EFFECT OF WITNESS AS BENEFICIARY IN A WILL

A witness to a will is someone that does not stand to inherit under the terms of the will.

CHAMAN LAW FIRM

6/14/2022 3 min read

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EFFECT OF WITNESS AS BENEFICIARY IN A WILL

WHO CAN BE A WITNESS?

As part of the Wills Act, witnesses are necessary to ensure the document becomes official and legally binding. Without witnesses, your Will is simply an ‘official looking’ document. Selecting your witnesses is an important step in the process. Most states require that witnesses be “disinterested”. In other words, this is someone that does not stand to inherit under the terms of the will. A beneficiary’s spouse may also be disqualified from serving as a witness. If a beneficiary does serve as a witness, the will’s gift to that person could be declared void by a court, but the rest of the will would remain in effect. Each witness must be a legal adult, which usually means 18 or over. The lawyer who drew up a will can also serve as a witness when the will is signed, even if he or she is named as the executor and will profit later from charging fees for the executor’s work.

The minimum criteria are: ·

  • Family members

  • Your husband/wife or civil partner

  • Any of your beneficiaries, who are the people you intend to inherit from your Estate

  • The husband/wife or civil partner of a beneficiary in your Will

The law requires that the execution (signing) of a Will should be attested by at least two witnesses. The testator can choose persons of his choice to attest the execution of the Will. However, can a witness to the execution of a Will also be a beneficiary under the same Will?

Under Nigerian law, a witness to the execution of a Will cannot also be a beneficiary under the same Will. Such a witness or his/her spouse cannot be given any gift by the testator under his Will. If a person who was an attesting witness to a will is given any gift under the Will or if his/her spouse is given a gift under such a Will, such gift would be invalid. It should be noted that the entire Will does not become invalid; it is only the gift made to such a witness or his/her spouse that will fail.

The law therefore prohibits a witness from being both a witness and a beneficiary; and such a witness’ spouse cannot be given any gift under the Will also.

There are some situations where the law would permit a witness or his spouse to take benefit of the gift given under the Will. The recognised instances are:

1. Subsequent Marriage – If a gift is made to a beneficiary and the witness to the Will subsequently marries such beneficiary under the Will, the gift given to the witness’ spouse remains valid. Thus, if the witness gets married to a person who is a beneficiary under the Will after the Will was made, such a gift made to the witness’s spouse remains valid.

2. If the gift made to the witness or his/her spouse under the Will is in satisfaction of a debt owed the witness or his/her spouse by the testator, such a gift remains valid.

3. If the gift made to the witness or his/her spouse is confirmed in a supplementary will (Codicil) or another Will to which the witness did not attest, it remains valid.

4. When there are more than two witnesses who attested the Will, then, a gift made to one of the witnesses or his/her spouse remains valid.

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

EMAIL: chamanlawfirm@gmail.com

TEL: 08065553671, 08024230080