KEY QUESTIONS ON MAKING A WILL IN NIGERIA

Introduction

Before the advent of the colonialists, estate succession was mainly subject to the whims and caprices of a property owner, as well as customs and traditions of his tribe. The people of Nigeria had a completely different ways and manners by which properties were being shared as there were many tribes. Some were by bequest in the life time of a property owner, or by the dictates of a deceased person before his or her death. This practice was based on customary law and was fraught with several shortcomings, resulting in discriminatory practices. With the coming of the colonialists and their introduction of the common law, doctrines of equity and statutes of general application (all imported from England) in Nigeria and other Commonwealth Nations, the local customs and traditions were subjected to repugnancy tests. Any custom or tradition that was found to be repugnant to natural justice, equity, good conscience and public policy were declared null and void for being barbaric. For instance, under the Igbo’s customary law, a female cannot inherit from her parents after death. This custom was later invalidated by the Supreme Court in Mojekwu v Mojekwu (1997) 7 NWLR, (Pt. 572) 283.

The introduction of the concept of Will was aimed at addressing customary laws on succession, that were largely deemed to be repugnant. Before and after Nigeria’s independence in 1960, various statutes governing Will were introduced to Nigeria and other Commonwealth Nations, which include:

1. Wills Act of 1837
2. The Wills (Amendment) Act of 1852;
3. Wills Law of Western Nigeria, 1958;
4. Wills law of Lagos State and other states of the federation;
5. Administration of Estate Laws of the various states;
6. Evidence Act of 2011 (as amended);
7. High court (Civil Procedure) Rules of the various states;
8. 1999 Constitution (as amended); and
9. Judicial Precedents.

The introduction of the Wills laws has not erased the application of custom and tradition. Section 3(1) of the Wills Law of 1959, provides to the effect that subject to any customary law relating thereto, it shall be lawful for every person to devise, bequeath or dispose by his Will, all his real other personal estates which he shall be entitled to, either in law at the time of his death. Also, section 1(1) of the Wills Law of Lagos State also provides that, it shall be lawful for every person to bequeath or dispose, by his Will executed in accordance with the provision of the Law, all property to which he is entitled, either in law or in equity, at the time of his death. Provided that the provision of the Law shall not apply to any property which the testator had no power to dispose by which or otherwise under Customary Law to which he was subject. See Odunewu v. Agoro (2022) 7 NWLR (Pt.1830) 567.

The foregoing presupposes that a testator, while making a Will, should be mindful of the customary law on succession of his domicile in order not to dispose the property in which he does not have the liberty to dispose to persons of his choice except as prescribed by the customary law of his domicile, e. g. Bini customary law etc. In the case of Idehen v. Idehen (1991) 6 NWLR (Pt.198) 409 SC, the Supreme Court held that under Bini customary law, the Igiogbe, which is the house where a deceased lived in his lifetime, should be inherited by the eldest surviving son of the testator to the exclusion of any other person.  The case of Lawal Osula v. Lawal Osula (1993) 2NWLR (Pt. 274) CA established further that an eldest son who survives his father and who is entitled under Customary Law to inherit the principal house in which his father lived and was buried (Igiogbe) cannot be deprived of it in a Will made by the father.

What is a Will?

A Will refers to a document made during the lifetime of the maker (called testator), detailing how his or her properties are to be shared amongst the stated beneficiaries after his or her demise. It can also be defined as a legal document in which a testator names his properties and location, the beneficiaries and what they take, as well as the executors that will manage, supervise and execute his wishes and expressions.

A testator has the liberty to dispose his property in the way and manner he likes, and no one can modify the Will, in so far it is not repugnant. See Asika v. Atuanya (2013) 14 NWLR (Pt. 1375) 533. A person is said to have died testate where he makes a Will before death, and died intestate where he fails to make a Will before his death.

What are the Types of Will?

Wills are of different types, namely:

i. Statutory Will: This is a type of Will fashioned after the provisions of any relevant Wills Law. It is a type of Will in which the provisions of laws are strictly followed;

ii. Nuncupative Will: otherwise called Death Bed Wishes. In this type of Will, oral instructions are given to the heirs by a Testator, dictating to them how his estates are to be distributed after his or her death.  Example of this is where a Testator makes death bed wish when he feels death is imminent;

iii. Mutual Will: A mutual Will is one made by two or more persons, either relations, friends or co-workers, who have agreed on form the distribution of their respective or joint estates will take. A Mutual Will is not revocable by one Testator except by all, and will only take effect after the death of all the makers parties.

iv. Conditional Will: this dictates that certain condition or conditions must be fulfilled before the Will can take effect. For instance, a Testator may dictate that his estates should not be distributed until all his children attain the age of puberty or other specific age, or that a certain beneficiary will not benefit until he or she performs a task;

v. Privileged Will: This is type of Will made for service men, or a seaman.in actual service. Section 11 of the Will Act provides a Privileged Will not be rendered invalid if all the formalities are not satisfied.

What are the Features of a Will?

The following are some of the features of a valid Will:

1. It is a self-decision and expression of the maker;
2. Unlike settlement inter vivos (distribution during the life time of a Testator), Will is ambulatory in nature. That is, Will takes effect after the death of the maker;
3. It is revocable during the lifetime of the maker. A maker of Will can revoke, alter or amend his wishes before his demise;
4. It is all about distribution of estates of a deceased person; and
5. It is regulated by various laws.

What are the requirements of a valid Will?

Section 4 of the Wills Law of Lagos State provides the requirements for the validity of a Will, which are as follows:

1. It must be in writing, handwritten or typed. By virtue of section 9 of the Wills Act 1837, every Will other than privileged Wills (Wills of certain soldiers, sailors and airmen) must be in writing and signed at the foot or end by the person making it or by someone in his presence and by his direction, and the signature must be made or acknowledged by two or more witnesses, who must be present at the same time and must attest and subscribe the Will in the presence of the testator.
2. It must be signed by the testator or signed in his name by some other person in his presence and by his direction, in such place on the Will so that it is apparent on the face of the Will that the testator intended to give effect by the signature to the writing signed as his Will. This signature can be the testator’s name, initials, mark, thumbprint and or rubberstamp. This is otherwise called attestation;
3. The testator must make or acknowledge the signature in the presence of at least two witnesses present at the same time. The acknowledgment could be by words or conduct or even by gesture. See Okeke v. Okeke (2019) 17 NWLR (Pt. 1701) 287. However, it is preferable if these witnesses are the named executors in the Will.
4. The number of executors required to attest to the Will is minimum of two, but can be more;
5. The witnesses must attest and subscribe to the Will in the presence of the testator but no form/method of attestation or publication is specified by law.

What is the implication where Testator’s Signature is Missing in a Will?

A signature in this respect, is a maker’s name, mark or initial that he uses in signing documents and or letters. Signature is a distinctive pattern by which the Testator can be said to be the same person who signed the document.

In the absence of an authentic signature of a Testator in his Will, one that is incontestable, it will render the Will invalid for failure to fulfill the provision of section 4 of the Wills Law of Lagos State. See Odunewu v. Martins (2011) 8 NWLR (Pt. 1250) 588. The implication of this is that it might lead to long, bitter and avoidable court action between the heirs, or with the Executors.

It should be noted that no signature under the section or under any other provision of the Law shall be operative to give effect to any disposition or direction which is underneath or follows it, nor shall it give effect to any disposition or direction inserted after the signature of the maker. This explains the importance of a signature in a Will. The signature of the Testator in a Will locks the Will and renders invalid anything that comes after the signature. See Odunewu v. Agoro (2022) 7 NWLR (Pt. 1830) 567-568.

Who are the Beneficiaries of a Will?

Ordinarily, spouse, children, other blood relations, friends and staff of the Testators are to be the beneficiaries. Others not mentioned might be accommodated by a Testator in a Will. There are some categories of persons that cannot benefit from distribution of a Will.  For instance, Section 15 of the Wills Act provides that a witness or spouse of a witness to a Will shall lose his bequeath.

What are the advantages of making a Will?

1. The testator distributes his estates according to his or her desires;
2. The testator must have known and satisfied with the integrity of his Will’s executors. Therefore, the Testator has the benefit of appointing people he trusts as his executors who have the duty to carry out his wish.
3. It gives the testator the opportunity to appoint trusted persons as guardians of the infants, if any;
4. It displaces the application of the rules of customary laws to a person’s estate upon intestacy;
5. A Will displaces the application of the rules of statutory devolution. See Section 49 of the Administration of Estate Law of Lagos State.
6. A Will can largely prevent, or limit litigation, disputes and animosity amongst the heirs;
7. A Will can be used to keep his heirs together, especially blood relations, as one strong family.

Who is an Executor of a Will?

An executor is a person appointed by a Testator in a Will to administer the property of the testator and carry into effect the dictations of the Will. The ordinary method of appointing an executor is for the testator to name in his Will specific persons to be his executors. Where a Testator fails to nominate a person to be his Executor, any person who upon the terms of the Will, has been appointed to perform the essential duties of an Executor is called an Executor according to the tenor of the Will, and is entitled to a Grant of Probate. See Mudasiru v. Abdullahi (2011) 7 NWLR (Pt. 1247) 619-620.

AN executor is expected to be trustworthy, loyal to the Testator, and such who will not be greedy or fraudulent. Therefore, a Testator is expected to have warned and convinced himself that the personalities and integrity of the nominees are not in doubt.

An Executor who is named as a beneficiary will not benefit from such a Will. However, a Testator is free to instruct that Executors be given certain amount of money, or any other means of payment, as mobilization or compensation fee for their services. 

What does Testamentary Capacity of a person to make Will mean?

The term testamentary capacity means the conditions precedents to make a Will.  A testator must possess the following capacities in order to have a valid will. They are:

1. Age: It should be noted that the testamentary capacity in terms of the age of the testator varies according to the wills law of each state. For instance, Section 7 of the Wills Act provides that the age of a person capable of making a will is 21years old, while Section 3 of the Wills Law of Lagos State makes it 18 years.

2. Mental Capacity: This capacity is often described as the ability of a testator to recognize the natural object of his estate, and the ability of the testator to understand that he is planning to dispose off his estate after his death. See Kwentoh v. Kwentoh (2010) 5 NWLR (Pt. 1188) 566. A person of unsound mind cannot make a valid Will, even though some argue lucid period can be an exception. In Okelola v Boyle, the supreme Court observed that no person is capable of making a Will who is not of sound mind, memory, and understanding. The relevant time to consider whether a testator possesses a sound disposing mind is firstly, when he gives instruction for drafting of his Will, and secondly, when he executed the Will. See Kwentoh v. Kwentoh (2010) 5 NWLR (Pt. 1188) 566. However, there is a presumption in respect of the mental capacity of a Testator at the execution stage. The law presumes that the state of the deceased’s mental capacity would continue until and unless the contrary is proved, and the onus is clearly on anyone who alleges the contrary to prove that the sound disposing mind of the deceased no longer existed at the time the Will and Codicil were made. This is premised on the provision of the Section 149 (B) of the Evidence Act that presumes that a state of things shown to exist continues to exist unless the contrary is proved. See also Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354) 552.

However, a blind person or illiterate can make and attest a valid Will under strong caution, and relevant laws must be strictly followed e. g. Illiterates Protection Law. It should be added that before a blind person or illiterate attests to a Will, there must be clause for jurat. The importance of this clause is to establish that the contents of the Will have been sufficiently read and explained to the maker, who appears to be satisfied before attestation.

Does Physical Infirmity of a Testator affect his mental capacity of making a will?

It is possible for a person to be very ill but nevertheless remain alert, stable and capable of giving natural instructions and advice. See Mabogunje v. Adewunmi (2006) 11 NWLR (PT 991) 264. In the above case, the Court of Appeal stated that the trial court labored under the misapprehension that the physical infirmities of the deceased necessarily affected his mental capacity, even though reverse was the case. This presupposes that physical infirmity of a Testator that does not affect his mental capacity will not render a Will invalid, in so far as he understands his actions of disposing his properties under no external influence.

Who can have custody of a Will?

A Will can be kept safe in various places, and a Testator has the choice of choosing where he wishes to keep his Will.

1. It can be kept at the Probate Registry with a prescribed lodgment fee. See Odunewu v. Martins (2011) 8 NWLR (Pt. 1250) 574. Also, keeping a Will at the Probate Registry is more advisable because it makes it easier for the Will to get probate or validation by the court. And until a Will gets probate, it cannot be said to be valid or authentic.
2. It can be kept with the maker’s bankers;
3. It can be kept in the solicitor’s office, i.e. the solicitor that drafted the Will;
4. An executor of the Will can also keep it;
5. It can also be kept by the testator in his safe box or any other safe options.

However, it is advisable that a testator should not choose to keep his Will himself for security reasons.

Can the validity of a Will be contested in Court?

Yes. A Will may become contentious where there is anything that creates suspicion. An overriding condition for the validity of a Will is that it must be completely free from any suspicious circumstances whatsoever; and the court, unless the suspicion or suspicious circumstances is removed will pronounce against it and refuse probate. See Dawodu v. Isikalu (2019) 4 NWLR (Pt. 1663) 419.