What you should know about the validity of a will in Nigeria.
CHAMAN LAW FIRM
2/2/2022 6 min read
VALIDITY OF A WILL
A Will or Testament is a legal document by which a person, the testator, expresses their wishes as to how their property is to be distributed at death, and names one or more persons called the executor, to manage the estate until its final distribution. In a layman’s language, it is simply a legal document in which you, the testator, declare who will manage your estate after you die. It helps a person determine what happens to his properties/estate after his death; it also helps him to give any instructions he may wish to be carried out if he is no longer alive. Apart from deciding who gets your assets, a Will can also serve to declare who you wish to become the guardian for any minor children or dependents.
In Nigeria, a will could either be oral or written, oral wills being wills made by word of mouth are recognised under our customary or indigenous laws while written wills are governed by law and statutes. An oral will, which is also called a nuncupative or deathbed will, is a will that is spoken to witnesses, but not written. Such wills are valid only in a few states and only in very limited and unusual circumstances. In this report, we will focus on written wills.
THE VALIDITY OF A WILL
In preparing a will, a testator (person making his will) must have capacity to do so, meaning he must be of legal age (above 18yrs) and have mental capacity (he must be of sound mind). Furthermore, for a will to be valid it must be;
· It must be made voluntarily
· It must be in writing (either typed or hand written)
· It must be signed by the testator
· The signature of the testator must be acknowledged by at least 2 witnesses (it is advised that a beneficiary to a will must not act as a witness to the will).
· The testator must be of sound mind
· It must name the beneficiary or beneficiaries
· It must identify the property.
In the probate courts today, 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 understand 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.
A person who dies without making a will is described as a person who ‘died intestate’, and in such situations, certain members of the family shall apply to the probate registry of the High Court to be granted letters of administration of the deceased’s estate.
On this note, if a will is not valid under the Nigeria Legal System, the legal implication is that the person dies without making a will, and the family member have to approach the probate registry for letter of administration( this is applicable in most cases). Will validity might be proof in court; in this case the court will look into the fact surrounding the making of such will and might declare such will valid.
Sharing of property after divorce in Nigeria also regarded as settlement of property is the transfer of property of a party that may be jointly owned to the other spouse. This usually comes as an ancillary relief granted during divorce proceedings. Settlement of property must be contained in a divorce petition or answer and should not be an afterthought.
The power of the court to share the properties for the benefit of either of the spouse is contained in the Matrimonial Causes Act 1970 which provides as follows;
“in proceedings under this decree, by order require the parties to the marriage, or either of them to make for the benefit of all or any of the parties to and the children of the marriage such settlement of property to which the parties: or either of them is entitled (whether in possession or reversion) as the court considers just and equitable in the circumstances of the cases”
This legislation obviously empowers the judge who hears the divorce petition, to decide how property owned by the parties or either one of the parties is to be shared. This discretion must however be exercised in a way that is ‘just and equitable’.
Due to the plurality of Nigeria Legal System, there are different legal principles guiding settlement of properties under different forms of marriage i.e. under the customary law and under statutory provision (marriage under the Act)
SETTLEMENT OF PROPERTIES UNDER CUSTOMARY MARRIAGE.
Under the customary law, both the man and the woman can acquire property either before or during the marriage. The woman is not barred from holding or acquiring her own property. Also when the man acquires a property, he has sole interest or right over the property. When a marriage under the customary law is been dissolved, the woman has no right to claim for settlement of property even if she contributes to the acquisition of such property. She cannot through a court order compel her husband share the property with her.
SETTLEMENT OF PROPERTY UNDER STATUTORY MARRIAGE.
However under the statutory marriage (marriage under the Act) either of the parties can apply to the court alongside with the divorce petition for the settlement of properties. The legal framework for settlement of property is contained in Section 72 of the Matrimonial Causes Act as mentioned earlier. The property to be settled must belong to either of the parties to the marriage. The court cannot share a property that belongs to neither of the parties. The property can either be real or personal property.
Under the statutory marriage, one of the ways in which the court assess justice and fairness is when the party asking for property to be settled on him/her, shows or establish that he/she has contributed in concrete terms to the acquisition of the property. In KAFI v. KAFI, the wife argued that she gave all necessary moral and financial support to the petitioner (husband) apart from performing all domestic duties as a wife and all this was established. The Trial Judge said in his judgment;
“I accept her evidence and therefore finds that she contributed towards the purchase of some of the lands on which the houses ( now said to be belonging to the husband/respondent ) were built and that she contributed towards the development of the said properties as well as to the success of the business of the husband/respondent. The properties can be regarded as product of their joint efforts. She therefore deserves in my ruling to have a property settled on her for her benefit and that of the children irrespective of what the husband/respondent would want to do further for the children. The husband is therefore ordered to settle property at 15, Adeola Adeleye Street, ilupeju Lagos by deed on his wife/applicant accordingly”
Whenever a spouse says he/she contributed to the acquisition of a property or construction of a building, this must be proved before the court can grant the order for the property to be shared. In ONABOLU v. ONABOLU, the wife/petitioner claimed among other, against her husband that their joint matrimonial property be shared equally between them or sold and the proceeds of sale shared equally. The court having carefully examined all the pieces of evidence given by the wife/petitioner and the husband/respondent on issue of joint ownership of the property found that the evidence of the husband/respondent positively established that he bought the land over which the property was built. The Court of Appeal held to this effect:
“It is settled law that a person who claim to be the joint owner of a property must be able to quantify his contribution. He must give detailed particulars and support them where necessary with receipts of what he bought towards the building of the property…..”
FACTORS THE COURT MAY CONSIDER BEFORE SETTLING FAMILY PROPERTY
The court in determining the extent of the property to be settled, it would consider the circumstances of the case including the fortune of the parties and their responsibility.
In sharing of property, the court is usually guided by what is just and equitable. As such the court has a wide discretionary power to share properties as just and equitable. In exercising this discretionary power, Lord Denning in COOPER v. COOPER held that the court should act judiciously.
SHARING OF PROPERTY FOR CHILDREN
The children produced by a marriage are also member of the family. The family property maybe settled in favor of children in some circumstances.
The court will consider sharing of property for the benefit of any child below 21 years of age except in special circumstances where it is justifiable to settle the property for his or her interest even at the age above 21 years.
In conclusion, the application of the law on sharing of property is only applicable to marriages under the Marriage Act and not the marriages under the Customary Law. The presiding judge has a wider discretion to share the properties of couple upon dissolution of marriage in a manner that is just and equitable. Therefore, the court must exercise its discretion judiciously when called upon to share the properties during a divorce proceeding.
1. Section 72 (1) of the Matrimonial Causes Act 1970.
2. (1986) NWLR 175.
3. Section 72 (30 of the Matrimonial Causes Act 1970.
4. (2005) 2 SMC 135.
5. 144 N.W.2d 146 (1966).
6. Section 72 (3) Matrimonial Causes Act.
7. Section 72 and 73 of the Matrimonial Causes Act.