Lecture notes on WILLS

An Introduction

The importance of Wills in the life of a people cannot be overestimated. Death is an inevitable end of earthy life. We are living witnesses to the destruction of family units at the end of the patriarch’s life due to disagreement over inheritance. Homes have been broken and scattered; children and relations have become mortal enemies in their struggle to share the properties of the deceased.

While it may be true that because of the feud and unending litigation that sometimes attends some Wills, some of our people have become scared about Wills, the overwhelming majority are thirsty for knowledge about Wills. They want to know why they ought to make Wills, how to make Wills and their advantages over other manners of disposition of property in consideration of death. Happily, these are the questions which this short course deals with.

What is a Will?

A Will is a testamentary and revocable document, voluntarily made, executed and witnessed according to law by a testator with sound disposing mind wherein he disposes of his property subject to any limitation imposed by law and wherein he gives such other directives as he may deem fit to his personal representatives otherwise known as his executors, who administer his estate in accordance with the wishes manifested in the Will.

Different types of Wills

There are 3 types of Wills, namely (a) A Statutory Will; (b) A Nuncupative Will and (c) Written Customary Will.

• A Statutory Will is one made in accordance with the provisions of the relevant statute in force. To be valid, the Will must conform to the requirements prescribed by the relevant statute. A departure from all or any of the prescriptions may render the Will void and of no effect.
• In contrast, a Nuncupative Will is oral and takes effect under customary law. It is the oral directives of someone made in anticipation of death before credible witnesses. Such directives are usually enforced with the consent of the testator’s family.
• A Written Customary Will must be recognised by native law and custom and does not matter in which form it takes, whether oral or written. It may really amount to a moot point whether or not a Customary written Will is valid and legal. Within the circles of the village heads, elders and kinsmen, it is generally believed that, the declarations of the dead are not easily departed from but are executed out of respect for him or in fear of his anger and spiritual vengeance from the grave.

Advantages of making a Will

• A Will displaces Devolution by Customary Law.

Every Nigerian belongs to one tribe or another. Each tribe has established customs for the devolution of property. Except a deceased left a Will, his bounties could devolve to people outside his contemplation. He can avoid this, if he opts out of his customary laws by specifically leaving such bounties to objects of his regard specifically mentioned in his Will.

• A Will displaces Devolution by Statute.

Some Nigerians are caught by the Marriage Act and the rule in Cole v Cole. This category of Nigerians may have their property devolved as laid down by Statute in the event of their dying intestate. Each State of the Federation has in operation an Administration of Estate Law which prescribes elaborate rules on what happens to property in case of intestacy.

• Appointment of Personal Representatives.

A testator may by his Will appoint Personal Representatives of his choice. It is one thing to make elaborate plans for who should benefit, it is another thing entirely to nominate people usually called executors who would ensure that the Will is complied with. In his life time, the testator would have interacted with friends and relations amongst whom he could trust to carry out the wishes expressed in his Will.

• Positive display of wishes.

The testator may wish to show that he is in control of his bounties. He does this by displaying in his Will who he wants to include or for that matter exclude in his Will as beneficiaries.

• Testamentary guardian.

A testator may naturally feel anxious about the welfare of an infant child of infant children. His anxiety may well be founded if the other spouse is either incapable or has perhaps divorced and remarried. He could by his Will nominate person or persons who shall act as guardian.

• Direction as to burial arrangements.

The testator could easily direct in his Will, details of his funeral, including funding of same, place of burial and whether his remains should be cremated or otherwise dispossessed off.

• Personal Representatives act from death.

An executor appointed by the Will of the deceased has legal authority to act from the death of the testator. He need not wait for the Probate to issue before he acts. Until an Administrator (Personal Representative of an intestate) is clothed with the authority of the court, he cannot act.

• It is cheaper to process application for the grant of probate than for the grant of letters of administration.

The personal representatives apply for the grant of probate if the deceased died testate and letters of administration if he died intestate. It would appear that it is cheaper to apply for a grant of probate than it is for letters of administration.

• Bequest of organs.

Anybody who is inclined to part with his organ at death should ensure that this gesture is well documented in his Will.

• Testators peace of mind.

The existence of the Will may give the testator peace which may have eluded him, during his lifetime but which he hoped might redress a lot of wrongs. At least those gifts would get to those within his contemplation and those he is leaving behind would enjoy his bounties the way he wants them to.

The Law

• The general principles of Common Law and Equity.
• The various Wills Law enacted by various states: e.g. Lagos State has a Wills Law Cap. 1431.
• The Wills Act 1837
• The Wills Amendment Act 1852
• High Court (Civil Procedure) Rules.

Capacity to make a Will

Invariably, every adult can make a Will. However, it is important to bear the following in mind;

• An infant unless in actual military service or a seaman cannot make a Will. (An infant is under 18 years of age)
• A mentally disabled person cannot make a valid Will whilst this disability subsists.
• A blind person can make a Will, but it has to be shown that the Will was read to him and he appeared to perfectly understand the contents before he attested to it. An attestation clause will usually suffice for this type of person.
• An illiterate can make a Will, but it must be shown that the contents were read over to him and that he appeared perfectly to understand and approve of same. An attestation clause similar to the blind person above will be useful for this type of individual.

Legal points to note

 Due Execution

(a) The Will must be in writing signed at the foot or end thereof by the testator or by some other person in his presence and at his direction. The signature must be made and acknowledged by the testator in the presence of two or more witnesses at the time. The witnesses shall attest and subscribe the Will in the presence of the testator, but no formal attestation is necessary. Section 6 Wills Law 141.

(b) The Court used to interpret “at the foot or end” very strictly. The Wills Amendment Act 1852 was enacted to temper this rigidity. The law in effect states that the position of the testators signature can be anywhere, provided it is apparent in the face of the Will that he intended to give effect by such signature to the writing signed as his Will. Generally however, effect will not be given to anything or disposition made after the signature.

2. Procedure after execution

(a) Date has to be put in the body of the Will.

(b) Copy of the Will has to be lodged in a safe place, preferably with a solicitor or bank.

3. Typical Attestation Clause

 The following attestation clause is common.

“Signed by the above WZ, as and for his last Will in the joint presence of himself and us both present at the same time who at his request in his presence and in the presence of each other have hereunto subscribed our names as witnesses.”

4. Attesting witnesses

 (i) Attesting witnesses and their spouses cannot take a beneficial gift contained in the testamentary instrument so attested Section 15 of the Wills Act.

(ii) Who can attest?

(a) A blind person cannot attest.

(b) Any other person is competent, but you must select persons of good credit and reliability.

(c) Where the testamentary capacity of the testator may be called in question, it is advisable to use a medical man or a solicitor or other professional as witnesses.

 

5. The Will must be testamentary

The Will takes effect only after death. Testator can change his Will. Gifts do not vest upon execution but only after death. If the beneficiary predeceases the testator, then the gift will lapse.

 

6. The Will must be voluntary

The Will must have been made voluntarily by the testator without coercion by another to make the Will in a particular way.

7. Testator must have a sound disposing mind

The testator must have a sound disposing mind at the time when instructions were given and when the Will was executed.

8. Revocation of a Will

Wills can be revoked in 3 ways 

(a) Subsequent Will or Codicil

(b) Destruction with animus revicandi

(c) Subsequent marriage other than customary marriage.

9. Visiting factors 

(a) Fraud

(b) Mistake

(c) Undue influence

(d) Suspicious circumstances

 CODICILS

1. A Codicil is a miniature Will.
2. All the rules and law applicable to a Will equally apply to a Codicil. It must be testamentary and must be executed according to law. It must be freely made and must be made at a time when the testator had testamentary capacity.

 3. Uses

(i) It can be used to revoke a Will or another Codicil

(ii) To revive a Will or Codicil

(iii) To correct a clerical error in a Will and to validate alterations in a Will

(iv) To amend vary or otherwise alter all or specific clauses pr provisions of a Will.

4. Practical points

(i) There could be several Codicils to a Will, but the practitioner should be able to advise as to when it is desirable to make an entire ‘new’ Will rather than relying on several Codicils to alter, amend or revoke the Will.

(ii) The Codicil should always be linked by reference to the Will it seeks to alter, amend or revoke.

 

Checklist for instructions to draft a Will

(a) Details of testator

(b) Value and size of the testators estate

(c) The testator’s intended beneficiaries

(d) Appointment of executors and trustees

(e) Appointment of guardians

(f) Disposition of property

(g) Particular circumstances

(h) Testator’s personal directions.

 

Notes written and compiled by Mr Jide Ogundimu of Jide Ogundimu & Co Solicitors, all rights reserved.