Wills
Rule against construing to non-effectuate to create intestacy
Governed by the Wills Act 1971 Act 360, section 13 on reasonable provision, it is only under this provision that the courts can interfere with the contents of a will, once the will of the testator is valid, it is interpreted strictly to the words used in the will unless overriding legal obstacles arise, while a strict interpretation is taken as to words, it is liberally interpreted in its form per Re Mensah (Deceased) Barnie v Mensah. There is no presumption that one is a beneficiary under a will and it is rebutted only under S 13 of Act per Turker v Harrison.
It must be interpreted within its four corners as near to the intention of the testator as expressed in the words but not what he ought to intend having regards to all provisions of the will and extrinsic evidence will not be allowed to supress the said intention, extrinsic evidence of his intention on the meaning of the words are not admissible per In Re Atta; Kwako v Tawiah. However, extrinsic material may at certain times be admitted to establish the person or object in the mind of the testator but not his intentions especially where without such will render disposition ineffective per In Re Ofner; Samuel v Ofner.
Two exceptions to extrinsic evidence admissibility is in equivocal latent ambiguity where a disposition to one refers to two or more persons and Armchair contemporaneous evidence as explanatory meaning testator assigned to words or persons per Charter v Charter. The courts should determine the intent of the testator as making a samansiw (customary will) or Act 360 Will as the two types of wills, and it’s determined by gleaning at document per Prempeh v Agyapong.
Where the nature of the object, thus shares from company which was converted to rental accommodation but testator failed to effect changes to the shares, changes into a similar object a liberal interpretation will be employed to achieve the purpose, thus shares construed as rental income, words be given ordinary meaning and modified only to avoid absurdity per strong>In Re Dadzie; Dadzie v Addison .
Where the words are clear, effect must be given it and so the age limit in S 13 of Act is strictly applicable notwithstanding the hardship it may cause but minority says it must be interpreted to effectuate common sense and justice per Hamphrey-Bonsu v Quaynor. Per Mensah v Anim Addo, extrinsic evidence of foreign law such as common law is inapplicable in a will’s construction but in the absence of a contrary intention one’s customary law is applicable.
Deeds and Documents
Nana Yaw Osei v GH Australian Goldfields sued company upon retirement on medical advice for damages because illness was occupational, medical report read ‘…developed during the course of work with GAG’, Wood JSC in overturning decision of HC affirming COA that the doc construed narrowly not whole by HC that work is synonymous with occupation so entitled to damages was error as broad and whole of doc, interpret near to mind and intention of maker as ascertained from whole doc with words given plain and natural meaning and within their context, reveals that during the course of work only means time within which illness emerged but fails to disclose the causation of the ailment as caused by nature or work he did at GAG.
Ascertaining intention: COA in Akim Akroso Stool v Akim Manso Stool what the words meant could only be derived from doc itself, function of court is to ascertain what parties meant by words used not what was intended to have been written, thus not permissive to make a guess, person not party to doc can’t seek an interpretation of the words therein
Biney v Biney COA 3 basic rules, 1-construction must be near to mind and intent of author of law, 2-intention be gathered from written instrument itself and 3-pre 1975 conveyancing, technical words of limitation be given their strict legal effect . Document be read as a whole.
1. On construction being near to intent of author: the literal meaning of the words must be used which may be modified to avoid absurdity. In Re Amartefio (Decd) Amartefio v Amartefio in seeking to strictly construe clause 6 of will providing for 20 pounds out of 100 to wife and rest of rent shared among children in 1947 when executed and 26 years later when it was 1440 pounds when being enforced, it will be absurd to construe it strictly that wife is entitled at all times to only 20 pounds as the intention of testator will be defeated. The ridiculousness is that if wife is given 20 pounds and children 80 pounds as total of 100 pounds as rent at time of execution, what then becomes of the rest after deducting from the accrued 1440 pounds? It will be consistent with intent to construe it to mean that wife is entitled to 20% of accrued rent in current times.
Also a word in doc may have a wider meaning having regard to context in which word is used. Per Impraim v Baffoe (supra) direction that house be occupied by certain specified members of his extended family and their children as a family house and house shouldn’t be sold. On the meaning of child, held that children in such a context could only make sense and give expression to testator’s intent if construed as including remoter issues of specified members of family.
In contrast, Addai v Donkor SC, ‘children’ means sons and daughters of a person, a devise by will to niece and after her death to her children, not grandchildren of niece.
2. On intention be gathered from written instrument: look at written expression of maker to ascertain intent, court can’t think for parties, Prempeh-supra HC erred in ascertaining intent from incomplete, unsigned and unapproved draft will which part can’t be traced, HC rather substituted its intention for testator,
Allan Sugar Ltd v Gh Export Co Ltd court not to rewrite agreement for parties by inserting terms beneficial but overlooked especially when it will interfere with 3rd party’s bargain, NIB two transactions of sale of irrigated farmlands one D right to use irrigation system and another with P silent on use of system, although events and surrounding circumstances could be considered in ascertaining intent of parties, once agreed into writing they will be held to the written and extraneous matter from subsequent negotiations not allowed, Monta-supra at the expiration of 1st 10 years lessee may determine lease upon 6 months’ notice, whether 6 months must be within period of lease or after expiration, at expiration be given ordinary meaning to mean at a particular time, lessee entitled to terminate at end of 10 years without any notice, as each doc is to be construed specifically, no precedence strictly exists in interpretation.
3. Technical words be given their strict technical meaning and effect: Monta-supra, Biney-supra heirs and assigns were technical words and meaning in pre-1881 is joint tenancy with sole child taking property absolutely, that English conveyancing law on 24th July 1874 heirs following purchase was sine qua non legal freehold or fee simple beneficiary, per Sydall v Castings Ltd since insurance scheme doc was prepared by lawyer ‘descendant’ defined as spouse, relation, ancestor or descendant, must be given technical meaning as legitimate blood line and so illegitimate son doesn’t qualify to benefit from insurance money upon death of employee, Denning dissenting that be given ordinary meaning as descendant has no binding authority pronouncement it can’t be a term of art and illegitimate son is a relation and must be entitled.
. Doc must be read as a whole in ascertaining true intent: Boateng v Volta Aluminium Co Ltd 4the termination of employment by one month’s salary in lieu of notice was lawful, although not in clause 3 of condition of service on which interpretation is sought, reading 4 clauses as a whole to make sense out of it in determining intent of parties, clause 1 make provision for such as alternative to giving one month’s notice.
Per Textile Co v Estate of Zolotov in construing contracts or covenants one oughtn’t confine to narrow literal interpretation but more liberal and extended, contemplating whole scope and object of deed to determine intent, per Najat Metal Ent Ltd v Hanson read doc as whole especially where apparent mistake in wording of doc, gov’t letter to institution to take over a group of companies which included Najat Co but listed as Najat Ltd, letter read as a whole to effectuate the intent reveals that Najat Ltd refers to no other entity except Najat Co.