BASIC REQUIREMENTS FOR WRITING A WILL IN NIGERIA.

A Will or Testament is a legal document by which a person, called the testator (male) or testatrix (female) expresses their wishes as to how their properties (called estate) is to be distributed at death, and names one or more persons called the executor(s) to manage the estate until its final distribution. It is simply a legal document in the testator, declares who will manage and own his estate after he dies. In a will, the testator expresses his wishes as to who will be his executors, the beneficiaries of his assets, and the guardian(s) of the minors who are beneficiaries of his will (if any). A Will when made by a testator has no effect before his death, but rather becomes active and fulfils the intention of the maker after his death. The testator must have the intention to distribute his properties as the absence of an intention by the testator to distribute his properties will invalidate the will. Where the testator wishes to add to, subtract from or revoke his Will, then he may make use of a Codicil. A Codicil is a supplementary Will by which a testator amends, alters or revokes what is contained in a Will.

There are various legislations guiding the making of Wills in Nigeria. Some of them are listed hereunder:

1. Wills Act of 1837;

2. Wills Law of various states;

3. Administration of Estate Laws of the various states;

4. High Court (Civil Procedure) Rules of various states; and

5. Evidence Act.

In Nigeria, a will could either be oral or written. An oral will (also called a nuncupative or deathbed will) is largely recognized under our various customary laws. It is the kind of will that is made by words of mouth, usually communicated to witnesses, but not written. Such wills are valid only in a few states and only in very limited and unusual circumstances. On the other hand, a written will is a formal will made according to the prescribed form as required by the various wills laws. It is the kind of will which is derived from the English Law and it is required to be signed by the testator and attested to by at least two witnesses. The major features of a written will are as follows:

1. It is testamentary; meaning that it takes effect upon the death of the testator.

2. A will is amendable and even revocable by the testator during his lifetime to reflect his desires or wishes at any given time.

3. A formal will is voluntary in nature; meaning that it must be independently written, free of any form of pressure or undue influence.

4. It is made, signed and witnessed in accordance with the provisions of various written laws guiding the making and writing of a will.

There are conditions which must be met in making a valid Will under the Wills Act. It should be noted that the making of Wills under customary laws and the Islamic law have their own systems, which are different from the statutory provisions. In writing a valid will, the testator must meet the following requirements:

1. AGE:

Only an adult can make a will. Such an adult must have attained the age of 21 years under the Wills Act or the age of 18 years under the Wills Law of Lagos State. Anyone that falls below the age of 18 or 21, as the case may be, lacks the capacity to make a valid will in Nigeria. See Section 7 of the Wills Act.

2. MENTAL CAPACITY:

A person making a will must possess a sound mind. The testator must have a sound disposing mind at the time he gives instructions and at the time the will is executed. There must be no infirmity or lunacy of any sort, no matter how slight. Therefore, in making a valid will, the testator must understand the nature of the acts of making a will, the extent of his property, the objects of his bounty and the manner of distribution. There are many parties in legal battles contesting the provisions of a will and the court is likely to set aside a will if there is conclusive proof that the testator did not have the mental capacity to comprehend what he was doing at the time the will was made or if the testator was unduly influenced to dispose of his properties as he did in the will. 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.

3. It must be made voluntarily. In other words, the writing of the will by the testator must be made in the absence of any expression of fraud, duress and/or undue influence.

4. It must be in writing. It can either be typed or hand written. The most preferred format is one typing it and printing as there can be mistakes with writing by hand. For it to be binding, the testator must put it into writing. The language must not only be written in English. In the case of Whiting v. turner (1903) 89 LT 71, the court held that the will which was written in French Language was valid.

5. SIGNATURE: For a will to be valid, it must be signed by the testator. By virtue of Section 4(1) (b) of the Wills Law of Lagos State, a signature is a distinctive pattern by which it can be said who signed a document, it can be a person’s name, mark, rubber stamp, initial or thumbprint. A Will is deemed to be valid if the signature is placed at, after, following, under, beside, opposite, or to the end of the Will. A Will not signed by the testator is invalid, the absence of the testator's signature goes to the root of proving the validity of any Will. Any distribution of property underneath the signature of the testator shall be invalid although the distribution of properties listed before the signature in the Will remains valid (see Odunewu v Martins (2011) 8 NWLR pt1250 at 585). Any alteration or correction in the Will after the testator has signed and the witnesses have appended their signature shall be invalid except the signature of the testator and the subscription of the witness is made in the margin, opposite or near such alterations and corrections. The testator is to sign in the presence of his witnesses. Where this is unattainable, then such signature must be acknowledged by at least 2 witnesses. For such acknowledgment to be valid, · The will must have been signed before the acknowledgment; · The signature of the testator must be visible to the witnesses at the time of acknowledgment; · The presence of the witnesses must be joint and physical.

6. The will must be signed by at least two witnesses. The witnesses must sign the Will in the presence of the testator. It is important to note that a witness cannot be a beneficiary to a Will, and any gift given to a witness will be a nullity (subject to certain exceptions). See Section 15 of the Wills Act.

7. The full name (including former name and alias), address and occupation of the testator must be stated.

8. The names and addresses of the executor(s) who will be in charge of the testator's assets must also be stated. Note that the omission of executors will not invalidate the will. Instead, a letter of administration with will annexed will be applied for on the death of the testator.

9. The will must sufficiently provide for the particulars of the witnesses to the will.

10. The full names and addresses of the beneficiaries in the will, and where the beneficiaries are minors, the particulars of the guardian appointed for them must be sufficiently stated.

11. The will must sufficiently state the particulars of the testator's assets and debts.

CONCLUSION

There are several benefits of writing a Will. One major benefit is that a testator can be assured in his lifetime that upon demise, the loved ones will be catered for as if he is still alive to provide for them. Another is that a will gives the testator an opportunity to make a positive expression of his wishes and desires. However, a Will is not valid unless it fulfills the above requirements. Where it fails to meet the above requirements, the estate may be declared intestate and the intestate succession laws will apply. When a Will is to be made, proper legal advice should be sought and obtained. This way, the intentions of the testator as to how his assets may be distributed is strictly adhered to and not invalidated for being inconsistent with the law.

NB: This article is not a legal advice, and under no circumstance should you take it as such. All information provided are for general purpose only. For information, please contact chamanlawfirm@gmail.com

WRITTEN BY CHAMAN LAW FIRM TEAM

E