ADMINISTRATION OF ESTATES - Letters of Administration - Persons entitled to
grant - Grant of joint letters of administration to widow and girlfriend or concubine of
deceased - Whether augurs well for smooth administration of estate In re Asante
(Decd); Asante v Owusu [1992] 1 GLR 119, CA
ADMINISTRATION OF ESTATES - Letters of Administration - Persons entitled to
grant - Intestate deceased married under Ordinance - Priority of grant - Court's
discretion in event of two or more in same degree of entitlement - Intestate deceased
married under Ordinance survived by widow and nine children eight of whom are minors
- Most of children born to women other than widow - Grant made to widow, adult eldest
son of deceased by another woman and customary successor - Application by mother
of two minor children to be joined as co-administratrix - Eldest son representing all
children in administration - No evidence of discrimination against applicant's children Whether trial judge exercising discretion properly in joining applicant - Marriage
Ordinance, Cap 127 (1951 Rev) - Administration of Estates Act, 1961 (Act 63), s 77(1) Probate and Administration Rules, 1991 (LI 1515), Order 2, rr 7 and 8. In re Asante
(Decd); Asante v Owusu [1992] 1 GLR 119, CA
IN RE ASANTE (DECD.); ASANTE AND ANOTHER v. OWUSU [1992] 1 GLR 119–
129
COURT OF APPEAL, ACCRA
2 APRIL 1992
ESSIEM, ADJABENG AND FORSTER JJ.A.
Administration of estates—Letters of administration—Persons entitled to grant—
Intestate deceased married under Ordinance—Priority of grant—Court’s discretion in
event of two or more in same degree of entitlement—Intestate deceased married under
Ordinance survived by widow and nine children eight of whom are minors—Most of
children born to women other than widow—Grant made to widow, adult eldest son of
deceased by another woman, and customary successor—Application by mother of two
minor children to be joined as co-administratrix—Eldest son representing all children in
administration—No evidence of discrimination against applicant’s children—Whether
trial judge exercising discretion properly in joining applicant—Marriage Ordinance, Cap.
127 (1951 Rev.)—Administration of Estates Act, 1961 (Act 63), s. 77(1)—Probate and
Administration Rules, 1991 (L.I. 1515), Order 2, rr. 7 and 8.
Administration of estates—Letters of administration—Persons entitled to grant—Grant
of joint letters of administration to widow and girlfriend or concubine of deceased—
Whether augurs well for smooth administration of estate.
HEADNOTES
On the death intestate of the deceased, KA, his widow whom he had married under the
Marriage Ordinance, Cap. 127 (1951 Rev.) and his adult eldest son by another woman
applied for letters of administration to administer the estate. In the supporting affidavit
they deposed that KA left behind the widow and seven children, six of whom were
minors. Of the seven children only three were children of the widow; the others had
different mothers. The application was [p.120] granted by the court but before the
letters of administration could be sealed one MO entered a caveat praying the court that
as mother of two of the infant children she should be joined as a co-administratrix in
order to adequately protect the interest of those two children, K and A. The applicants
opposed the application of the caveatrix on the ground that she had no locus standi and
therefore had no interest in the estate. Before a ruling could be given one P, a brother
and customary successor of KA, also applied to be joined as a co-administrator to
protect two other children of KA who were not mentioned in the application for letters of
administration. The trial judge ruled in favour of the caveatrix granting joint letters of
administration to the widow, the eldest son, P, and the caveatrix on the ground that as
mother of the two minors she was considered best suited to protect their interest as
their only parent and guardian. On appeal against the inclusion of MO as a coadministratrix,
Held, allowing the appeal:
(1) Order 2, r. 7 of the Probate and Administration Rules, 1991 (L.I. 1515) provided that
where the deceased intestate was married under the Marriage Ordinance, Cap. 127
(1951 Rev.) the order of priority for the grant of letters of administration should be: (1)
the surviving spouse; (ii) the surviving children; (iii) a surviving mother or father; and (iv)
the customary successor of the deceased. Order 2, r. 8 of L.I. 1515 in conformity with
section 77 (1) of the Administration of Estates Act, 1961 (Act 63) however limited the
number of persons to whom a grant could be made to four and further conferred a
discretion on the court, in the event more than one person was entitled to a grant in the
same degree, to make the grant to any one of those entitled to it without joining the
others. In the instant case, the caveatrix was not entitled to a share in the estate but
her children were. On the evidence, however, the deceased was survived by some
other children in addition to those he had with the caveatrix and the widow and whose
interest should also be taken into account in the grant of the letters of administration.
With the inclusion of the deceased’s eldest son, who was not a child of the widow, in the
grant to the widow and the customary successor, all the surviving children were
represented in the administration of the estate. Accordingly, in the absence of any
compelling reason on the evidence why another person should be added to represent
the surviving children of the deceased, such as that the widow and the eldest son of the
deceased would discriminate against the children of the caveatrix, the inclusion of the
caveatrix for the sole purpose of protecting her children was a wrong exercise of
discretion and she would therefore be excluded from the persons to whom the letters of
administration had been granted. Traboulsi & Co. v. Paterson Zochonis & Co. Ltd.
[1973] 1 G.L.R. 133, C.A. and Ballmoos v. Mensah [1984-86] 1 G.L.R. 724, C.A. cited.
Per Adjabeng J.A. If the trial judge was minded to exercise her discretion judicially,
then the logical thing was to order that each child with a different mother than the widow
should be represented in the administration by either his or her mother or by a
guardian. That, no doubt, would go against Order 2, r. 8(1) of the Probate and
Administration Rules, 1991 (L.I. 1515) as the administrators would be more than four. It
would also set the dangerous [p.121] precedent that once a woman has had a child with
a man that woman is entitled to join in the administration of his estate when he dies to
protect the interest of the child even though she was only a girlfriend.
(2) Difficulties might arise where a lawful wife (the widow) was joined together with a
girlfriend (the caveatrix) to administer the estate of their deceased husband and
boyfriend. Accordingly, the inclusion of the caveatrix might militate against the smooth
administration of the estate. In re Blankson Hemans (Decd.); Blankson-Hemans v.
Monney [1973] 1 G.L.R. 464 cited.
CASES REFERRED TO
(1) In re Blankson-Hemans (Decd.); Blankson-Hemans v. Monney [1973] 1 G.L.R. 464.
(2) Traboulsi & Co. v. Paterson Zochonis & Co. Ltd. [1973] 1 G.L.R. 133, C.A.
(3) Ballmoos v. Mensah [1984-86] 1 G.L.R. 724, C.A.
NATURE OF PROCEEDINGS
APPEAL by the appellant-widow from the decision of the High Court, Accra including
the caveatrix-mother of two infant children and concubine of her intestate deceased
husband among persons granted letters of administration to administer the estate of the
deceased intestate. The facts are fully set out in the judgments of Essiem and
Adjabeng JJ.A.
COUNSEL
Sam Okudzeto (with him Amegatcher) for the appellant.
D. O. Lamptey for the respondent.
JUDGMENT OF ESSIEM J.A.
The late Major (Rtd.) Kwame Asante died leaving a widow whom he had married under
the Marriage Ordinance, Cap. 127 (1951 Rev.). As it is well known the said Ordinance
governs monogamous marriages.
It appears from the evidence that the late Major (Rtd.) Asante did not observe the strict
monogamous nature of the type of marriage he engaged in because he had issues with
other women. One of such women is the respondent in this appeal. After the death of
the late Major (Rtd.) Asante his wife Mrs. Letitia Asante and a son, Yaw Asante (an
adult), applied ex parte under Order 60 of the High Court (Civil Procedure) Rules, 1954
(L.N. 140A) for the grant of letters of administration. The application was granted by the
High Court, coram Kyemenu-Caiquo J. The court took notice of the fact that the late
Major Kwame Asante was survived by six children who were minors. On 5 February
1991 Mr. D. O. Lamptey as solicitor filed a “notice to prohibit grant of probate or
administration” on behalf of Miss Mary Owusu of house No. 14, Tesano, Accra. Notice
of this caveat was served on the said Mrs. Letitia Asante and Yaw Asante. In her
affidavit disclosing her interest in the estate of the deceased, Miss [p.122] Mary Owusu
disclosed that the deceased had during his lifetime two children by her who were
minors. In paragraphs (3)-(5) of her affidavit Miss Mary Owusu deposed:
“(3) That the names and ages of the children do not appear in the affidavits in support of
the applicants’ application for letters of administration.
(4) That since the two children the deceased had by me prior to his death are minors it
will be just and convenient and serve the ends of justice that I their natural mother be
joined as administratrix to the applicants for letters of administration to enable the
interests of the children to be adequately and justly protected.
(5) That Mrs. Letitia Asante, lives in the United Kingdom; the bulk of the deceased's
estate is in Ghana; it is hard to imagine how Mrs. Letitia Asante can effectively and
conveniently manage the estate of the late Major (Rtd.) Kwame Asante from the United
Kingdom where Mrs. Letitia Asante lives and works."
She continued in the subsequent paragraphs to disclose other properties which the
original applicants for letters of administration did not disclose to the court. By
paragraph (8) of her supporting affidavit, the ages of the two children of the caveatrix,
Miss Mary Owusu, were given as ten and nine years as at 12 February 1991.
The affidavit of Mrs. Letitia Asante shows that the two children of the caveatrix were
included in the deceased’s children when the original application for the grant of letters
of administration was made. Before the court could decide on the application of the
caveatrix, one Philip Asante who claimed to be a brother of the deceased and the
customary successor to the deceased also applied to the court “to join the wife of the
deceased to apply for letters of administration.”
The court ruled on 14 June 1991 that letters of administration be granted to Mrs. Letitia
Asante, Yaw Asante, Mary Owusu and Philip Asante. It is against this decision of the
court that this appeal has been lodged. The main objection is to the inclusion of Mary
Owusu among the persons to whom letters of administration has been granted.
Order 2, r. 7 of the Probate and Administration Rules, 1991 (L.I. 1515) deals with
“priority of grant” where the deceased was married under the Ordinance or Cap. 127.
The said rule 7 states:
“7. Where the deceased died intestate on or after 14th June, 1985 then the order of
priority for grant of letters of administration shall be as follows—
[p.123]
(a) Where the deceased was married under the Marriage Ordinance (Cap. 127) or was
the issue of such marriage—
(i) the surviving spouse;
(ii) surviving children;
(iii) a surviving mother or father;
(iv) the customary successor of the deceased.”
And rule 8 of the same Order 2 of L.I. 1515 states that:
“8.(1) The number of persons to whom a grant may be made shall not exceed four
persons as specified in section 77(1) of the Administration of Estates Act, 1961 (Act 63).
(2) Where two or more persons are entitled to a grant in the same degree the court may
make a grant to anyone of them without joining the other others.
(3) Where there is a dispute between persons entitled to a grant in the same degree the
court shall summarily determine such dispute and may make a grant to such of them as
it considers fit.”
These give a discretion to the court to make a grant to any of those entitled to the grant
of letters of administration.
In the instant case, the objection is to the inclusion of the caveatrix. She under the
provisions of the Law is not entitled to a share in the estate of the deceased but her
children are. Her contention is that she is the proper person to protect the interest of
her children. The evidence is that apart from her children and the children of the widow
the deceased had other children whose interest too will have to be taken into account.
It is not an easy task for an appellate court to disturb the exercise of discretion by a trial
court. In this case, however, as the deceased had other children whose interest ought
to be taken into account, the inclusion of the caveatrix for the sole purpose of protecting
the interest of her children is in my view a wrong exercise of discretion for it did not take
into account the interest of the other children.
I shall therefore allow the appeal and exclude the respondent from the persons to whom
letters of administration has been granted. The eldest son of the deceased should be
able to protect the interest of all the children of the deceased.
JUDGMENT OF ADJABENG J.A.
On 3 April 1990, Major (Rtd.) Kwame Asante died intestate in a motor accident. On 10
January 1991 the deceased’s widow, Mrs. Letitia Asante, and his eldest son, Yaw
Asante, filed an application [p.124] at the High Court, Accra for a joint grant of letters of
administration to them to administer the estate of their late husband and father
respectively. In the affidavit in support of the application, they deposed that the
deceased left behind a widow and seven children, six of whom were minors. They
swore that they would faithfully administer the estate of the deceased. It came to light
during the hearing of the application on 16 January 1991 that only three of the seven
children mentioned in the affidavit of the applicants were the real children of the widow.
The eldest son, Yaw Asante (the second applicant), and the other children had different
mothers. Indeed, the other three children were born by two other women. Two of these
children were recorded in the court notes of 16 January 1991 as Kobby (ten years) and
Amanda (eight years). The court granted the application and ordered that the usual
notices be put up for only fourteen days.
Before the letters of administration could be sealed, however, a caveat was entered by
Miss Mary Owusu. The basis of her caveat was that as the mother of Kobby and
Amanda she wanted to be made a co-administratrix of the estate of their late father so
that she could protect their interest in the estate since they are minors, and since they
were not mentioned by the applicants in their application. This cannot be true because
as has been observed earlier, they were included in the seven children mentioned by
the applicants. The applicants opposed the application by the caveatrix to join the
administration of the deceased’s estate on the ground that she had no locus standi in
the matter as she had no interest in the estate. While the parties were waiting for a
ruling on the application by the applicants for the removal of the caveat and a
confirmation of their grant of the letters of administration, one Philip Asante, a brother of
the deceased and his successor, supported by their head of family, applied for a joint
letters of administration to be granted to him and the deceased's widow, the first
applicant. It was disclosed in the affidavit of the head of family that the deceased had
two other children by other women making a total of nine children in all and not seven
as earlier stated.
After struggling for sometime with the issue as to whether or not to include the
caveatrix, Miss Mary Owusu, also among the administrators, the learned High Court
judge finally ruled in her favour and granted joint letters of administration to the original
applicants, that is the widow and the eldest son, the successor, and the caveatrix. The
reason given for bringing in the caveatrix is that: “The mother of these two minors
therefore is considered as best suited to protect the interest of minors Kobby and
Amanda as the children’s only parent and guardian.” The judge came to this decision
forgetting, it seems, that she had earlier come [p.125] to the conclusion that: “The eldest
child fortunately possesses other siblings and as such is obliged to protect their
interest.”
The original applicants were dissatisfied with the court’s order making the caveatrix a
joint administratrix. They therefore appealed to this court on several grounds some of
which are as follows:
“(b) The learned trial judge in her error and misdirection achieved a judicial novelty
when she made an order contrary to public policy and morality by joining Miss Mary
Owusu, a concubine who had no locus standi in the estate of the deceased and who
was hiding behind two children with the deceased, as an administratrix of the estate,
thus opening the floodgates for any concubine who had children with the deceased to
join in the administration of the estate ...
(d) The learned trial judge in her ruling misdirected herself on the role of administrators.
(e) Since the learned trial judge in her earlier ruling granting letters of administration to
the appellant recorded the names of Kobby and Amanda, the two children of the
concubine, and ordered the appellants to cater for them when administering the estate,
there was no basis for the reference made in the ruling that the children were concealed
from the court in the first application for the grant of letters of administration.
(f) The learned trial judge respectfully erred in holding that since under the Intestate
Succession Law, 1985 (P.N.D.C.L. 111) the children of the caveatrix have an interest in
the estate of their late father it is only their mother, a concubine, who is the best person
to be joined to protect their interest.”
It must be remarked that too much emphasis seems to have been placed in the grounds
of appeal and in the arguments offered on behalf of the first appellant, the deceased’s
widow, on the fact that the respondent was a concubine of the deceased. It seems to
me that there was no need to make capital out of this fact. The truth is that the
caveatrix, the respondent herein, never made her application to be joined as an
administratrix on the basis of her own personal relationship with the deceased. Her
case is that it is necessary that the interest of her two children in their deceased father’s
estate needs to be protected since they are minors. And that since she is their mother,
she is best qualified to protect this interest hence her desire to join the administration.
The simple issues that arise here and which must be resolved, in my opinion, are
whether or not it is necessary for her to be an administratrix before [p.126] the interest
of her children can be protected, and whether or not the fact that a person has had a
child or children with the deceased person makes her or him a qualified person to be
her or his administrator or administratrix as the case may be. It is trite learning that in
this country, a child had by a man with whichever woman, be she a concubine or
girlfriend or mistress, once accepted by the man as his child, is recognised by our laws
as his child and this child is entitled to a portion of his estate: see the definition of “child”
in section 18 of the Intestate Succession Law, 1985 (P.N.D.C.L. 111).
There is provision in our laws for the grant of letters of administration. Order 2, r. 7 of
the Probate and Administration Rules, 1991 (L.I. 1515) provides that:
“7. Where the deceased died intestate on or after 14th June, 1985 then the order of
priority for grant of letters of administration shall be as follows—
(a) Where the deceased was married under the Marriage Ordinance, (Cap. 127) or was
the issue of such marriage—
(i) the surviving spouse;
(ii) surviving children;
(iii) a surviving mother or father;
(iv) the customary successor of the deceased....”
It is also provided in rule 8 of the same Order 2 of L.I. 1515 that:
“8.(1)The number of persons to whom a grant may be made shall not exceed four
persons as specified in section 77(1) of the Administration of Estates Act, 1961 (Act 63).
(2) Where two or more persons are entitled to a grant in the same degree the court
may make a grant to any one of them without joining the others.
(3) Where there is a dispute between persons entitled to a grant in the same degree
the court shall summarily determine such dispute and may make a grant to such of
them as it considers fit.”
In the instant case, the appellant, being the surviving spouse who according to the
evidence had been married under the Marriage Ordinance (Cap. 127), is the first in the
order of priority for the grant of letters of administration as quoted above. The trial judge
was therefore right in making a grant to her. Next comes the children. Here the
deceased’s eldest son, Yaw Asante, was originally granted the letters of administration
jointly with the surviving spouse. Both of them were [p.127] ordered to administer the
deceased's estate according to law after the judge had noted as follows: “Of the six
minors, three belong to the widow. The other three belonging to other women. These
three are Madeline, aged fifteen, Kobby ten years and Amanda eight years.” Note that
Kobby and Amanda are the two children of the caveatrix whose interest she wants to
protect. The judge did not seem here to see anything wrong with the administration of
their portion of the estate being entrusted to their stepmother and elder brother.
The trial judge, however, seems later to have forgotten about this state of affairs for, in
her ruling joining the caveatrix as an administratrix, she made the following remark:
“After the grant of the letters of administration a caveat was entered by the mother of
two other children not particularly specified in the application. The affidavit of interest
filed by the caveatrix on behalf of her children showed that these two children were
minors who required a guardian-at-law.”
It seems to me that once Yaw Asante, the eldest son, who is not a child of the widow,
has been granted the letters of administration jointly with the widow, he represents at
least the interest of all the children of the deceased who had mothers other than the
widow. “Surviving children”, as the second group in the order of priority as contained in
Order 2, r. 7(a) of L.I. 1515 is thus represented in the administration of the deceased’s
estate. It seems to me therefore that unless there is a very compelling reason for so
doing, no other person should be added to Yaw Asante to represent the surviving
children of the deceased. No such compelling reason had been indicated by the trial
judge for adding the caveatrix-respondent to Yaw Asante to represent the children.
There is no evidence at all on the record to suggest that the first appellant, the widow,
assisted by Yaw Asante, the eldest son of the deceased, could not protect the interest
of all the children of the deceased. The trial judge seems to have based her decision
only on conjecture and speculation that the interest of the respondent’s two children
could not be protected by any other person than their mother. The question is: what
about the other children whose mothers were not brought in? Apart from Yaw Asante's,
there should be two or more other mothers. Why did the judge not consider that their
children’s interest needs to be protected? Or is it only the respondent’s two children
whose interest should be protected? Indeed, the trial judge found that, “It is convenient
therefore that all the children are represented by one person out of their number.” And
the judge also found that “The eldest child fortunately possesses other siblings and as
such is obliged to protect their interest.” In view of these [p.128] findings made by the
judge, why did she single out the respondent’s children for special treatment? I do not
think that this is fair to the other children. If the judge was minded to exercise her
discretion judicially, then the logical thing was to order that each child with a different
mother than the widow should be represented in the administration by either his or her
mother or by a guardian. That, no doubt, would go against Order 2, r. 8(1) of L.I. 1515
as the administrators would be more than four. It would also set the dangerous
precedent that once a woman has had a child with a man that woman is entitled to join
in the administration of his estate when he dies to protect the interest of the child even
though she was only a girlfriend.
Another point which the learned trial judge lost sight of is the difficulties that might arise
in the administration when a lawful wife was joined together with a girlfriend to
administer the estate of their deceased husband and boyfriend. Naturally, difficulties
might arise in such a situation that might militate against a smooth administration of the
estate. In In re Blankson-Hemans (Decd.); Bankson-Hemans v. Monney [1973] 1
G.L.R. 464 at 468 Koranteng-Addow J. (as he then was) sitting at the High Court,
Kumasi refused to join the mother of the deceased to the widow to administer the
deceased’s estate because as he put it:
“Again there would seem to be no love lost between her and the plaintiff. The first
caveatrix herself confesses to that. She said in her evidence that she is not on
speaking terms with her. It would be simply impossible for the two of them to agree on
anything.”
To make it possible for the estate to be administered, the learned judge in that case
considered it more appropriate to appoint the senior registrar of the court to join the
widow to administer the estate.
It seems to me that if the trial judge in the present case had considered all the matters I
have discussed in this judgment, she would not have made the respondent a coadministratrix. I think that she exercised her discretion wrongly in the respondent’s
favour considering the facts of this case. She seems to have forgotten her own earlier
findings which would suggest that the administration of the deceased’s estate could be
carried out by only the widow, assisted by the eldest son of the deceased. Yet she
changed the position without explaining why she was changing it. Also there was no
evidence suggesting that the appellant and the eldest son would discriminate against
the children of the respondent in the administration of the deceased’s estate. After all,
all the children are entitled to equal share in the portion of the estate due to the
children. This is fixed by P.N.D.C.L. 111. It was held in Traboulsi & Co. v. Paterson
Zochonis & Co. Ltd. [1973] 1 G.L.R. 133, C.A. as stated in the [p.129] headnote: “Where
a judge of first instance misapprehended the evidence in the exercise of his discretion
that would be sufficient justification for interference by an appellate court.” Also in
Ballmoos v. Mensah [1984-86] 1 G.L.R. 724, C.A. it was held as stated in the headnote
that:
“(1) the Court of Appeal would not interfere with the exercise of the trial court’s
discretion save in exceptional circumstances. An appeal against the exercise of the
court's discretion might succeed on the ground that the discretion was exercised on
wrong or inadequate materials if it could be shown that the court acted under a
misapprehension of fact in that it either gave weight to irrelevant or unproved matters or
omitted to take relevant matters into account...”
I think that the matters mentioned in the authorities quoted above are present in the
present case. I think therefore that this court is entitled to interfere with the exercise by
the High Court of its discretion in favour of the respondent.
I think that the widow, the eldest son and the successor of the deceased are capable of
administering the deceased’s estate for the benefit of all the beneficiaries. There is no
need, therefore, that the respondent should also join. Her inclusion as I have explained,
might even militate against the smooth administration of the estate. For the reasons
given, therefore, I also would allow the appeal.
JUDGMENT OF FORSTER J.A.
I agree that the appeal succeeds and should be allowed.
DECISION
Appeal allowed.
J.N.N.O.