What you should know about making a Will in Nigeria.

will

When a person dies, he lives behind all his assets and properties. In order to make a positive display of wishes and how his properties should be disposed after his death, he makes a will, which may also give additional directives as to his burial. This valid will confer authority on the executors to act immediately following the death of the testator.

A will is a testamentary document made voluntarily and lawfully executed according to the Wills law by a person called the Testator with a sound disposing mind on how his estate (real and personal) will be disposed upon his death or it is a directive of a person on how his things or his properties will be disposed of upon his death.

TYPES OF WILLS

We have different kinds of will. The making of any type of will will depend on the circumstances and the type favourable to the testator. the different types wills are;

1. Formal will
This is a will made according to prescribed form as required by the relevant wills laws. It derives from English law and it is required to be signed by the testator and attested by at least two witnesses.

2. Statutory will
These are wills made in accordance with the requirement of certain statutes. Examples, wills made according to Armed Forces Act Cap 420 LFN 2004 for members of the armed services. E.g. the courts in protection of mentally ill persons may order for a will for such persons

3. Nuncupative wills
A nuncupative will is the oral directives of a deceased person to his heirs, which are to be carried out after his death. It is usually made in anticipation of imminent death. Sometimes referred to as Death Bed Wishes. An oral statement directing how property is to be distributed after the death of the maker. Except in cases of privileged wills and donatio mortis causa (donation of gifts made orally in contemplation of death) being exceptions to the rule, such statements have no effect in law. Nevertheless, a nuncupative will is perfectly valid under customary law, provided that it is made before credible witnesses.

4. Mutual or reciprocal will
It is made by two or more persons. They are reciprocal … they make provisions for each of the makers of the will, or an agreement between them to dispose their properties in a particular way. It is common among husband and wife when each leaves their property to the other on the condition that the second to die will leave all their estate including that of the first to die to an agreed 3rd party e.g. their child. The disposition may be done by one will or it may be done by separate wills. Mutual wills are not revocable, except with the agreement of the other party.

5. Privileged will.
A privilege will is defined as a right, advantage, or immunity granted to or enjoyed by a person or a class of people, beyond the usual rights or advantages of others. A will is said to be privileged because it is not subject to the usual rules for making wills due to some special circumstance. Such a will is valid even though it does not comply with the formal requirements of the Wills Act 1837 in terms of form, such as the requirements of writing, attestation and execution, or even the possession of the requisite capacity in terms of being a minor.
This is a will made by certain categories of person’s actual service e.g. A soldier in actual military service, a mariner or seaman being at sea, a crew of commercial airliners.
Such persons can make wills without the required formalities. It may not be written or signed or witnessed. The testator must however have the TESTAMENTARY capacity and the intention to make the will.

6. Holograph will
This is a will written and executed in the hands of the testator himself which is usually not attested.

7. Prenuptial/Ante-nuptial will
This is a will made preparatory to a marriage. It can be made by any of the spouses to be before marriage.

8. Conditional will.
conditional will is a will wherein the testator states that he intends the will to take effect only when some specified condition has been satisfied, e.g. where the condition upon which a testator’s will taking effect is dependent on whether or not he survives some other person. In the case of In the Estate of Thomas [1939] 2 All E.R. 567, the testator stated in his will, “If I survive my wife and inherit under her will…” and the will was held to be conditional on his surviving the wife. Unless and until the specified condition occurs, the will cannot take effect.

 

WHO CAN MAKE A WILL?
There are the elementary criteria to be possessed by an individual before he is qualified in Law to make a valid Will. Which includes age and mental capacity.
Every adult in Nigeria is entitled to make a will under the Act irrespective of his religious affiliations or his station/status in life. Age of adulthood is a matter of law. Only Adults from 18 years in Lagos State (s3 Wills Law, Lagos) /21 years of age (s7 Wills Act) in States under the Wills Act can make Wills. An illiterate has the capacity to make a Will/attest to a will, but a jurat must be inserted. Also a blind person can make his Will but a blind jurat have to be included
Section 7 Will Act – 21 years
Section 3 Wills Law Lagos – 18 years.

The EXCEPTION to the above rule is a privileged Will allowed to be made by members of the Military who are below the age limit of adulthood as follows;
Soldiers in actual military service (at war),Sea men at sea,mariners at sea, crew of commercial airlines in the Air
SECTION 11 WILLS ACT; SECTION 6 WILLS LAW LAGOS.

 

REQUIREMENTS FOR A VALID WILL.

 

1. WRITING
No particular form of writing is necessary.
It may be typed printed, handwritten (holograph) or a combination of these
The language must not only be English. WHITING V. TURNER the court held as valid a will written in French language
S. 9 WILLS ACT 1837,
S. 4. WILLS LAW LAGOS

2. SIGNED BY THE TESTATOR
Signature by the testator is a fundamental requirement for a will to be valid.
A signature may be an initial, a cross, rubber stamp,
The signature must be what the testator intended and it must be complete.
Signature does not include sealing as was held in ELLIS V. SMITH but, IN THE GOODS OF EMERSON SEALING coupled with INITIALS on the seal was held as signing.
A thumb impression was accepted as signature IN THE ESTATE OF RANDLE (NELSON V. AKOFIRANMI)
Where the testator is illiterate or blind, a jurat should be inserted indicating that the contents of the will were first read and interpreted to him and he, understood before affixing signature.

3. It must be voluntarily made – intention of the testator and nothing else. There are instances where a will was challenged on the ground that a will was not voluntarily made. For a will to be valid there must be absence of duress, coercion or undue influence.

4.It must be duly executed in accordance to law e.g. section 9 of the Wills Act.

5.It must be made with a sound disposing mind and at testamentary age e.g. a lunatic cannot make 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.

EXECUTION OF A WILL.

1. Execution is done by the TESTATOR in the presence of at least 2 witnesses who must in his presence also attest to the Will

2. Execution by a representative duly authorised by the testator SIGNING it in the PRESENCE of the testator and at least 2 other witnesses

3. By the testator himself pre signing it and then acknowledging his signature in the presence of at least 2 witnesses.
S. 9 OF THE WILLS ACT.

 

BENEFICIARIES AND THEIR SPOUSES ATTESTING A WILL.

The general rule is that a beneficiary to a Will and his/her spouse cannot take the gift made to them under a Will if either of them is a witness to the Will.
Any gift made to such person will be rendered null and void.
A benefiting witness/spouse is only disqualified from taking the gift made under the Will, but is a competent witness to testify on the facts of due execution of the Will.
S. 15 OF THE WILLS ACT
S. 8 OF THE WILLS LAW OF LAGOS.

EXCEPTIONS TO THE ABOVE RULE
1.Where a witness had SIGNED the Will before MARRYING a beneficiary under the Will

2.There are more than 2 witnesses who attested to the Will and one of them benefited from the Will

3.The gift was made in settlement of a debt
The gift was subsequently confirmed in another Will or codicil, which is not attested to by the beneficiary.

4.The rule does not apply to privilege wills
The witness is subsequently appointed a Solicitor to the Will which contained a charging clause.

5.Where the person present merely signs that he agrees with the contents of the Will but not as witness.

 

As stated earlier, a will is an instrument through which a person, while alive, provides for the disposition of his properties to designated persons, which will come into operation after the death of the testator. To make a valid Will, it must be in accordance with the law. An invalid will is tantamount to not making a Will at all. This piece is all about what you need to know about making a Will. A legal practitioner should be able to let you know on the type of will to adopt and why you should make a will.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s