My step-mum wants to take our property
Dear Mirror Lawyer, My late father left behind a will before he died. The will was read at one of our family meetings. When my late father’s lawyer read the will, my mum and I had a greater share of my late father’s property.
Advertisement
My step-mum wants to contest the will and is now telling anyone who will listen that my father’s two best friends who witnessed the will have told her that they did not know that the document was a will.
She said the witnesses also told her that my father’s signature was already on the document and that my father merely told them that the signature was his. I am really confused now, please help me. I don’t want my mother and I to lose our share of the property.
Kwame Nimo, Okaishie, Accra
Dear Kwame, sorry for your loss. Death is one of the inevitable things in life. A person may die testate or intestate. Testate is where a person dies leaving a valid will and intestate is where the deceased does not leave a will. In your case, your father died testate, meaning he died leaving behind a will.
For a will to be considered valid, it has to be made or acknowledged in the presence of at least two competent attesting witnesses by the testator. It is not sufficient to say that the will was signed by the testator in this case your late father.
Your late father need not sign in the presence of his two friends if he signed the will himself. It is enough if he signed or he acknowledges his signature in the presence of the two attesting witnesses. If your father was instructing another person to sign for him, then that third person’s signature must be made in the presence of your father and the two attesting witnesses as provided in section 2(4) of the Wills Act.
Concerning the witnessing of the will, section 2 (3) of the Wills Act, 1971 establishes that “The signature of the testator shall be made or acknowledged by him in the presence of two or more witnesses present at the same time. Since the acknowledgment is of the signature and not of the will, it has been held that it does not matter that the witnesses do not know that it is a will.
Suffice it to say, section 2(3) of the Wills Act, only requires that the ‘signature’ and not the will itself be witnessed. It is needless for the acknowledgment of the signature to take any format; it may be by the mere gesture. There cannot, however, be an acknowledgment of the signature unless the witnesses see it or have the opportunity of seeing it.
As indicated above, it is irrelevant for your father’s friends to know that the document is a will. In Norga v. Khadijatu, the Court of Appeal held that although attesting witnesses must be capable of attesting a legal document, they need not know that the document is a will. What they are required to acknowledge is the testator’s signature, not his will. However, it was held in Baksmaty v Baksmaty that assisted signature is sufficient if the testator is so ill that he is unable to sign the testamentary document without having his hand guided.
For signature by acknowledgment to be valid, these conditions are required;
The will must be signed before the acknowledgment.
The signature must be seen at the time of acknowledgment.
The signature may be acknowledged by words or conduct.
An unsigned will cannot be acknowledged by the testator.
It appears that your late father signed his signature in the absence of the witnesses at the time, it is not enough to say that your late father’s friends attested to the signature by signing their names. Your father should first acknowledge his signature to the two attesting witnesses who must sign in his presence.
In Yankah v Administrator-General, the court held that if it appears on the face of a will that it had been properly executed, the presumption by law is that the testator duly acknowledged it. Safe to say if you can even establish that your father saw them signing through a hole in the wall of the room in which his two friends were signing, then we can presume that he saw them signing. In that case, the will signed or acknowledged by the father would be valid.