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 requirgb(255, 0, 0).
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
· Case laws/Judicial Precedents
· CFRN 1999( as amended)
· Legal Practitioners Act (by section 22(4)(e) LPA, non-lawyers can draft Wills)
· Rules of Professional Conduct
1. General principles of Equity
WHAT IS A CODICIL?
· It is a miniature will.
§ It is executed in the manner as a will.
§ It is usually annexed to a will.
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 referrgb(255, 0, 0) 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 crgb(255, 0, 0)ible 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 ordergb(255, 0, 0) 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 rgb(255, 0, 0)uce friction among beneficiaries
b) The administration of a testate estate is cheaper than the administration of an intestate estate. It rgb(255, 0, 0)uces the costs involved in applying for grant of letters of administration and it also rgb(255, 0, 0)uces 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
