BASIC RULES OF INTERPRETATION Flashcards
INTERPRETATION OF NON-STATUTORY DOCUMENTS
Biney v Biney
The starting point of the interpretation of non-statutory documents was established in the case of Biney v Biney.
Cardinal rules are as follows:
a) The text must be read as a whole. (Sey v Sey)
b) The construction must be as near to the mind and intention of the author as the law would permit.
c)The intention must be gathered from the written text itself
d) Technical words will be given their technical meaning.
What is a will?
In Ghana, Wills are governed by the Wills Act, 1971 (Act 360)
A Will is defined as a legal declaration of a person’s wishes regarding the disposal of his or her property or estate after death.
What is the cardinal rule in the construction a will?
The cardinal rule in the construction of construction of such a will is that the intention of the testator as declared by him and apparent in words in his will must be given effect unless there are compelling reasons militating against doing so. See In Re Mensah (deceased)
In Re Mensah (deceased); Barnieh v. Mensah
The court noted that the policy of the courts is to give effect to the last wishes of the deceased and to uphold them unless there are overriding legal obstacles in the way.
In accordance with this basic principle, when the courts set out to construe a will, what they do is to look for the intention of the testator an expressed by him in the actual words used by him having regards to all the provision in the will.
Characteristics of a will
- Any person above the age of 18 years can make a will disposing of his or her self-acquired property.
- Generally a will must be made to conform to a prescribed form.
- *In construction of a will, it must be established that the testator had the capacity to make a will, as held in Cartwright v Cartwright.
Section 2 of Act 360
Requirements of a will
It is required that a will must be:
- In writing,
- Signed at the foot or end of the document by the testator
- Attested by at least two witnesses, all present at the same time.
A will shall take effect as if it had been executed immediately before the death of the testator, unless a contrary intention appears from the will.
The Golden Rule
Presumption is that the testator did not intend to die intestate.
When the courts set out to construe a will, what they do is to look for the intention of the testator as expressed by him in the actual words used by having regards to all provisions in the will.
Aim of the Golden rule
It directs the court towards an object standard of construction and to exclude evidence which seeks to provide what is supposed to be ht actual intention of the testator.
Under this rule evidence of instructions given by the testator for his will and any declarations made by him as to what he intended to do by his will is not admissible as direct evidence of his testamentary intention.
In re Doe(deceased); Hiscocks v. Hiscocks
It was held that the evidence of the testator’s instruction for his will and of his declarations after its execution which suggested that he meant the gift for “Simon” and not “John” was not admissible.
Lapsed Disposition in wills
Lapsed Disposition in wills occurs in two parts the first is when a disposition is made by the testator to a beneficiary and the beneficiary predeceases the testator unless the beneficiary leaves behind an issue the property will lapse. In addition, where a contrary intention is expressed by the testator the property in that respect will not lapse this is stated under section 8 of the Wills Act.
The other instance is where a disposition is, made contrary to law or where the disposition is incapable of having effects unless a contrary intention appears.
Section 38 of the Matrimonial Causes Act, Act 367
Section 38 of the Matrimonial Causes Act, Act 367 is to the effect that a disposition of property made by spouse in the spouse’s Will to the other spouse shall lapse upon termination of marriage under the Act. However, where a contrary intention has been expressed by the testator in the testator in the Will, that shall override the general position of the law contained in the Act.
in Re Attah (decd) Kwako v Tawiah
The Supreme Court held that the policy of the courts is to give effect to the last wishes of the dead and so to uphold them unless there are overriding legal obstacles in the way. Thus, when interpreting a will, the court should look fo intention of the testator as expressed by him in the actual words used by him, having regard to all the other provisions in the will.
