Drafting a will is important for several reasons, regardless of where you live or your cultural background. A will is a legally recognized document that a person (the testator) uses to specify how their assets and property should be administered after they pass away1. It is a legal declaration of the testator's intentions and wishes for the administration and allocation of their estates to heirs or beneficiaries. If a deceased individual does not create a will, it may not be possible for them to leave a gift for charity or for persons who are not related to them.
The Supreme Court in the case of Asika v. Atuanya2 stated that a will can be defined in two ways. The first definition is philosophical and represents the entirety of the testator's wishes or what he wills to happen after his death. The second is the paper or documents in which that intention is expressed, which is tangible.
While it is necessary for a testator to have a will, it defeats the purpose if the will is not valid or if it is debatable. The following are things to be considered while drafting a valid will in Nigeria.
A). Testamentary Capacity: In common law, testamentary capacity refers to a person's legal and mental competence to create or modify a valid will3. Mental competence means the testator must have been of sound mind, memory, and comprehension. This guarantees that testators are cognizant of the character and implications of the will they are forming. While considering the legal competence to create or modify a will, the age varies from geographical location to location.
The age requirement may be stated as follows:
- A person must be twenty-one years old to legally make a will under the Wills Act.
- The legal age in Lagos State is eighteen years to create a will4.
- The legal age in Kaduna State is eighteen years old to create a will5.
Other states in Nigeria have their requirements indicated in their wills law, in the case that it is not included, the wills Act will prevail.
A seaman, military member, or soldier serving in the actual armed
forces may make a will even though they are minors, and they will
need not adhere to the strict legal formalities. These are examples
of the exceptions to the age restriction as indicated above.
For testamentary capacity and mental disposing capacity, the following must be equally present:
- The testator must understand that he is giving his property to one or more objects of his regard;
- He must understand and recollect the extent of his property.
- He must also understand the nature and extent of the claim upon both of those
whom he is including in his will and those he is excluding from his will.
Onu J.S.C. noted in the case of Okelola v. Boyle6 that no one who lacks mental, memory, or comprehension capacity is able to make a will. Both the testator's memory and his state of mind must be sound in order for him to be able to develop the testamentary intentions in the will and to remember the various people who should be taken into consideration as potential beneficiaries.
B) Form and Execution:
– The will must be in writing. It can be handwritten, typed, or printed.
– The testator must sign the will at the end. If the testator is unable to sign, someone else can sign in their presence and at their direction.
– The will must be attested to by at least two witnesses present at the same time. These witnesses must sign the will in the presence of the testator.
A will would be deemed void if it was not carried out in compliance with the aforementioned conditions. The person upholding the will bears the legal burden of proof of the proper execution of the will.
C). Religious and customary limitation: In regions where Sharia law is applicable (primarily in the northern states) and for testators subject to Islamic law, Islamic principles govern inheritance and will-making. Under Sharia, certain shares of an estate are predetermined for specific heirs (such as children, spouses, and parents), and individuals cannot freely distribute their entire estate as they wish. Also, some customs can put limitations on will-making in Nigeria. For instance, In the Bini Customary Law case of Idehen v. Idehen7, the testator left a testament in which he bequeathed his two houses, where he had lived during his lifetime, to his eldest son. But since the two residences were expressly bequeathed to the son, who predeceased him, they would inherit the leftover fortune. But according to Bini customary law, these two homes were his Igiogbe, or family seat, and they automatically passed to the oldest surviving son of the deceased after the testator's second burial rites were completed, disqualifying all of his other children. In order to have the will declared invalid due to its inconsistency with Bini Customary Law, the testator's oldest surviving son and a few other children filed a lawsuit. The trial court determined that the petitioner was, in fact, entitled to inherit the two houses that make up the Igiogbe since he was the oldest surviving son under Bini customary law. Consequently, the court declared the portion of the will that allocated the houses to the eldest son who had passed away to be invalid, while upholding the validity of the remaining portion. The plaintiff's claim to the two residences was affirmed by the Court of Appeal, but the will as a whole was ruled invalid because all of its dispositions were invalid. After a second appeal, the Supreme Court ruled that Section 3 (1) of the Old Bendel State Wills Law8 only addressed the subject matter of a death, meaning that it limited the property that could be passed under a will. It was not meant to take away a testator's testamentary capacity, or their ability to create a will. As a result, the trial court's decision was upheld and the Court of Appeals was overturned.
D). There must be an intention by the testator to create a will.
E). The will should clearly identify the beneficiaries (those who will inherit the testator's assets) and specify the assets or properties they are intended to inherit. Vague or ambiguous language can lead to partial intestacy.
F). Witnesses of the will cannot be beneficiaries of the will. This would help avoid conflict of interest and avoid future contesting of a will. It equally strengthens the validity of a will.
G) Executors of a will must be appointed by a testator in a will. The executors are people who will ensure the estate is distributed in accordance with the provisions of a will. Once probate has been granted, a document called assent must be prepared to ensure the property is passed to the beneficiary as stated in the provisions of the will.
H). Lodgment of a will: A will needs to be filed or maintained with a state high court's probate registry. A will may be held outside of the probate register, such as at the Testator's solicitor's office. However, it must be brought to the high court's probate registry upon the Testator's passing.
FEATURES OF A VALID WILL.
- It is testamentary, this simply means it takes effect after the death of a testator.
- A will is ambulatory, which means it can be changed by the testator at any time before his death.
- A will is voluntary that is it must be independently and freely done by the testator without pressure or undue influence from other persons.
- It is prepared, signed, and attested to.
- It identifies the property and names the beneficiaries of a gift.
In conclusion, drafting a will is necessary to protect the interest of beneficiaries, ensure the peace of mind of the testators, prevent the stress of applying for a letter of administration after death, and ensure the wishes of testators are carried out. However, in order to ensure the above, careful consideration of the highlighted elements is required.
Footnotes
1. Sitkoff, R.H. and Dukeminier, J., 2017. Wills, trusts, and estates. Aspen Publishing.
2. Asika V . Atuanya (2008) ALL FWLR part 433, p. 1293 at 1317
3. Anthony, N.A.M., 2022. EXAMINING THE CONCEPT OF A VALID WILL IN NIGERIA. AKU: An African Journal of Contemporary Research, 3(1).
4. Section 3 of Lagos State Wills law.
5. Section 6 Kaduna Wills Law.
6. OKELOLA V BOYLE 1998] 2 NWLR (PT. 539)
7. ( 1991) 6NWLR (Pt. 98) 32
8. Wills Law of Bendel state
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.