Personal Testamentary Capacity in Ghana: Blindness:

Introduction

Beyond age and soundness of mind, there have been discussions on whether blindness affects a person’s testamentary capacity. These discussions centre on the core question of whether blind persons know the content of their wills to ensure that the content reflects their intentions.

Statutory Provisions on Blindness and Capacity to Make a Will

In Ghana, the question of whether a blind man has testamentary capacity has been statutorily answered in the affirmative in section 2(6) of Act 360 . The section reads:

Where the testator is blind or illiterate, a competent person shall carefully read over and explain to him the contents of the Will before it is executed, and that competent person shall declare in writing on the Will that the Will had been read over and its contents explained to the testator and that the testator appeared perfectly to understand the Will before the Will was executed.

Thus, a blind person can make a will if he appears to perfectly understand the contents of the will before the will is executed. This understanding will stem from the will being read over and explained to the blind person by a competent person (not blind in this context).

Prior to the coming into force of Act 360, the courts in Christian v. Intsiful [1954] 1 W.L.R. 253; 98 S.J. 90, P.C and Baksmaty v. Baksmaty [1964] GLR 56 had recognized the testamentary capacity of blind persons.

In Christian v. Instiful (supra), the testator, aged ninety-three at the time of his death, had impaired eyesight. Although their lordships of the Privy Council did not agree that the testator was blind, they held that

Even supposing he were blind, there still remains the question whether he understood the document which was put before him. So far as the witness were concerned, they obviously thought that he was capable of understanding what he had done.

Thus, the deciding criterion was whether the testator, even if blind, was capable of understanding what he had done or the contents of the will. Their lordships concluded that the testator had such understanding because

the will is an elaborate one, leaving to large number of parties, relations, and friends of the deceased, various sums of money and it is not a document which one who was not intimately acquainted with the testator’s life could possibly have devised.

…it was never suggested to Mr. Arthur, the solicitor’s clerk, that he had that or any such knowledge of the testator’s relationships and friendships…

Thus, the fact that the will contained dispositions which could only be made by the testator, led their lordships to conclude that he understood its contents.

Also, in the Ghanaian case of Baksmaty v. Baksmaty [1964] GLR 56, a blind testator caused a firm of solicitors to draft his will. There was evidence that the will was read over to the testator and its contents were explained to him, after which he expressed his approval of the correctness of its contents. He was guided to sign the will. The court held that the will was duly executed by him and was valid. Relying on the English case of Wilson v Beddard, the court held that it was acceptable for the testator to be guided in signing the will. The court delivered itself as follows:

I am satisfied on the whole of the evidence and I do find that the late Sobhy Baksmaty well understood the contents of the will which were read over to him and put before him and which he signed, and that when he executed the said will on 23 February 1963 he knew what he was doing and wished to make his last will and testament, that he made his said signature in the presence of the witnesses Mr. Crayem and Dr. Salaby, who also signed as witnesses to his said signature in the presence of each other, and that therefore the said will is a good and valid will: see the opinion of the Judicial Committee of the Privy Council dated 14 December 1953 in Christian v. Intsiful. For these reasons, the plaintiff’s claim on this ground must fail.

From the above, it may be reasonably concluded that once a blind testator is not shown to have understood the contents of a will, he cannot be said to have executed that will.