A Will is legal document in which an individual known as the testator describes how he/she would want his/her asset to be distributed upon their death. The individuals designated to receive any of the property of the testator is called a beneficiary.
In order for a Will to be legally valid, there are several requirements that must be met, such requirements include that the Will must be in writing, the individual making the Will must be of a legal age, the individual must have testamentary capacity, the Will must be signed by a testator and signed by the witnesses (it is essential to understand that beneficiaries, spouse or former partner).
The importance of a making a Will cannot be overemphasized. The making of a Will for instance excludes the rules of inheritance under Native Law and custom. This was seen in the case of Lawal Osula v Lawal Osula. Furthermore, it excludes the rules of inheritance under the provision of Section 39(1) of Marriage Act whereby any person who dies intestate (not having a valid Will), his estate or properties would be administered according to statute law.
The creation of a Will enables the testator to choose people he wants as his personal representatives, it gives him the opportunity of properly disposing his assets. If an individual dies without making a Will, the law will step in and impose rigid rules, known as Intestacy Rules which would will dictate what happens to the property and money left behind by the deceased.
Other importance of making a Will include: Providing financial security for loved ones; Appointing guardians for your children; Avoiding inheritance disputes; Creating a life interest; Specifying wishes for your funeral and Avoiding the unintended consequences of Intestacy.
It is not enough to prepare and execute a Will, important steps must be taken to safeguard the Will. It is therefore expedient that if you have a Will, it is stored in a safe place, where others can access it. If a Will is destroyed, lost or stolen, it may cause serious problems to the administration of one's estate. Similarly, there is not much use in creating a Will if your beneficiaries cannot access it or they are oblivious as to it's existence.
In safeguarding a Will, there are several ways in which a Will is said to be protected, such as keeping it in a safe store at home, keeping it in a bank, or with your lawyer. However, the legal way to safeguard a Will is known as Probate Registry.
The Probate Registry is charged with the duty of issuing a grant of probate to a deceased person's Will. In Nigeria, the Probate Registry of most States is where all the activities relating to obtaining legal instruments to facilitate the legal administration and management of estates take place. It is an effective channel of dispensing justice in matters of testacy and intestacy.
The Probate Registry is usually located within the High Court premises of most states and the following are its usual functions in the administration of justice. One of the functions of the Probate Registry is the custody of Wills. After a Will has been prepared by a Testator by himself/herself or by his/her Solicitor, it must be lodged at the probate registry of the High Court of the State upon the payment of the prescribed lodgement fee. This can be seen in the The High Court of Lagos State ( Civil Procedure) Rules.
Upon the death of a Testator who lodged a Will at the Probate Registry during his/her lifetime, the probate registry is usually the first port of call after the burial of the Testator. The Probate Registry is charged with the duty of issuing a grant of probate to a deceased person's Will. This grant of probate is the legal instrument which provides the legal basis for the enforcement of the contents of the Will.
The Probate Registry is the most effective and legal way in the protection of the Will of an individual.