Is my uncle’s will valid?
Dear Mirror Lawyer, I am writing to seek clarification regarding the will of my late uncle, Mr Kwame Asante.
He was a visually impaired man who passed away in 2023. Before his death, Mr Asante dictated his will to his neighbour, Mr Mensah, who wrote it down and read it aloud to him in the presence of two witnesses, Mr Osei and Mrs Adjei.
After confirming the contents of the will, Mr Asante placed his thumbprint on the document.
The two witnesses signed the will, but not in each other’s presence. Mrs Adjei also received a small gift in the will.
Recently, my cousin Esi has contested the will, claiming it is invalid because:
1. My uncle was visually impaired and could not verify the contents of the will.
2. The witnesses did not sign the will in each other’s presence.
3. Mrs Adjei, as a witness, received a gift under the will.
Could you please clarify whether these issues affect the validity of the will?
Yaw Anokye, Kumasi.
Dear Yaw, I understand the concerns raised regarding the validity of your uncle's will. After reviewing the relevant provisions under the Wills Act, 1971 (Act 360), which governs the creation and execution of wills in Ghana, I can provide the following analysis:
1. Visually impaired testator
Under Section 2(6) of the Wills Act, a visually impaired person can validly execute a will, provided that the contents are read and explained to them by a competent person.
The competent person must also declare in writing that the testator understood the will. In this case, Mr Mensah, a competent individual, read the contents of the will aloud to Mr Asante, who confirmed his understanding before affixing his thumbprint.
This process complies with the statutory requirements and is supported by judicial precedents, such as In Re Mensah (1978) GLR 225, where the courts emphasised the importance of ensuring that the testator’s intentions were accurately reflected.
2. Witnesses signing at different times
The Will’s Act requires all the witnesses to sign after the testator’s signature in his presence and in the presence of each other. In this case, because the two witnesses were not present at the same time to witness the testator's thumbprint, there is a legal infringement, which will affect the validity of the will. Though
Mr Asante was present when both witnesses signed at different times, the Act was not complied with as explained above. Judicial precedents, including Casson v Dade, affirm that the proper execution of a Will would be presumed unless there is compelling evidence of irregularity.
3. Gift to a witness
According to Section 3(4) of the Wills Act, any gift made to a witness who attests to a will is void, though this does not invalidate the entire will.
Therefore, although the gift to Mrs Adjei will fail due to its legal unenforceability, the remainder of the will remains valid. The courts will uphold the other bequests in the will, as long as the document was properly executed.
Conclusion
Based on the facts provided, Mr Asante's will appears to have been validly executed in accordance with the Wills Act, 1971 (Act 360). The concerns raised by your cousin Esi are partly valid and partly unlikely to affect the will's validity:
• The visually impaired testator's understanding of the will was confirmed in compliance with Section 2(6).
• The witnesses signed in Mr Asante's presence, but did not fulfil the requirements of Section 2(3) to be present at the same time.
• While the gift to Mrs Adjei is void under Section 3(4), the rest of the will remains valid.
As such, the court should set aside the will in its entirety.
