ALL YOU NEED TO KNOW ABOUT WILLS AND CODICIL IN NIGERIA
PROPERTY LAW TRANSACTION
CHAMAN LAW FIRM
7/19/2021 19 min read
OVERVIEW OF WILLS AND CODICIL IN NIGERIA
WHAT IS A WILL?
Ordinarily, a Will can be defined as the intention or wishes of a person which is carried out after his/her death. This is not the definition under statutory law. Prior to statutory definition, it is important to note that prior to colonial rule, disposition of a deceased property was done orally under the customary law or Islamic law. Where a deceased made oral disposition before his death, customary law would govern the disposition of his property. Under Islamic law, a testator has no full testamentary capacity as he can only dispose of one-third (1/3) of all his property to persons who are his heirs while two-third (2/3) will be distributed in accordance with Islamic law applicable in the state. AJIBAIYE V AJIBAIYE, SECTION 4 OF WILLS LAW OF KWARA STATE.
Under customary law, the oral disposition must be in accordance with the customary law hence; a testator cannot validly dispose of family property (shrine). This principle applies generally. Section 3 Wills Act 1837 provides that it shall be lawful for every person to devise, bequeath or dispose of his property at death by Will executed in the manner hereinafter required.
A statutory definition of a Will is that it is a testamentary document or instrument voluntarily made and executed according to law by a testator with sound disposing mind wherein he disposes of his properties and gives other directives as he deem fit. In Okelola v. Boyle (1998) 1 SCNJ, the Supreme Court defined a Will as a document by which a person makes a disposition of his property to take effect after his death.
A testamentary document comes to life at the death of the testator.
FEATURES OF A WILL
· It must be executed(signed by the testator) otherwise the man died intestate.
· It must be voluntarily made.
· It is a testamentary document.
· A disposition(a gift) precedes a will.
LAWS APPLICABLE TO WILL IN NIGERIA
· The Wills Act 1837 as amended by the Wills (Amendment) Act, 1852
· The Wills (Amendment) Act 1852
· The Wills Law of the various states
· Administration of Estates Laws of the various states
0. Evidence Act
· Marriage Act
· High Court of Lagos state( Civil Procedure) Rules of the various states
· Common law principles and the Principles of Equity
A Codicil is an attachment or addition of a Will. It is dependent on the existence of a Will. Where there is a codicil to a Will, the Will cannot be read in full without the codicil. The codicil does any of the following to a Will:
1) It can revoke it,
2) It adds to it or alters it,
3) It revives it,
4) republish a Will.
Everything applicable to the validity of a Will is applicable to it.
THIS IS THE FIRST CODICIL TO MY WILL of (name, address, occupation) made this ____day of __2013.
TYPES OF WILLS
The following are the types of Wills
1) Statutory Will: these are wills made in accordance with the provisions of the Wills Act 1837 or the relevant Wills law of the testator’s state. The features of a statutory will are:
§ It must be in writing pursuant to section 9 Wills Act 1837. Any form of language will suffice. It can be holographic in nature(handwritten) or typed.
§ It must be attested by at least 2 witnesses in the presence of the testator
§ It must be duly executed by the testator in the presence of at least two witnesses.
§ The testator must have testamentary capacity and intention
§ The testator is of statutory age.(18 in Lagos, 21 nationwide)
SEE SECTION 4 WILLS LAW LAGOS, OKELOLA V BOYLE
EXECUTION OF A WILL
Ø For a will to be valid as a will, it must be executed. Section 9 of the Wills Act.
Ø The testator’s signature may be made in any way, provided there is an intention to execute his will, it can be his thumb print, initials, stamp, name, a mark.EGENTI V EGENTI.
Ø A will does not need to be sealed. A will sealed but not SIGNED, is void.
DOCUMENTS REFERRED TO IN A WILL
A document referred to as a disposition in a will but not executed will be incorporated as part of the will. The following conditions must be met for the disposition to be valid:
§ The document must be in existence when the will was executed.
§ The will must clearly identify the document.
§ The will must refer to the document as already in existence.
WAYS OF EXECUTING A WILL
Ø Personal execution by a testator:
The following conditions must be met for this form of execution to be valid
§ It must be signed by the testator first in the presence of at least two witnesses
§ The two witnesses must be present at the same time when the testator is executing the will.
§ The two witnesses must thereafter attest to the execution in the presence of the testator..APATIRU V AKANKE.However, They need not witness in each other's presence.
Ø EXECUTION BY DELEGATION: testator can appoint someone to execute his will. The following conditions must be met:
§ The will must be executed in the presence of the testator.
§ The execution must be done pursuant to his instructions.
§ The execution must be witnessed by a minimum of two persons
§ The witnesses must be present at the time of execution.
§ The witnesses must thereafter attest to the will in the presence of the testator but NOT necessarily in each other's presence.
SECTION 9WILLS ACT, SECTION 4 WILLS LAW, PARKER V FELGATE,
Ø TESTATOR PRE-SIGNING THE WILL.(ACKNOWLEDGE SIGNATURE)
§ Acknowledge his signature in the presence of at least two witnesses present at the same time.
§ For it to be valid acknowledgement, he must draw the attention of the witnesses to the signature and not merely asking the witnesses to sign or attest ‘that paper’ as held in RE RAWLINS.
§ The witnesses must attest to the signature in the presence of the testator but NOT necessarily in each other's presence.
TAKE NOTE that although the witnesses need not know the content of the will, they must at least know that they are called to attest to the signature of thetestator's will as held in RE RAWLINS,
2) Nuncupative Will: oral will made according to customary law by a person in anticipation of imminent death as to the disposition of his property.There are conditions to be fulfilled before there can be a valid nuncupative will:
· The directives must be made in presence of at least two credible witnesses.
· It has to be made voluntarily.
a) The testator must have testamentary intention and sound mind.
· The beneficiaries must be specifically named and described so as to be ascertainable and identifiable
· The gifts (properties) must be specifically named and described so as to be ascertainable and identifiable
See AYINKE v. IBIDUNMI
3) Privileged Will: this is a departure from the essentials of a valid will in the sense that such a will is said to be valid if it is attested to by just one officer. All they require to be valid is that they must be made by those who are entitled to make privileged Wills and they must be in writing (EXCEPT IN LAGOS)and attested to by at least one person. The persons who are entitled to make privileged Wills are:
a) A mariner or seaman being at sea. See section 6 Wills Law of Lagos; section 11 Wills Act.
b) A crew of a commercial at air. See section 6 Wills Law of Lagos; section 11 Wills Act
c) Military personnel in active military service However, under s. 276 Armed Forces Act, section 193 Air Force Actthere are two conditions which a soldier making a privileged will must satisfy
i) The will must be in writing
· It must be signed by the military personal in the presence of a witness and the witness must attest to the signature in his presence.The will must be attested by an officer also in actual service or a government medical officer
ESSENTIALS OF A PRIVILEGED WILL
With the exception of Lagos(orally), it should be in writing.
It can be signed by the testator in the presence of at least one witness.
The testator must have testamentary capacity
Witnessed by at least one person.
Deals in respect of personaltyrather than real property. That is money and personal property.
SECTION 6 WILLS LAW OF LAGOS, Sea men etc under the age of 18 can make a will.
The reasons why people do not like making Wills are:
a) The belief that making a will can cause chaos among their children.
b) The disbelief in the Nigerian legal system of administration of estate.
c) The clash between customs/culture and wills. Example idi-Ogbe custom in Benin City.
A) Ignorance: people think that it is expensive or that it bring the reality of death to them
d) To avoid conflict between the beneficiaries and other persons interested after the testator’s death
RATIONALE/REASONS/ADVANTAGES OF MAKING A WILL
a) The following are advantages of making wills
Ø A Will displaces the application of customary rules of inheritance. Idehen v. Idehen.
Ø The testator has the satisfaction(a sense of fulfillment) of having ordered his affairs before his death.
Ø Reduces friction amongst the beneficiaries of the will.
Ø A Will displaces the application of the rules of statutory devolution. For instance, s. 49 Administration of Estate Law, Laws of Lagos state and section 39 of the Marriage Act.
Ø The testator has the benefit of appointing people he trusts as his executors.
Ø The testator has the opportunity of benefiting those he loved or owed a duty of care. MAJA V JOHNSON.
Ø Affords the testator the opportunity on expressing opinions and advice.
Ø Where he has an infant children, he is able to appoint for them a guardian
Ø It give the testator the opportunity of making speciality gifts.
Ø Making of a will saves time, energy and MAY reduce friction among beneficiaries
b) The administration of a testate estate is cheaper than the administration of an intestate estate. It reduces the costs involved in applying for grant of letters of administration and it also reduces the Inheritance Tax Liability where substantial assets are involved.
Ø Used to guarantee business interest or sustain investments of the testator.
ESSENTIAL FEATURES OF A VALID WILL
1) It must be in writing, except privileged will(IN LAGOS STATE ONLY)and a nuncupative Will. See section 9 Wills Act, section 4(1)(a) Wills Law of Lagos State and section 4 of the Statute of Frauds
2) It is testamentary. It takes effect upon the death of the testator, See section 24 Wills Act
3) It is ambulatory-it is floating as it has not crystallized, it can be revoked.
4) It must be freely and voluntarily made - made without force or coercion
5) It must be executed in accordance with the provisions of the law
6) The testator/testatrix must have a sound disposing mind (corpus mentis) at the time of making and executing the Will
7) It must disclose the intentions of the testator
TERMS USED IN A WILL
1) Testator(s) - a man who bequeaths his estate in a will.
2) Testatrix/Testatrices - a woman who bequeaths her estate in a will.
· Deceased/intestate - a person that died without leaving a will. Or some of the properties of the deceased where not bequeathed.
· Estate of a deceased. Bounty or properties of the dead eased..
3) Executors - persons appointed by the testator and named in the Will to manage the property
4) Administrators: persons appointed by the court to administer estate.
5) Testate: a person is said to be testate where he died leaving a VALID Will
6) Intestate estate means the estate of a person that died intestate
7) Executors manage the testate estate
8) Administrator administer the intestate estate.
NATURE OF A WILL.
§ A will is a mere declaration of intention in a person’s life time has no effect until his death.
§ It is revocable during his life time; it could be changed as often as the testator wishes.
§ It is ambulatory in nature as it is floating and can be revoked during the lifetime of the testator.
WHO CAN DRAFT A WILL?
Anybody can draft a will. This is because a will does not transfer an interest to the beneficiary. It is an assent that transfers interest in land. Section 22(3)(e) LPA
§ Instructions should be taken in writing by the solicitor.
§ The solicitor is to guide the testator as he makes his intentions known. However, avoid undue influence.
§ Issues of ambiguities should be clarified by the solicitor.
§ The lawyer must keep his language simple, devoid of complications.
Person that can make a Will/Capacity to make a Will
Everybody of statutory age with a sound disposing mind and memory can make a will. This includes sick, old persons, blind persons, Christain's, muslims and pagans.
1) Infants(persons under 21 years of age) generally cannot make a will. In Lagos, the testamentary age is 18 years.See section 7 of Wills Act and section 3 of Wills Law of Lagos respectively.. Any person under these ages cannot make a valid will except if it is a privileged Will and he is so qualified to make it.
2) A blind person can make a will. However, a Blind Person’s Jurat must be contained in the Will. See INSITFUL v. CHRISTIAN; Order 58 r 10 Lagos
a) Also an illiterate person can make a will. However, an Illiterate Jurat must be contained in the Will. See Order 58 rule 10 Lagos.
1) Sick person can make a will
2) Old person can make a will.
CAN A BLIND PERSON MAKE A WILL?
A blind person has capacity to make a will but is incompetent to attest to a will, the will of a blind person must be read over and explained to him and must be attested to in the presence of a Magistrate/Notary Public/Comissioner for Oath. INSTIFUL V CHRISTAIN.
VALIDITY OF A WILL
For a will to be valid, it must be duly executed and attested to by a minimum of two witnesses. WHITE V WHITE.
Nonetheless, any disposition made after the signature either in time or in space will not be effective as a valid disposition.
NOTE: LATER DISPOSITIONS AFTER A SIGNATURE WILL BE INVALID BUT THIS DOES NOT AFFECT THE VALIDITY OF A WILL.
A will is properly signed by the testator by affixing his thumbprint or impression or by simply making a cross indicating an intention to be bound. ADEBAJO V ADEBAJO.
EXECUTING ALTERATIONS IN A WILL
§ The formalities for signing and attesting a will under section 9 Wills Act also apply to all alterations made in the will after execution.
§ Same manner executing a will.
§ Any alteration on a will which is not signed as required above has no effect, in which case the alteration is ignored BUT THE WILL IS STILL VALID. Alterations must be counter signed.
§ When an unsigned and unattended alteration causes the part altered not to be apparent to the eyes, then that part of the will is deemed revoked.
§ The signature of the testator and that of the attesting witnesses may be appended near the alteration, in the margin opposite, at the foot or end of the alteration.
QUALITIES OF A WITNESS
· A blind person cannot be a witness to a Will even though he can validly make a will with blind person’s jurat. INSTIFUL v. CHRISTIAN; Order 58 r 10 of LAG.
· Another factor to be considered by a testator is the age of the witness. Younger persons are to be chosen and not older ones. An infant can attest to a Will, but he can only validly attest to a will if there are at least two adult witnesses- EGENTI v EGENTI.
1) A beneficiary or his spouse should not be made a witness to the Will because any gift to such beneficiary or his spouse under that Will fails and is void. See s. 15 Wills Act, s. 8 Wills Law (Lagos).
Where a lawyer allows a beneficiary or his spouse to attest to a Will, without properly advising the testator of the effect of that, the lawyer can be sued for professional negligence. See ROSS v. CAUNTERS; RE POOLEY.
2) The witness must be available.
3) Credible and trustworthy
However, there are exceptions to the above rule of beneficiaries or spouse as witness. If any of these exceptions exist, the gift will not be void. They are:
· Where there are at least two (2) other witnesses apart from the beneficiary or spouse of the beneficiary. See the proviso to section 15 Wills Act and section 8 Wills Law, Lagos.Note that this applies only in Lagos, Oyo, Abia and Jigawa
· Where the gift was made in settlement of debt owed by the testator.
· Where the Will is a Privileged Will. See Re LIMMOND
· Where the gift to the beneficiary is subsequently confirmed in a codicil which is not attested by the particular witness or his spouse. See RE MARCUS
· Where the beneficiary signed as a trustee and not as witness. See CRESSWELL v. CRESSWELL
· Where the spouse of the beneficiary attested to the will before marrying the beneficiary. That is, subsequent marriage. See APLIN v. STONE
· Where the witness merely sign as agreeing with the content of a will and not as a witness. See IN THE GOODS OF BRAVDA
· The rule does not apply to a secret trust. That is, where the testator leave the gift to the benefitting witness not directly under the Will, but as a beneficiary to a secret trust created under the Will, even if the beneficiary under the secret trust attests to the Will, his gift will not be void because he takes under the trust and not under the Will. See RE YOUNG.
RELEVANT FACTORS OUGHT TO BE CONSIDERED IN NOMINATING THE PERSONS TO BE WITNESSES. QUALITIES OF WITNESS:
i) Credible and trustworthy
ii) Person likely to be available to give evidence in court
iii) Person younger than testator
iv) Person of good health
v) Not a beneficiary or the spouse of the beneficiary
vi) Must not be blind
ii) Infant + two adults.EGENTI v EGENTI
BURDEN OF PROOF OF DUE EXECUTION
Ø This rests on the propounder of the will. That is, the executor who takes out proceedings to obtain probate in a solemn form.
POSITION OF SIGNATURE.
In executing a will, a testator can sign anywhere in a Will. See section 1 Wills (Amendment) Act of 1852; section 4(1) Wills Law Lagos and IN THE GOODS OF OSBORNE.
However any gift or instruction coming after the signature is invalid, although the Will remains valid. See ; RE HOWELL
Any alteration which is not apparent to the ordinary eyes is deemed invalid
This means the legal capacity to make a will. Section 3 of the Wills Law gives testamentary freedom to everybody. However, there are restrictions placed on the testamentary capacity of the testator.
ELEMENTS OF TESTAMENTARY CAPACITY
§ Age; generally, a testator must be 21 years to be able to make a will. Section 7 wills Act. In lagos, the testator must be 18 years old to be able to make a will. Wills made by infants will be termed INVALID. Exception to the above is privileged will.
§ VOLUNTARINESS: the testator must not be unduly influenced. The will must be truly his. He must have knowledge of and approve of every part of the will. Duress, undue influence will render the will made invalid..
§ MENTAL CAPACITY: the testator must have s sound disposing mind at the time of making the will and executing same. OKELOLA v. BOYLE.
§ What constitutes a sound disposing mind is a question of fact and not law.
§ The duty to prove the mental capacity of the testator is the affirming witness.
PRESUMPTION OF MENTAL CAPACITY
§ Where the will looks rational on the face of it, the testator is presumed to have the capacity to make the will. Section 168(3) Evidence Act.
§ It is also presumed that any serious mental illness from which the testator suffered from during a period prior to the execution of the will was continuing at the time of execution.CARTWRIGHT V CARTWRIGHT.
The test to determine whether the testator had mental capacity at the relevant periods was laid down in the locus classicus case of BANKS v. GOODFELLOW as follows:
· The testator must understand the nature of his act - that he is making his will and its effect.
· He must understand the extent of the bounty he is disposing.
vii) He must appreciate the claims on him-he must have a memory to recall persons who may benefit from his bounty.
· He must distribute the property in a rational manner.
However, this requirement of sound disposing mind at the time of giving instructions and executing was modified a little in PARKER v FELTGATE. Thus, in this case it was held that if the following below where complied with, even if the testator lacked a sound disposing mind upon execution the will is still valid.
· The instructions were delivered directly to the solicitor by the testator.
· The testator must have testamentary capacity as at the time he gave the instructions to his solicitor
· The solicitor must have prepared the will in strict compliance with the instructions of the testator.
· Even though he had lost his mental capacity at the time of executing his will, he must know that he is executing his will for which he had given prior instructions.
If however, the instructions were delivered through an intermediary, the will is presumed invalid if at the time of execution the testator lost his sound mind except the propounder is able to establish that:
1) The instructions delivered to the intermediary were clear and unambiguous
· The intermediary perfectly understood the instruction
· The intermediary honestly delivered the instructions given
· The solicitor also perfectly understood the instructions and complied with them strictly.
BATTAN SINGH V AMIRCHAND
WHERE A LEGAL PRACTITIONER CANNOT ASCERTAIN THE MENTAL CAPACITY OF THE TESTATOR, IT IS IMPORTANT FOR HIM TO INVOLVE A MEDICAL PRACTITIONER TO CONDUCT A TEST ON THE TESTATOR WHO WILL MAKE A WRITTEN RECORD OF HISFINDINGS.RE SIMPSON.
Validity of a Will:
The following affect the validity of a Will
1. Testamentary capacity of the testator
2. Mental capacity of the testator
3. The will being voluntarily made by the testator
4. The will being in writing
5. The will being executed in accordance with the Wills Act or Laws
Thus, the validity of a Will goes to testamentary capacity and due execution. If asked to comment on the validity of a Will in exam, comment on testamentary capacity and due execution.
Proof of validity of a Will: GENERALLY TWO WAYS OF PROVING THE VALIDITY OF A WILL(PRESUMPTION OF REGULARITY AND POSITIVE AFFIRMATIVE EVIDENCE) in the case of a solemn form
Where a will is challenged, the following can serve as means of proving the validity of the Will:
a) Presumption of regularity and due execution where the Will is properly attested to: where a Will appears ex facie regular then, in the absence of fraud, the court will presume its due execution. See section 168(3) EA, 2011. See IZE-IYAMU v. ALONGE (2007) 6 NWLR (pt. 1029) 84 where it was held that a Will will be ex facie regular if it is signed by the testator in the joint presence of at least two witnesses and dated. In such a case, the Will will benefit from the presumption of regularity. It must be noted that this presumption would apply even if the attesting witnesses are unable to remember and recollect the circumstances surrounding the execution of the Will.
This presumption can be rebutted by
· Direct evidence of attesting witnesses to negative due execution. CROFT V CROFT
· Reliable positive evidence of one of the attesting witnesses. Nodding v Alliston.
· Evidence by anyone directly affected by any disposition in the Will, showing irregularities directly affecting the due execution of the Will.
· Evidence of a handwriting expert showing that the execution of the Will was not done with the handwriting of the testator or some other person authorised by him to execute the Will on his behalf. See ODUTOLA v. MABOGUNJE (2013).
b) Leading Positive Affirmative Evidence: the due execution of a Will can also be proved by positive affirmative evidence. This could include evidence showing the activities of the testator before, during and after the making of the Will:
· Evidence that the testator made the Will himself. See CARTWRIGHT v CARTWRIGHT.
· Corroborated evidence of attesting witnesses. See ADEBAJO v. ADEBAJO
· Evidence of testator’s conduct before, during and after making the Will.
· Evidence of the general habits and course of life of the testator. See ADEBAJO v. ADEBAJO