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IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, GHANA IN ACCRAON MONDAY THE 29TH DAY OF APRIL, 2016 BEFORE HER LADYSHIP DORIS BEMPONG MRS.  HIGH COURT JUDGE  
SUIT NO. BFA 41/2013 
1. COMFORT Y. BOAMPONG 4  LAKE POOL STREET    KANESHIE, ACCRA               PLAINTIFFS 2. MARGARET MENSAH E.P. SCHOOLS  PEKI-BLENGO       
VRS: MARGARET AMANKWAH    4 LAKE POOL SCHOOL         DEFENDANT SANTA MARIA, ACCRA ------------------------------------------------------------------------------------------------------ J U D G M E N T ------------------------------------------------------------------------------------------------------  
Parties: Present.  Counsel: Ntony for Plaintiff with Cynthia Ohene present.  
Plaintiff’s claim against the Defendant is for: 1. An Order of Interlocutory Injunction, restraining the Defendant, her agents and servants from collecting further rent from the occupants of 6 hall and chambers until Letters of Administration is obtained and from doing any construction in the house until the property is shared. 2. A declaration that the Plaintiffs and Defendant and her children have equal interest in the estate of the late Nelson Boampong and that the 2nd Plaintiff is a Co-owner of the 1st block with the late Nelson Boampong. 3. An Order to the Defendant to account for the rent collected since 2011. 4. Costs.  
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The Plaintiffs case as gleaned from their statement of claim was that the Plaintiffs were beneficiaries of the estate of the late Nelson Boampong who was the father of 1st Plaintiff and husband of the 2nd Plaintiff.  
The estate includes two blocks of buildings consisting of 6 Units of hall and Chamber apartments. According to 1st Plaintiff, the Defendant who is her stepmother upon the death of her father, in 2010, rented out the rooms in the house without Letters of Administration.  She said Defendant brought out a document she presented as the Last Will and Testatment of the deceased and went ahead to distribute the estate according to the alleged will. Plaintiff says that the 1st block of building was put up by the 2nd Plaintiff and she is therefore beneficiary and especially so when she had a subsisting marriage with the deceased (Nelson Boampong).   
Plaintiff contends that the will was a fake and forged one and that Letters of Administration should be taken to administer the estate of her father. 2nd Plaintiff corroborated the evidence of 1st Plaintiff and stated that the marriage between her and the deceased was still subsisting and that she was an only child and when her father fell sick she had to go to her hometown to go and look after him. She said that deceased kept sending her money and visiting her as a wife until he died.   
She gave evidence to show that she was in the charcoal business in her husband and out of the proceeds at their business she bought the piece of land at Santa Maria and built the 1st block comprising 4 hall and chamber units. She contends that since she is a surviving wife and helped to build the 1st block she is entitled to a portion of the estate.  
Defendant’s case is that upon the death of her husband she discovered a will which had been prepared by the deceased and she handed same to the family.   
According to her the will was read at the court and the property was distributed per the dictates of the sand will. Defendant stated that the 2nd Plaintiff had left the 
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marriage and relocated to her hometown. She denied that the 2nd Plaintiff was a wife and therefore a beneficiary.   
She again denied that the 2nd Plaintiff was a contributor to the construction of the house she had already left in the 1980’s when the house was built.  
At the close of pleadings, the issues identified and raised for determination were; 1) Whether the 2nd Plaintiff was a wife of the late Nelson Boampong and therefore a beneficiary to his estate. 2) Whether the 2nd Plaintiff contributed in the construction of the 1st block of the houses at Santa Maria and consequently a joint owner with the late Nelson Boampong. 3) Whether the late Nelson Boampong made a valid will on the disputed property which could be proved in common form and admitted to probate. 4) Whether the Defendant could deal with the deceased person’s property without probate or Letter of Administration.  
Evidence in the matter so far indicates to the court that there was no dissolution of Marriage between the 2nd Plaintiff and Nelson Boampong. The 2nd Plaintiff was emphatic that she was still married to Nelson Boampong at the time of his death and that she had relocated to her hometown to take care of her sick father.  
According to her, Nelson used to visit her and send her money for her upkeep during the whole time that she was in her hometown.  
Evidence of Magaret Nkasiah (PW1) and Ken Opoku Asiedu, Customary Successor of Mr. Boampong was to the effect that they knew of no customary dissolution of the said marriage. Defendant also was unable to challenge the existence of the marriage or prove otherwise. The Court therefore finds as a fact that the marriage between Nelson Boampong and the 2nd Plaintiff was still existing at the time of his death and that made her a surviving spouse who in entitled to a share in his estate.  
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On the question of whether 2nd Plaintiff contributed to the building of the house especially the 1st block, the Court is of the view that since the 2nd Plaintiff and the deceased worked together in the charcoal business and it has been confirmed that the land was purchased with proceeds from the business, the 2nd Plaintiff must have contributed.   
PW1 confirms that on several occasions that she visited the couple on her own antenated trips, she saw building materials in their home in Mamprobi and 2nd Plaintiff had told her that she and her husband were building a house at Santa Maria. This was also confirmed by DW2. Mary Anokye Duah under cross examination.  
The Court is convinced that the 2nd Plaintiff is in so far as she is a spouse entitled to a share in her husband’s estate. In case of MENSAH VS MENSAH 2012 SCGLR 311, The Supreme Court did away with the requirement of substantial contribution of a wife to jointly owned property. Again Article 22 (1) of the 1992 constitution provides that;  “A spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the spouse died having made a will”.  
The supposed will of Nelson Boampong was exhibited in Court and the question is whether or not it was a valid will which was proved in common form.  
Evidence adduced so far indicates that the supposed will was alleged found by the Defendant and presented to the family of Late Boampong.  
Evidence of DW2 Ken Opoku Asiedu who is the customary successor of the deceased said he was shown a copy of the will but it had no witnesses or mentioned no executors. He again said that though no probate was taken and no Letters of Administration taken, the family went ahead to distribute the estate according to the dictates of the “Will”.  
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The Wills Act 360 of 1971 lays out the requirements of a valid Will. Section 2 of Act 360 provides that, a Will is not valid if the signature or sign of the testator is not made in the presence of 2 or more witnesses and theirs in turn made in the presence of the testator. Section 3 of Act 360 also requires that an executor or executors be named in the will to execute the said Will. These are important requirements and the Court is convinced that since Nelson Boampong’s will did not satisfy these requirements, it was incomplete and therefore not a valid will that could have been proved in common form. Since no probate to the said will was taken the family could not deal with the estate of the deceased.  
Orders 66 rule 3 of CI 47, (High Court Civil Procedure) rules 2004 provides that;            “Where any person other than the person named as an executor in a will or appointed by Court to administer the estate of a person takes possession of and administer or otherwise deal with the property of a deceased person, the person shall be subject to the same obligation and liabilities as an executor or administrator and shall in addition be guilty of the offences of intermeddling or liable on summary conviction to a fine not exceeding 500 penalty units or twice the value of the estate intermeddled with or to imprisonment for a term not exceeding 2 years or both”.  
Evidence adduced shows that the Defendant and her witness without obtaining Letters of Administration or Probate went ahead to distribute the estate of the late Boampong.    
It has also been shown that the Defendant collects rents and was trying to construct an extension in the house. It was also been shown that the 1st Plaintiff has also been receiving parts of the rent accruing to the hall and chamber that was given to her in the supposed distribution.   
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This was not denied by both 1st Plaintiff and Defendant. Defendant said she paid school fees with the rents collected. Both parties cannot under law deal with the deceased person’s estate without obtaining probate or Letters of Administration.  
In the light of the foregoing, I hold that, the Defendant, her agents and assigns are restrained from dealing with the estate of the deceased Nelson Boampong until such time that the Letters of Administration shall be obtained and the property lawfully distributed in accordance with PNDCL 111.  
(2)  It is hereby declared that the Plaintiffs, Defendant and her children by Nelson Boampong are all equal beneficiaries in the estate of Nelson Boampong.  
(3)  Both parties i.e. 1st Plaintiff and Defendant are to account for the rents since 2011.    
             (SGD)    H/L DORIS BEMPONG MRS. JUSTICE OF THE HIGH COURT       
E.L……..  