BAKSMATY vs. BAKSMATY

The plaintiff, a brother of the late Sobhy Baksmaty, brought an action to revoke probate granted to the defendant, the widow and sole executrix of the deceased’s will. He sued in three capacities: as elder brother and next of kin of the deceased, as alleged guardian of the defendant’s minor children, and as attorney for the guardian in Lebanon of Fatma Salam, a minor daughter of the deceased by another marriage. He alleged first that the will was a forgery and had not been made or attested by the deceased, and alternatively that the deceased, being a Mohammedan whose domicile was said to be Lebanon, lacked testamentary capacity under Mohammedan law to make the will. The defendant denied forgery, maintained that the will was duly prepared and executed, and contended that the plaintiff lacked locus standi except as he purported to act for Fatma Salam’s guardian. The court found that the deceased, though blind and physically infirm, remained mentally sound, understood the contents of the will after it was read and explained to him, and validly signed it with his hand guided to the place of signature. The court further accepted expert evidence on Mohammedan law that the deceased had testamentary capacity to make the will. [Portions relied on: opening paragraphs identifying parties, capacities and relief sought; passages beginning “I think it is essential at this stage to determine whether or not the plaintiff has all or any of the capacities…”; medical evidence of Dr. Hawe; and the concluding findings on validity and testamentary capacity.]

JUDGMENT OF PREMPEH J. The plaintiff is the brother of the late Sobhy Baksmaty who died in Accra on 19 April 1963 and the defendant is his widow by whom he had six children, five girls and one boy. By another marriage the deceased had a daughter called Fatma Salam, now living in the Lebanon, and she is a minor. The late Sobhy Baksmaty died leaving many properties in Ghana, which are shown in the statement of claim, and he left a will by which he appointed the defendant the sole executrix, and in which he directed the manner in which his estate should be distributed after his death. On 6 May 1963 the defendant applied for and was granted probate by this court of the will of the late Sobhy Baksmaty, and upon hearing this, the plaintiff instituted these proceedings against the defendant. By his amended statement of claim, the plaintiff partly as elder brother and next-of-kin of the late Sobhy Baksmaty, deceased, partly in his capacity as guardian of the minor children of the defendant...