024 as follows. Taking into consideration the accommodation needs of the Applicant as well as other relevant considerations I make the following order: I therefore permit the Applicant to occupy the rooms in House No:86, Kekeli Street, Dansoman Estates, Accra in which she lived at the time of the testator’s death for 5 years from today after which the property shall revert to the devisee’s under the Testator Will. But no order as to cost. (SGD) H/L EUDORA CHRISTINA DADSON (MRS) SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 34 of 35 JUSTICE OF THE HIGH COURT SUIT NO: PA/0314/2024 – ESTATE OF EDWARD KWAKU YEBOAH, SECTION 13 OF ACT 360 – JUDGMENT Page 35 of 35