LIMITATIONS TO TESTAMENTARY FREEDOM

Testamentary freedom is a concept in the law of wills that refers to a person's right to allocate his assets as he sees fit, without regard for societal constraints.

CHAMAN LAW FIRM

6/16/2022 4 min read

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LIMITATIONS TO TESTAMENTARY FREEDOM

Testamentary freedom is a concept in the law of wills that refers to a person's right to allocate his assets as he sees fit, without regard for societal constraints. A Will is essentially a legal document in which the testator indicates how he or she wants his or her possessions dispersed when he or she dies. A beneficiary is a person who is appointed to receive any of a testator's assets. The purpose of a will is to allow a person to specify what should happen to their belongings and how their affairs should be handled after they pass away.

Testamentary freedom is a key component of the 1837 Wills Act, which was in force in Nigeria prior to the implementation of Wills Law in several states. The Wills Law, Cap 133, Laws of Western Region of Nigeria 1959, is the relevant law in most states carved out of the Old Western Region. While Oyo and Delta States have passed their own Wills Laws, the Wills laws in effect in the other states carved out of the old Western area are essentially a reproduction of the old law with minor changes such as the state's name and enacting powers, among other things.

Absolute testamentary freedom, according to numerous laws and customary customs, may cause unnecessary hardship to dependents and will be contradictory to usual practices.

Limitations placed on testamentary freedom are Provisions for family and dependents, customary Law limitation, Islamic Law.

PROVISION FOR FAMILY AND DEPENDENTS

The Wills Laws of Lagos, Kaduna, Abia, and Oyo States contain this restriction. There are situations that warrants an application by a spouse for this reasonable financial provision, implies such financial provision as would be reasonable in all the circumstances of the case for the spouse to receive, whether or not it is required for his or her maintenance.

For example, Section 2(1) of the Lagos State Wills Law states that where a deceased is survived by:

a. the deceased's wife or wives or husband; and b.

(b) the deceased's child or children,

Such person or individuals may petition the court for an order on the grounds that the deceased's estate, as determined by his will, is not being distributed in such a way as to provide fair financial support for the applicant.

Subsection 3 of the same provision stipulates that the application must be filed within six months from the grant of probate.

WHO IS REGARDED AS A DEPENDENT?

Although the rules are identical, there are differences in the provisions for family and dependents in Lagos, Kaduna, Abia, and Oyo States. In these states, the definition of who is considered a dependant varies. For example, in Lagos State, a dependent is defined as a parent, brother, or sister of the deceased who was being supported entirely or partially by the deceased immediately before his or her death.

Dependents in Kaduna, Oyo, and Abia are people who are being supported by the deceased, either entirely or partially, if the deceased was contributing a significant amount of money or money's worth towards that person's reasonable needs.

ISLAMIC LAW RESTRICTIONS

A testator cannot dispose of more than one-third of his assets by will without the agreement of his legitimate heirs, according to Islamic Law (his heirs under Islamic Law). The Wills Law of Kaduna State, the Wills Law of Oyo State, the Plateau State Wills Edict, the Bauchi State Wills Law, the Kwara State Wills Law, and the Jigawa State Wills Law currently cover this restriction.

The provisions of Wills Law, on the other hand, do not apply to a person who was subject to Islamic Law previous to his death.

As a result, wills created by those who adopt Islamic law are not governed by the laws of these states. An example of such provision is section 2 of Wills Law, Kaduna.

CUSTOMARY LAW RESTRICTION

This statutory restriction recognized that complete testamentary independence could disrupt some of our Customary Laws' established rules. A testator cannot seek to exclude the customary law restriction because it is so absolute.

The limits in Lagos State provides that: ‘It shall be lawful for any person to bequeath or dispose of all property to which he is entitled, either in law or in equity, at the time of his death, by will executed in accordance with the provisions of this law - Provided, however, that the provision of this law shall not apply to any property to which the testator had no power to dispose of by will or otherwise under customary law to which he was subject.’ This restriction section 1(1) of the Lagos Wills Law covers not just properties under customary law but also any property whatsoever that the testator has no authority to dispose of.

The numerous constraints must be evaluated and flexible in light of societal changes to ensure that no injustice is meted out to dependents while also ensuring that the deceased's desires are fulfilled without restriction after his death.

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

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