Case of the week: Humphrey-Bonsu and Another v Quaynor and Others

Humphrey-Bonsu and Another v. Quaynor and Others

Court of Appeal · [1999-2000] 2 GLR 781 · Ghana

Who Protects Disabled Dependants in a Will?

Introduction:
Imagine being left out of your spouse’s will after decades of marriage, or worse. seeing your severely disabled child receive nothing because they are over 18. This week’s case explores how the law protect(and sometimes fails) vulnerable dependants. It also concern the limits to the testamentary freedom of Testators and raises questions about the urgent need for the protection for disabled adult children through an amendment of Section 13 of the Wills Act, 1971 (Act 360).

Facts:
William Bart-Plange, a wealthy contractor, died in 1987 leaving a will. The will made generous provision for some of his children born from other relationships but completely excluded his customary wife, Beatrice Akweley Quaynor, and three of their children including one who was physically and mentally disabled from birth. Although Beatrice and the testator had lived apart for many years, they were never divorced and she performed widowhood rites after his death. The plaintiffs – Beatrice and her children – brought an action under section 13(1) of the Wills Act, 1971 (Act 360), which allows courts to make reasonable provision for a deceased person’s spouse or child under 18 years if hardship would otherwise result.
They also challenged devises made under the will on the basis that some of the beneficiaries had improperly attested to the will.

Holding:
The Court of Appeal upheld the decision of the trial court and made the following
determinations:
i. The court found that Beatrice was lawfully married to the deceased under customary law. Long-term separation did not constitute a divorce, especially in the absence of any formal dissolution or contrary customary rites.
ii. The court recognised Beatrice as a dependent within the meaning of section 13(1) of Act 360 and held that the deceased’s failure to provide for her justified judicial intervention to secure reasonable provision from the estate.
iii. Despite the court’s sympathy for the third plaintiff – a severely disabled son – the court held that because he was over 18 years old at the time of death, he could not be considered a “child” under section 13(1). The court acknowledged this as a
legislative gap.
iv. The court held that devises made to beneficiaries who attested the will were void under section 3(4) of the Wills Act. These properties fell into residue, and since there was no residuary clause, they were to be distributed under the Intestate
Succession Law, 1985 (PNDCL 111).
v. While the deceased had the right to dispose of his property by will, that right is limited by statutory duties to dependants. Where these are ignored, the courts may set aside portions of the will to ensure fairness and prevent hardship.

Implications of the Decision:
This decision affirms that dependants of a deceased cannot be disinherited without consequences. However, it also highlights a troubling gap in Section 13 of the Wills Act 1971(Act 360) which keeps adult dependent children out of its contemplation.

Significant Quote:
“The first plaintiff who was a pensioner with no monthly pension and no significant source of income was dependent on the husband before the separation and I hold that he continued to be responsible for her. Unfortunately, both the second and third plaintiffs were more than 18 years old at the time the testator died. And so by section 13(1) of Act 360 they do not qualify as dependants, however much pain or grief one has for them, especially the third plaintiff. I say this without relish, but that is what the legislation says… I believe this case brings to the fore the urgent need to amend this law so that certain handicapped and dependent children, however old they may be, will benefit from their parent’s estate.”
– Benin JA

Commentary/Insight:
This case is a poignant reminder that judicial sympathy has no place where the language of the law is clear. The court’s acknowledgment of injustice was constrained by statutory boundaries, revealing the harsh reality that the law does not always protect the most vulnerable. Any attempt to bring the 3rd Plaintiff who was the adult but mentally derailed child, within the meaning of Section 13 of the Wills Act, 1971 may have been a judicial amendment of the express language of the statute and a glaring usurpation of legislative powers of parliament. However, such an approach would have ensured a realization of the purpose of said provision of the statute- to wit, the protection of true dependants. It is therefore imperative for Parliament to take steps towards the amendment of the said provision to forestall a replication of this travesty of justice.

Key Lessons and Practical Takeaways

Courts can not rewrite clear legislation.

Adult disabled children deserve greater legal protection. Parliament must act.

Testamentary freedom is not absolute; proper estate planning can prevent hardship.