WILL IN NIGERIA
The creation of a will in Nigeria is generally regulated by the Wills Act 1837 and the Wills Law of various states. Often, we tend to shy away from writing our wills because of the myth of associating making a will with anticipated death. Making a will is an integral aspect of the effective planning of one’s properties.
WHAT IS A WILL
A will is an expression by a person of wishes he intends to take effect only after his death; it speaks after the death of the maker and can be revoked during the maker’s lifetime. A Will can also be described as a testamentary document voluntarily made and executed according to law by a testator with a sound disposing mind through which he disposes of his property according to the Wills Law and gives other directives such as funeral arrangement.
KEY TERMS IN WILL
- Testator/Testatrix: The maker of a will is referred to as the testator (male) or testatrix (female).
- Testate: When a person who made a will dies, he is said to have died testate because he made a will before his demise.
- Intestate: When a person dies without making a will, he is said to have died intestate.
- Executors: These are personal representatives of a person who made a will, and who named his executors in his will (testate).
- Administrators: These are personal representatives of a person who dies without making a will (intestate).
- Beneficiaries: The person entitled to the properties or benefits under the will
- Estate: The total of the personal and real properties of a deceased.
- Codicil: This is an addition or supplemental to an existing will and it possesses all the attributes of a will. It must comply with all legal/formal requirements of a will and cannot exist on its own.
BENEFITS OF WRITING A WILL
- A will excludes the rules of inheritance under the statute and customary law.
- A testator has the opportunity of appointing the executors of his estate.
- The cost associated with the grant of letter of administration can be avoided.
- A testator can by his will, appoint a guardian for his minor children.
- A testator can give instructions by his will on his funeral arrangements.
TYPES OF WILLS
There are different types of Will in Nigeria, which can be briefly discussed as follows:
- Formal will
This is a will made per the 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.
- Statutory will
These are wills made following 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 the protection of mentally ill persons may order for a will for such persons.
- Nuncupative will
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, it is referred to as Death Bed Wishes.
- Mutual will
This will is made by two or more persons. They are reciprocal because they make provisions for each of the makers of the will, or an agreement between them to dispose of their properties in a particular way. Mutual wills are not revocable, except with the agreement of the other party.
- Privileged will
This is a will made by certain categories of persons in actual service. Special concessions as to form, age of the maker and mode of execution and attestation 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. See SECTION 11 of the WILLS ACT
- Holograph will
This is a Will written and executed in the hands of the testator himself which is usually not witnessed.
- 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.
- Conditional will
This is a will executed based on certain pre-conditions that must be fulfilled before the will can take effect.
6.0 CONDITIONS FOR A VALID WILL
- It must be duly executed per the statute. That is, the testator signs the will or directs another person to sign on his behalf in his presence, and his signature is attested by two witnesses in the testator’s presence. See Section 9 of the Wills Act.
- The content of the will must take effect only after the death of the maker.
- It must be made voluntarily, without any expression of duress, undue influence, and/or fraud.
- The testator must have the capacity to make a will at the time of making the will. That is, he must be a person of sound mind and must have attained the age of majority. See Section 7 of the Wills Act, Johnson v. Maja (1951) 13 WACA 290; Adebajo v. Adebajo (1973) 3 ECSLR {Pt. 1} 544; Okelola v. Boyle (1998) 2 NWLR {Pt. 539} 533.
- A property that is subject to customary law cannot be disposed of under a will. Idehen v Idehen (1991) 6 NWLR {PT198}382, Lawal-Osula v Lawal-Osula (1993)2 NWLR {Pt274}148.
- A beneficiary in a will must not act as a witness to the will. See Section 15 of the Wills Act
- The will must properly identify the beneficiaries and the properties bequeathed.
7.0 CUSTODY OF A WILL
After the making of a will, it is pertinent for the will to be kept in a safe place. Places, where a will can be kept, include:
- Probate Registry
- A personal safe deposit box
- Trusted friend or relation
- Executors named in a will
Although a will can be kept at several places, however, the best place for a will to be kept is at the Probate Registry.
CONCLUSION
Making of a will is of great necessity; it can be made when a person has acquired possessions that can survive him, where there are responsibilities and when the maker has the legal capacity to make a will. A person can write his/her will, however, it is advised to employ the services of a solicitor in preparing your will to avoid the incidence of legal technicalities.
By Damilola Oladimeji, an Associate at Resolution Law Firm
Email: info@resolutionlawng.com
