Four commercial banks have been ordered to freeze seven accounts in furtherance of an ongoing police investigation into alleged suspicious transactions.
Magistrate Abdulsalam Abubakar of the Chief Magistrate Court (Upper), Nasarawa State in New Karu, issued the order on January 19 in four separate ex-parte motions filed in the name of the Inspector General of Police (IGP).
In one of the banks, the order is directed at an account – said to be owned by Odupaye A. Abimbola and another said to be owned by Toluwani Gideon Olisa.
In the third bank, the affected accounts and the owners are Toluwani Gideon Olisa.
The fourth affected bank and owner is Odupaye Abimbola Joseph; and in another – Toluwani Olisa and Olisa Toluwani Gideon.
The court also ordered the banks to furnish the Commissioner of Police (INTERPOL), Force CID Annex, Lagos, with the certified true copies (CTC) of the following information concerning the accounts: account opening package and mandate files; the BVN linked to the accounts and the statements of account reflecting transfer with account numbers of both inflows and outflows from inception to date.
The banks are also ordered to provide certificates of identification (pursuant to Section 84(4) of the Evidence Act, 2011).
They are also to place Post No Debit (PND) including ATM, but allow inflow of cash into the accounts. The court ordered the banks to “effect arrest of the account holders if seen and contact INTERPOL on 08085824015 and any other information that could assist the ongoing investigation.”
The Lagos State Special Task Force on Land Grabbers in the Office of the Attorney-General has acknowledged receipt of a petition on land grabbing by a businesswoman, Mrs. Adebayo Adewole Aderonke.
Through her lawyer, Ademola Adefolaju, the petitioner seeks to recover her two acres of land from the alleged land grabbers.
The property is at Idi Oparun, Harmony Estate, Oke-Ira Nla in Ajah.
The petitioner said she purchased the land from Alhaji Moroof Owonla in 2012.
According to her, between 2014 and 2016, while in India on medical treatment, she was informed that the land had been sold to a third party, who pulled down her fence and gate.
The petitioner said after returning from her treatment, the agent through whom she paid for the land claimed ignorance of the activities of the third party.
Mrs Aderonke said she was offered money to give up the property, but she refused the offers, following which her workers were attacked and beaten up.
According to her, on January 3, she was informed that the suspected land grabber “had commenced clearing of the land and is attempting to erect a fence thereon”.
She said the property was not only surrounded by thugs and a police van, the fence was still being erected.
The petitioner urged the Lagos government to intervene “by investigating, arresting and interrogating the suspects and prosecuting them if found guilty of running afoul of the law”.
She also prayed to be granted access to and possession of her property “to forestall the likely breakdown of peace, law and order as our client is not amenable to taking the law into her hands at this critical stage.”
The state government urged the petitioner’s lawyer to depose to a verifying affidavit in support of the petition in line with the state Properties Protection Law 2016.
The A-G’s response, signed by the special task force Co-ordinator, Rukayat Shomade, reads: “I am directed to acknowledge the receipt of your petition dated 19th January 2024 in respect of the above subject and respond as follows:
“You are required to depose to a verifying affidavit in support of the petition, pursuant to the provisions of the Lagos State Properties Protection Law, 2016.
“You are required to furnish this Office with the residential address of the alleged encroacher(s).
“Upon the fulfilment of the above conditions, you may wish to contact the undersigned for further clarification
“Be assured of our best regards in ensuring Lagos State is free from the menace of land grabbing. Grateful, acknowledge receipt, please.”
Judges have been urged to be liberal in dealing with electronic evidence as the digital age further evolves.
Experts called for a shift from the old and conservative ways when the tendering of electronic-generated evidence in courts was a herculean task.
They noted that Section 84 of the Evidence Act has made the admissibility of electronically generated evidence much more possible.
The section sets out the requirements for the admissibility of certain types of computer-produced evidence.
As part of the conditions of admissibility, the Act lays down minimum authentication requirements.
These and more were discussed at a workshop for legal officers by the Edo State Ministry of Justice in collaboration with the Forum Against Counterfeiting.
Its theme was: “Relevance and admissibility of electronically generated evidence and other emerging trends in the admissibility of documents.”
Edo State Attorney-General and Commissioner for Justice, Oluwole Osaze Uzzi, said the admission of electronically-generated evidence remained an issue.
He said the objective of the workshop was to equip the lawyers with skills in tendering various electronic documents, legal research, judicial approach to the admissibility of electronic evidence, and emerging principles.
Resources persons included Justice Alaba Omolaye Ajileye (rtd) and a judge of the Edo State High Court, Peter Akhime Akhihiero.
Justice Ajileye gave a historical background of electronic evidence, which he said began in Nigeria in 1969 when the Supreme Court posited that “the law must not be ignorant of modern times”.
According to him, lawyers are likely to approach two types of courts: the conservative and the liberal/progressive-minded.
Senior Partner, PUNUKA Attorneys and Solicitors, Dr. Anthony Idigbe (SAN), delivered a virtual paper on the fundamentals of legal research.
He stressed the importance of effective research in prosecuting a case using the “TARP” methodology.
The “T” stands for the thing or subject matter, “A” for the cause of action, “R” for the relief sought, and “P” for persons involved.
The workshop featured panel discussions chaired by the Chief Judge of Edo, Justice Daniel Okungbowa, with Ogaga Ovrawa (SAN), former Edo State Attorney-General and Commissioner for Justice, Dr. Osagie Obayuwana, among the panellists.
Justice Okungbowa said the workshop aligned with the government’s move to upscale its judicial officer with modern tools in justice administration.
Benin Branch Chairman of the Nigerian Bar Association (NBA), Nosa Edo-Osagie, said the world has moved to a digital age, so the judiciary must adapt to the times.
He said: “The law has risen to the fact that we are in a digital age and so, electronically generated pieces of evidence are admissible to the extent that they are provable.
“Globally, the idea of tendering evidence through electronic means has come to stay.”
The ECOWAS Judicial Council (EJC) held its statutory meeting in Abuja for three days last week. Discussions centred on how to strengthen the ECOWAS Community Court to effectively deliver on its mandate, and how to make the court’s judgment more enforceable in member countries to boost compliance rate. Assistant Editor ERIC IKHILAE reports.
How to make ECOWAS Court judgments more enforceable was a major talking point last week in Abuja during a meeting of the regional body’s judicial council.
While the meeting was ongoing, a court in Abuja made history by being the first to accept and enforce a judgment of the Community Court in Nigeria.
For three days, eminent jurists and judicial stakeholders from West Africa gathered to retool the sub-region’s legal machinery.
The gathering, under the auspices of the Economic Community of West African States (ECOWAS) Judicial Council (EJC), identified the challenges and solutions.
Participants suggested ways the system could be strengthened in the face of instability, threats to democracy and disregard for the rule of law.
The EJC, headed by the Chief Justice of Nigeria (CJN), Olukayode Ariwoola, was established in 2006 by the Authority of the Heads of State and Government of ECOWAS to serve as a regulatory body for the Community Court of ECOWAS.
Besides providing a platform for the resolution of disputes between member states and citizens of the sub-region, the court also provides other legal services to West African states.
As noted by Justice Ariwoola, the court is saddled with the task of interpreting the ECOWAS Treaty and other legal instruments adopted by the community, as well as providing legal opinions and advice to member states and individuals on matters relating to the interpretation and application of these legal instruments.
Justice Ariwoola added that, by its activities, the Community Court of ECOWAS ensures uniformity and consistency in the application of regional laws, fostering juridical certainty, political stability, economic growth, regional integration and cooperation.
Why ECOWAS Judicial Council?
Although it was meeting for the first time in Nigeria since its creation, the EJC, according to the CJN, “serves as the guardian of the rule of law and the protector of human rights within the region.”
He added that the EJC, comprising eminent jurists, “plays a crucial role in the resolution of disputes among member states, ensuring that conflicts are resolved peacefully and in accordance with the rule of law.
“It acts as a mediator and facilitator in resolving disputes, promoting dialogue and reconciliation among member states.”
The EJC is also working to ensure the harmonisation of the many laws and legal practices in member states to promote regional integration and cooperation in a region characterised by diverse legal systems and traditions.
This, Justice Ariwoola noted, is being done by facilitating dialogue among member states, harmonising legal frameworks and promoting the exchange of legal expertise and best practices.
The challenges
Participants noted that the effectiveness of the Community Court and the EJC are being hampered by some identified challenges that require urgent attention.
Justice Ariwoola identified some of the key challenges to include “inadequate funding, capacity constraints and the need to bolster cooperation among member states.”
As regards the issue of capacity constraint, identified by the CJN, the meeting noted the impact of the sanctions imposed by ECOWAS on some member states on the appointment of judges from those countries.
Due to a recent reform in the court, countries like Burkina Faso, Cabo Verde, Guinea, Mali and Sierra Leone were allocated statutory positions.
Whereas judges have been successfully recruited to fill the positions allocated to Cabo Verde and Sierra Leone, the recruitment of judges from Burkina Faso, Guinea, and Mali has been impossible on account of the sanctions imposed on the three member states.
Judgment enforcement challenges
President of the Economic Community of West African States (ECOWAS), Omar Touray, talked about the poor enforcement of the judgements of the ECOWAS Community Court.
Touray said the non-enforcement of the court’s decisions has remained a major issue in the effective delivery of the mandate and responsibility of the sub-regional judicial institution.
He added: “The supplementary protocol relating to the Community Court provides a role for the national judicial institutions in the enforcement of these judgments.
“I believe that it is time for deliberate action to be taken to address this challenge.
“In this era, where instability and insecurity are overwhelming our community, the role of the justice sector is crucial in conflict prevention, through the promotion and defence of the rule of law and human rights.
“It is, therefore, crucial to institutionalise a more regular meeting of the Judicial Council to ensure that the activities of the court benefit from the regular review and guidance of the council.”
Suggested solutions
To address some of the challenges identified, the Attorney-General of the Federation (AGF) and Minister of Justice, Lateef Fagbemi (SAN), suggested measures to be adopted.
Fagbemi noted that given the trying times being experienced in the sub-region, managers of its justice system should work on ways to ensure that the system meets the needs of today.
He suggested consistent reforms to enhance the capacity of the justice sub-regional justice system to effectively deliver on its mandate.
Fagbemi said: “As we are all well aware, we are in an era where the foundational principles of the Economic Community of West African States are being tested and this reinforces the need for the Community’s Justice System to respond appropriately to contemporary issues in order to engender justice, fairness and inspire confidence in Community citizens.
“It is, therefore, critical that the Community Court of Justice continues to undergo necessary reforms to bring it in tandem with the current exigencies and manage the challenges associated with justice delivery in the region.
“The court must adopt strategies that strengthen its jurisdiction, whilst appreciating the jurisdictional boundaries of the court and limiting unnecessary conflict with domestic laws of member states.
“It is important for the court to pay attention to the peculiarities of member States and refrain from issuing orders and judgments that are practically incapable of enforcement.
“There is also a dire need to promote and deepen alternative dispute resolution measures within the region.”
Resolutions
Among the resolutions reached by participants at the closed-door session of the meeting held between February 20 and 22, was the need to constitute two committees to urgently evolve ways to address some critical challenges identified.
The first committee is to address the inadequacies identified in the EJC’s Rules of Procedure to ensure its effective functioning and conformity with its mandate.
This committee is made up of members from Benin, The Gambia, Ghana, Guinea-Bissau and Sierra Leone.
To prevent the possible shortage of judges, the EJC resolved to recommend to the ECOWAS Authority to promptly begin the process of filling impending vacancies to avoid a potential infraction of statutory provisions governing the appointment of judges to the court.
This recommendation becomes important because judges from three member states – Cote d’Ivoire, Ghana and Nigeria, whose tenure expired in July 2022, were only mandated by the EJC to continue serving as judges until their successors are appointed.
The second committee is mandated to work on ways to improve the enforcement of judgments of the court.
This committee, according to a report of the meeting, is “saddled with the responsibility of reviewing the enabling laws for the enforcement of the court judgments and further assess the possibility of creating Appeals Chamber of the court.
“Among the terms of reference of the committee is also the consideration of the current admissibility criteria for potential review.
“The committee is further required to explore the possibility of creating a pool of qualified judges to serve as appellate judges on an ad-hoc basis.”
This committee is made up of members from Cabo Verde, Liberia, Senegal, Sierra Leone and Togo.
Both committees are to submit their reports to the EJC for onward presentation to the Authority of Heads of State and Government for necessary action.
Tinubu promises support
The EJC got the backing of President Bola Tinubu.
At a meeting with members on February 22, President Tinubu assured the EJC of the support of the ECOWAS Authority of Heads of State in all the initiatives aimed at ensuring effective justice delivery in the sub-region given the critical responsibility of the Judiciary in sustaining democracy, rule of law and mutual coexistence.
Tinubu said: “We are committed to transformative democracy because we believe the Judiciary can protect democracy.
“We are ready to support you as learned minds, who have the requisite experience and institutional memory to comprehensively reform our institutions.
“I assure you, as the Chairman of ECOWAS Authority of Heads of State and Government, that the Judiciary is one of the pillars to protect our democracy, and, it is only in this regard that we can make a difference on the continent.
“We will work with you to ensure that your expertise is employed to promote justice in our democratic experiences on the continent and in the region.
“You are truly the last hope of the common man across our sub-region.”
A glimpse of hope
While members of the EJC were strategising, a court in Abuja made history by being the first to accept and enforce the judgment of the Community Court in Nigeria.
It was on a fundamental rights enforcement suit filed by a German, Martin Gegenheimer who the ECOWAS Court found to have been unlawfully arrested and detained while exiting Nigeria.
Gegenheimer had visited Nigeria on a business trip, but while returning to Kenya on February 23, 2020, he was stopped by men of the Nigerian Immigration Service (NIS) at the boarding gate of the Kenya Airways aircraft after all necessary departure formalities were completed.
He said the NIS officials arrested him, seized his passport and detained him in a jam-packed cell between February 23, 2020 and March 4, 2020 despite the Covid protocol and without acceptable food as well as medical care.
The German, who is married to a Nigerian, subsequently filed a suit before the ECOWAS Court, marked: ECW/CCJ/APP/23/2020, to challenge his arrest and detention.
In a March 4, 2021 judgment, a three-member panel of the ECOWAS Court, presided over by the court’s president, Justice Edward Amoako Asante, declared Gegenheimer’s arrest and detention illegal.
The court ordered the Nigerian government to pay him N53,650,925 as special damages for various losses suffered and costs incurred while under unlawful arrest and detention by the NIS.
The costs, the court said, relate mainly to hotel expenses incurred by the German while under forced detention by agents of the Nigerian government.
The court further ordered the Nigerian government to pay him another N10million in general damages as reparation for all violations and moral prejudice suffered for the violation of his rights, and an additional $10,000, being the expenditure incurred by the applicant to secure his bail.
The ECOWAS Court ordered the Nigerian government to remove the German from its watchlist and to immediately and unconditionally release his German passport, which was “arbitrarily and unlawfully,” seized by agents of the Nigerian government.
Following failed efforts to have the Nigerian government, through the office of the Attorney General of the Federation to enforce the judgment, his lawyer, Daniel Makolo approached the Federal High Court in Abuja to have the judgment registered as a decision of the court.
He relied on Article 15 of the Reviewed Treaty of ECOWAS, and Article 24 of the 2005 Supplementary Protocol (which amended the 1991 Protocol).
Upon having the judgment registered by a Nigerian court, he then proceeded to initiate a garnishee proceeding, marked: FHC/ABJ/NJR/M/3/2022, for the purpose of having the judgment executed.
In a ruling on February 22, Justice Inyang Ekwo of the Federal High Court, Abuja made absolute an earlier garnishee order nisi and proceeded to order the Central Bank of Nigeria (CBN) to pay a Gegenheimer the N63.7million and $10000 being the judgment sum.
Justice Ekwo ordered the CJN to deduct the amount from Federal Government’s funds in its custody to settle the debt which arose from the March 4, 2021 judgment given against Nigeria by the ECOWAS Community Court.
Justice Ekwo rejected CBN’s claim that the government’s foreign exchange account was in deficit thereby making it impossible to pay the entire judgment sum.
The judge agreed with Makolo that, as against the contention by the CBN, ECOWAS Court’s judgments do not qualify as foreign judgments in the strict sense of it and could be enforced by Nigerian courts.
He added: “Upon a keen perusal of the provisions of the Foreign Judgments Reciprocal Enforcement (FJRE) Act 2004 it cannot be said that the judgment sought to be enforced in this case, is stricto sensu (in the strict sense) a foreign judgement.
“I agree with the learned counsel for the judgment creditor (Makolo) that, by Article 15 of the Reviewed Treaty of ECOWAS, and Article 24 of the 2005 Supplementary Protocol (which amended the 1991 Protocol), the judgment of ECOWAS Court can be registered and enforced in Nigeria by this court without referring to it as a foreign judgment, in the same manner that the judgement of any other court in Nigeria can be registered and enforced in this court,” the judge said.
Justice Ekwo proceeded to make absolute, the garnishee order nisi he earlier issued against the CBN, listed as the garnishee.
Group Managing Director of Suru Worldwide Ventures Limited, Dr Edward Akinlade has described the Supreme Court ruling nullifying the takeover of landed properties of Suru Worldwide Ventures Nigeria Limited by the Assets Management Corporation of Nigeria (AMCON) as reassuring.
He said it has restored the confidence of investors, recalling how 100 direct and 500 indirect staff lost their jobs at Lagos Best Western due to AMCON invasion on September 21, 2017.
According to him, the hotels had international guests from British Council, Canadian Embassy, Mobil, Shell and others on the day of the incident.
The Prince from Ashogbon family in Lagos State said the Supreme Court’s ruling has confirmed the judiciary is ready to do justice rather than being a puppet of the government of the day.
According to him: “As at that time, we had 100 direct and 500 direct and indirect staff respectively. They all lost their jobs on the 21st of September, 2017.
“We had international Guests in the hotels that night- British Council, Canadian Embassy, Mobil, Shell were all our guests. They were teargassed out of the hotels that night.
“The Supreme Court’s ruling brings confidence back that the judiciary are ready to do justice rather than being a puppet of the government of the day.
“It shows the Judiciary is there to implement the rule of law and to ensure the efficient division of the rule and separation of powers. Clearly, they gave an order against the executive and they have to comply.
“This our judgement is a test case and it will be referred to in years to come as a precedence.”
Nigeria and the United Kingdom last week signed the Enhanced Trade and Investment Partnership (ETIP) to boost trade and investment. However, the Nigerian Bar Association (NBA) rejected the pact. The Minister of Trade has clarified that Nigeria does not have a Mutual Recognition Agreement (MRA) with the UK to allow its licensed lawyers to practise in Nigeria. Is the NBA justified in its rejection of the pact? Should foreign lawyers continue to be shut out? ADEBISI ONANUGA felt lawyers’ pulses.
A ROW broke out last week over the Enhanced Trade Investment Partnership (ETIP) Agreement between Nigeria and the United Kingdom.
Minister of Industry, Trade and Investment, Dr. Doris Nkiruka Uzoka-Anite, said the agreement “reaffirms Nigeria’s dedication to nurturing economic and trade alliances, especially in critical sectors like energy, legal, and financial services.”
She described it as “a robust partnership understanding which promises to be a springboard for immense growth in trade relations with the UK.”
UK Minister for Business and Trade, Kemi Badenoch, said: “The two countries will continue to be bound by unshakeable cultural bonds and share a common law system which is the language of our contracts and transactions.”
The Nigerian Bar Association (NBA) rejected the ETIP agreement, fearing it would take jobs away from Nigerian lawyers.
It vowed to challenge the agreement up to the Supreme Court if necessary.
NBA president Yakubu Maikyau (SAN) said: “We know for certain that the British Government will not undermine its own body of legal professionals in such spectacular fashion as this administration has done to the NBA in the matter of this agreement.
“It is truly tragic that while the government of the UK is seeking opportunities for its own lawyers beyond its constrained environment, the government of Nigeria is attempting to deprive Nigerian lawyers and their millions of dependants of means of livelihood.
“To embark on such a venture without recourse to the NBA is the height of insensitivity to the plight of the legal profession in Nigeria, and this is totally unacceptable,” the NBA said.
The association said it would mobilise its members to challenge the agreement, urging them to “brace up for the struggle ahead.”
“The NBA under my leadership will not allow any incursion into our legal space.
“We intend to fully challenge the legality of this agreement to the Supreme Court if necessary…”
But, Dr. Uzoka-Anite clarified that the agreement does not guarantee easy entry for UK lawyers.
She said on X (formerly Twitter): “Regrettably, our earlier report erroneously suggested that Nigeria has signed an MoU that allows lawyers licensed in the United Kingdom to practise in Nigeria.
“We wish to state emphatically that there is no such provision or agreement in the MoU.
“For the avoidance of doubt, Nigeria does not have a Mutual Recognition Agreement (MRA) with the United Kingdom and did not commit, under the MOU or elsewhere, to allow UK-licensed lawyers to practise in Nigeria.
“As it currently stands, foreign licensed lawyers (including those licensed in the U.K.) cannot practise in Nigeria, as categorically stated in the MOU.
“We recognise that cross-jurisdictional practice between Nigeria and the United Kingdom is still an ongoing conversation amongst relevant stakeholders within the legal practitioners’ community in Nigeria, and this was reflected in the MOU.”
A highly placed source in the NBA said despite the minister’s clarification, the association would still challenge the agreement.
Is NBA’s rage justified?
In an era where legal practice is going global with the African Continental Free Trade Area (AfCFTA) and the like, should foreign lawyers continue to be shut out?
Pioneer Nigerian Bar Association (NBA) Section on Business Law (SBL) chairman George Etomi once hailed the AfCFTA because it will enable Nigeria to “get our own fair share of the world trade, not only goods but services”.
He added that when trade barriers are opened, more opportunities would open for lawyers.
“There will be myriads of agreements to be drawn and dispute resolutions to be handled,” he said.
Also, lawyer and partner at KPMG, Wole Obayomi, believed that AfCFTA would benefit law firms when they adopt continental partnership models.
He also thought the agreement would allow Nigerian lawyers to develop the capacity to handle complex high-end deals.
Obayomi, speaking soon after the signing of the AFCFTA in 2019, said: “International corporate organisations want firms that can deal with them cross-border.
“If you’re part of an international network, opportunities will be vast.”
So, does it then make sense to rule out foreign lawyers in Nigeria completely? Is it even practicable?
A former Commonwealth Lawyers Association (CLA) President, Mrs Boma Alabi (SAN), does not think so.
Alibi, who is licensed to practise in the UK, stressed it would be futile to attempt to block foreign lawyers.
Speaking on Channels Law Weekly on the controversy generated by the ETIP agreement, she rather called for regulation.
Alabi said: “There are 54 countries that practise similar laws as we do, and because of the similarities, they have minimum entry barriers to lawyers from other commonwealth countries.
“The Legal Practitioners Act (LPA) provides that lawyers who have similar law to Nigeria can be admitted.
“It recognises the fact that there are other countries that practise similar laws to us.
“It’s more practical to begin to look at regulating foreign lawyers coming to practise here as opposed to trying to keep them out.
“We have not kept them out; we have not succeeded, and it’s only going to get worse.
“So, it’s better to recognise that reality and regulate how they practise law here.”
Mrs Alabi highlighted the benefits of opening the legal space to foreign lawyers.
She said: “There is a very bright side to it. We’ve seen in jurisdictions where they’ve opened up that they’ve created employment for local lawyers.
“They’re not going to fly solicitors and barristers to Nigeria to work for them. Fees here will not sustain that.
“They will partner with local lawyers to develop some of these skills that the NBA president said we do not have.”
The SAN also argued that Nigerian lawyers can enjoy similar opportunities abroad.
She said: “What the UK is looking for is reciprocity because already, they’ve opened up their market to us.
“I have been practising law in England for many, many years.
“I practise there because I’m a Nigerian-qualified lawyer. I did not have to go through the whole rigour of attending their Law school again.
“All I had to do was take some examinations – about four of them, and that was it.
“My Nigerian qualification was recognised, and I was able to practise in the UK, practising UK law.
“If you don’t want to practise UK law, you don’t need any qualifying examinations. You literally set up shop and start practising as a Nigerian lawyer.”
Mrs Alabi thinks the resistance is because some do not fully understand the ramifications.
On the shape the regulation could take, she said: “For instance, you can say they can come here and practise their law, but they cannot practise Nigerian law because they don’t know enough about it.
“It means someone can set up to practise Chinese or Korean law, and why not?
“For common law issues, they can take some examinations, maybe at the Nigerian Law School. That may require a change in the LPA to remove the citizenship requirement.
“We can look at what happens in other jurisdictions, see what works for us, and import that
“India opened their legal space partially about a year ago. Foreign lawyers can set up to practise their law or partner with Indian law firms to practise Indian law.
“I’m the one qualified in Nigerian law, for instance. My Nigerian colleagues will work with me, and you (the foreign lawyer) will simply be the rent holder.
“I don’t see what’s wrong with that. That’s giving us additional opportunities.”
Alabi noted that foreign companies are not legally allowed to bring in their private lawyers from the UK to represent them here.
Who can practise in Nigeria?
In an article, a law teacher, Sylvester Udemezue said under the Legal Practitioners Act, only three categories of persons are entitled to practise law in Nigeria.
The first class is lawyers who are ‘entitled to practise generally’.
According to him, this class covers any lawyer who has been called to the Nigerian Bar and whose name is on the Roll of Legal Practitioners kept at the registry of the Supreme Court of Nigeria.
The second class comprises those entitled to practise by their office, such as Attorneys-General and others referred to as Official Bar.
He said the third class is usually referred to as “lawyers entitled to practise law by warrant”.
Udemezue noted a provision of the LPA that empowers the Chief Justice of Nigeria to grant leave to a foreign lawyer to come and represent his client in an individual case in and leave afterwards.
“Such lawyers are not entitled to practise generally by setting up a firm in Nigeria as if they were lawyers duly called to the Nigerian Bar.
“Not even under the powers awarded the CJN under Section 2 of the LPA may any lawyer whose name is not on the Roll of Legal Practitioners in Nigeria, get authorised to practise law generally in Nigeria,” he said.
Senior lawyers weigh in
Chief Wale Taiwo (SAN), Chief Mike Ozekhome (SAN), Dr Joe Nwobike (SAN), and a former member of the Ogun State Judiciary Commission, Abayomi Omoyinmi, also shared their thoughts on the controversy.
Taiwo noted that lawyers now operate in a global community where Nigeria is a major stakeholder.
“My understanding of the ETIP is that the UK is seeking a market for its businesses in the aftermath of the dwindling access to the EU market.
“It is a known fact that Brexit has not delivered the promises the proponents sold to the UK populace.
“The UK economy is even struggling and just entered into a recession.
“Thus, the UK is doing everything to gain access and a foothold in markets afield.
“Nigeria is one of the targets. Our colonial history, English common law traditions, the English language, our assimilated culture, etc., all make Nigeria a prime market for the UK to explore. ETIP is premised on the foregoing.
“In terms of the legal services industry, the legal profession in Nigeria is not on the same pedestal as the UK. It’s a disservice to attempt to compare the two.
“From the available data, the legal services sector makes a significant contribution to the UK economy, contributing £34b – or 1.6 per cent – of gross value added in 2022, and employing 368,000 people right across the UK.
“I don’t have the figure of the legal services contribution to the Nigerian GDP but I bet it’s a far cry when compared to the UK figures.”
Taiwo believes granting UK lawyers would be detrimental to their Nigerian counterparts.
“Before ETIP, I’m aware that some UK firms had already been providing legal services in Nigeria through proxies. It is playing the ostrich to deny the fact.
“The due diligence and legal documentation of majority of the big ticket transactions in our oil and gas, energy, power, project finance, extractive industry sectors involving the multinationals are delivered through the London magic circle firms.”
While backing the NBA, Taiwo said the ETIP’s benefits should be explored, nonetheless.
He said: “We should still find a way to explore the touted benefits of ETIP.
“As I alluded earlier, London firms are already carrying on legal practice via proxies.
“Arbitration Clauses are inserted in all multimillion-dollar contracts; the contracts are made subject to the laws of England and Wales with London as the seat of arbitration. It is a matter of freedom of contract.
“Thus, we need to be realistic about the legal components of the ETIP.
“I think the issue that should be addressed is how Nigerian legal professionals can be relevant for collaboration with our peers in the connected global economy.
“That should be the starting point to addressing the fall out of the ETIP pact.”
British lawyers must
attend law school
Ozekhome said just as Nigerian lawyers cannot automatically practise in the UK, the same conditions should apply to them.
“For as long as Nigerian lawyers, no matter the heights in the profession, are not allowed to practise law in the UK without being called to the English Bar, so also will it be wrong, untenable, immoral and even illegal for any British lawyer or any other foreign lawyer to practise in Nigeria without going through the Nigerian Law School and passing all qualifying examinations,” he said.
‘Fears not justified’
Dr Nwobike said the clarification by the Trade Minister puts the doubts and fears expressed about the ETIP pact to rest.
He added: “That clarification notwithstanding, the practice of law is not a trade and not governed by the rules and regulations applicable to trading and investment activities of any kind.
“The practice of law is specifically governed, as it relates to who can practise the law profession in Nigeria, by the Legal Practitioners Act and the Regulations made under it.
“I, therefore, think that the fears on the possible practice of law by UK licensed lawyers in Nigeria based on the pact cannot be accurately justified given the current state of the law in Nigeria.
“It is, however, very instructive to see the NBA President openly oppose the inference drawn from the statement credited to the Minister.
“The NBA President acted within the confines and expectations of his office to oppose the Pact in this regard.”
On whether the restrictions should remain, Nwobike said: “I am unaware of any jurisdiction that has opened its legal practice for all to engage in. The US has not done so.
“The right acquired to practise law in a state in the US does not automatically entitle one to practise law in another state of the US.
“This suggestion that the practice of law is going global is, to my mind, a proposition and not a factual reality.”
How it is done in the UK
Omoyinmi said in the UK, any lawyer from another jurisdiction who wishes to practise as a solicitor or barrister must take a qualifying test.
“So, it is not automatic for UK lawyers to come and practise in Nigeria without any regulations,” Omoyinmi said.
According to lawsociety.org.uk, from September 2021, lawyers from abroad and overseas students who wish to qualify in England and Wales can sit the Solicitors Qualifying Examination (SQE).
The SQE allows lawyers to qualify as solicitors by taking the same exam as domestic candidates.
To requalify as solicitors in England and Wales, foreign lawyers need to: hold a legal professional qualification; hold a degree in any subject or an equivalent qualification (such as an apprenticeship) or work experience; complete two stages of assessment, SQE1 and SQE2, unless exempt; satisfy the Solicitors Regulation Authority (SRA’s) character and suitability requirements.
Fully qualified foreign lawyers are exempt from any qualifying work experience (QWE) requirements.
If a foreign lawyer is looking to requalify in England and Wales, the SQE replaces the qualified lawyers’ transfer scheme (QLTS.
Forty-Eight days after he was arrested for criticising businessman Sir Emeka Offor, an activist, Boniface Okonkwo, is still in detention.
A ruling on his bail application was expected last Wednesday by Justice Vincent Agbata of the High Court sitting in Nnewi, Anambra State, but the prosecution called its first witness instead.
Okonkwo was charged with criminal defamation, a misdemeanour that is bailable.
He has been in detention since January 3 when he was arrested following a complaint by businessman Sir Emeka Offor.
At the last hearing, the President General of Oraifite, Sir Vin Dike, testified for the prosecution.
He said Okonkwo criticised Offor on the New Oraifite WhatsApp platform.
According to him, Okonkwo described Offor’s meter manufacturing factory as a “decorated warehouse and not a factory”.
Dike said he was shocked to read the post.
He said while a majority of members of the WhatsApp group hailed Offor, only Okonkwo criticised him.
After his testimony, Justice Agbata adjourned till tomorrow.
It is hoped that he will deliver the ruling on Okonkwo’s pending bail application.
Okonkwo, who was approached by reporters after the sitting last week, said he expected a ruling on his bail application and was surprised the trial commenced instead.
He said: “As I understand it, the matter was adjourned for continuation of trial after proceedings, not even for ruling on my bail application.
“This is strange to me. Am I no longer entitled to bail?
“This is not the first time I would have issues with the complainant over the same defamation of character.
“I won the previous case he initiated against me at the end of the day.
“I’ve passed through this route before and I didn’t jump bail.
“Aside from being a human rights activist, I’ve positively affected many lives in my community through my NGO, as well as a youth organisation through which many were empowered.
“As a result of these, I was honoured by my community last December. I never lobbied for it.
“I’m calling on President Bola Ahmed Tinubu, his wife Oluremi Tinubu, Vice President Kashim Shettima, human rights groups, the press and indeed the entire Nigeria to come to my rescue.
“This is pure intimidation and trampling on my rights.
“So many people criticise the President daily. How many of them has he sent to jail.?”
The Executive Secretary of HEDA, Sulaiman Arigbabu made this disclosure during an interactive session with the media. The event which was to mark the 20th anniversary of HEDA held Sunday evening at Colossus Hotel, Opebi Link Bridge, behind Sheraton Hotel, Ikeja .
He hinted that the group might be taking the military authority to court over the matter soon.
Arigbabu spoke during his presentation on “Assessing HEDA’s 23-year impact: Contributions to Environmental Sustainability, Climate Justice, Agriculture and Food security”
He said: “We have issues with Nigerian Army on land grabbing. Our farmers in a very quiet community in Epe, in places that their ancestors have lived and farmed many years past, are now being pushed out of these places by the Nigerian Army.
“They are now being told by a corporal to come and collect pass before they can go to their fish farms and other farms in the area. These are issues we intend to fight”, he said
HEDA chairman, Olanrewaju Suraju also disclosed plans to start certificate training programme on good governance for students of the higher institutions.
Suraju said the group is already in discussion with the University of Lagos (UNILAG), Akoka authorities on the progrmme.
He said the idea is to start inculcating the idea of good governance in the minds of the young students before they leave school.
The HEDA chairman recalled that the group supported the former chairman of the Economic and Financial Crimes Commission (EFCC), Abdulrasheed Bawa on Bankers Declaration of Asset Act which he said was till being violated by bankers till date.
“Every banker is expected to declare their asset on assumption of duty, lamenting that the National Assembly forced the former EFCC boss to back down on the issue.
“We have written to the office of the Secretary to the Federal Government to designate an agency to take care of that process. If we don’t get appropriate response, we would sue the Secretary to the Federal Government to get him to comply.” he said
A Group, the Crime Victims Foundation of Nigeria (CRIVIFON), has described the proposed Police Veterans Foundation as a veritable entity that would help to improve the lots of both retired and serving police officers when operational.
The Police Veterans Foundation has been slated for launch on March 5, 2024 by the Police.
The Executive Director of the foundation, Mrs. Gloria Egbuji, commended the Chairman of the Police Service Commission (PSC), Dr. Solomon Arase and the incumbent Inspector General of Police (IGP) Kayode Egbetokun, for agreeing to establish such an foundation that would primarily promote activities that boost welfare of both retired and serving police officers.
The CRIVIFON Executive Director said during the weekend that the Police Veterans Foundation is long overdue in coming, as many retired police officers’ welfare over the years have been deteriorating with little or no concern from the country’s leadership as no forum has been there to speak for them.
The Police Veterans Foundation was conceptualised for the need to create a veritable platform for galvanising support for the welfare of retired police officers most of whom are faced with debilitating health and financial challenges after retirement. To achieve its objectives, the foundation aims to raise awareness to mobilise support and establish a fund for the improved welfare of retired police officers.It also aims to improve training and standardise operating procedures.
The foundation which boasts of distinguished members such as the President of the Association of Retired Police Officers, DIG Mohammed Aminu Yesufu and CP Isah Greman plans to initiate improvement in the life of those in the Police Force.
The Crime Victims Foundation of Nigeria noted with dismay the squalid state some police officers live in, after decades of serving Nigeria creditably.
According to the press statement, “some retired police officers do not have something to fall back on, apart from their miserable pension in their post retirement years when age is certainly not on their side. Some do not have good houses to retire into and neither do they have enough savings to cater for their family needs ostensibly due to poor salaries while in service.”
The Crime Victims Foundation has, therefore, expressed optimism that with the coming of the Police Veterans Foundation, a lot of issues would be addressed towards taking care of retired officers and giving hope to those still in service.
A Will is a testamentary disposition usually made by a testator to give instructions to his executors on how he wishes to have his/her assets distributed upon his demise. There is a lot of skepticism about Will making but if it is made in compliance with the dictates of the Law it is usually beneficial for the administration of the estate of a deceased person.
A major benefit of making a Will is that once it has been established that it was validly made and admitted to probate, the executors of the Will can distribute the estate of the deceased in accordance with the provisions in the Will without interference from any quarters. However, on the flip side, not making a Will makes it easy for certain individuals to unlawfully interfere with the assets in an estate, particularly as regards how the estate should be distributed. These individuals include family members of the deceased, people who ought to be beneficiaries of the Will if one was made, and third parties who are being mischievious.
One of the major reasons why there are dispute over an estate is mainly because parties suspect, for any reason whatsoever the validity of a Will that may have been purportedly made in a bid to distribute an estate amongst the named beneficiaries and in some cases the executors of the said Will. Although making a Will does not always guarantee that a dispute will not arise, it serves as the first line of defence in such an eventuality. The question at this stage will then be whether the Will was validly made in compliance with the legal requirements.
In this piece, the Writer aim to evaluate the requirements and process of making a valid Will.
Meaning of a will
In Obianwu V Obianwu (2017)LPELR-42676(CA) described a Will as a “disposition or declaration by which the person making it (the testator) provides for the dist ribution or administration of his property after his death. It is effective on death and is therefore revocable by him up until death. The Testator must be 18 years or over and have mental capacity to make a will. The testator must also have the intention to make that particular Will. To be valid, a Will must in ordinary cases comply with the formal requirements of the Wills Act, 1837 as amended. The Will must be in writing, igned by the Testator(or someone else in his presence and by his direction), and be attested by two witnesses (the signature must be either made or acknowledged by the testator in the presence of the two witnesses present at the same time)”. An equally comprehensive definistion of a Will had previously been adopted by the Supreme Court in Asika V Atunya (2013) 14 NWLR (Pt 1375) 510 at 528 and in the earlier case of Kwentoh V Kwentoh (2010) 5 NWLR (Pt 1188) 543 @ 562 following a long line of cases.
The maker of a will is known as a testator. When a person who makes a will dies, he is said to have died testate, whereas a person who died without having made a will is said to have died intestate. In both instance, the estate of the deceased is administered by personal representatives. The personal representatives of a testator are called executors while the personal representatives of a person who dies intestate are known as administrators. A will takes effect when it is admitted to probate.
History of wills in Nigeria
In the pre colonial era, a disposition of property at death was governed by the customary law which can be oral or written. Law or Islamic law prevailing in each community. Because writing was largely unknown to pre colonial communities, disposition of property at death was done orally and where was no oral disposition, the property of a deceased person devolved according to customary rules of inheritance. Even customary law recognized the testamentary freedom of a testator to dispose of alienable property according to his wishes albeit orally. These oral dispositions were made usually expectations of imminent death and in the presence of witnsesses who were not supposed to be beneficiaries under the disposition. The number of witnesses required to make a valid oral will is not certain, but in Ayinke V Ibiduni(1959) 4 FSC 280, a witness testified that under the customary law of that community, four witnesses were required to make a valid will.
In Muslim communities, Islamic law governed the disposition of property. Under Islamic law, a testator does not have full testamentary freedom as the Holy Quaran stipulates the manner in which property is to be disposed of according to Islamic rules of inheritance stipulated in the Quran, the disposition of property in Islamic law can be oral or written as well.
However in the colonial era, one of the statutes of general applications (SOGA) received in Nigeria was the Wills Act of 1837. The Act provides for the disposition of property provided its formalities are complied with. Section 3 of the Act states as follows:
“it shall be lawful for every person to devise, bequeath or dispose of by his will executed in the manner hereinafter required all real and personal estate which he shall be entitled to. The Wills Act 1837, by virtue of Sections 315 & 316 of the constitution is still applicable in Nigeria. Also the Wills (Amendment) Act, 1852, Wills Law of various states, Administration of Estate Laws of various states all applicable to making of Will in Nigeria.
Sources of the Law of wills in Nigeria
The received law on Wills, that is the Wills Act, 1837 and the Wills (Amendment) Act 1852 which apply as statutes of general application is still in force though most of its provisions have been amended in England.
Who can make a will?
Two components are applicable here. Age and mental capacity. Section 7 of the wills Act 1837 stipulated 21 years. Wills of some states however stipulated 18 years. In the case of Banks V Goodfellow(1870) L.R.5 Q.B 549, Testator must:
i.) Understand the nature of the act of making a will and its legal effects.
ii.) Know the extent of his property which he wants to dispose.
iii.) Have a recollection of the objects of his bounty.
iv.) Know the manner of distribution.
In that case, the testator who had a history of mental disease and who suffered from delusion instructed a lawyer to prepare his will. The will was prepared and duly executed. In the will, he left all his estate to his niece and appointed two executors. Shortly after his death his niece died leaving no issue and the property devolved on the heir at law of the niece who was no relation to the testator. The testators heir at law brought an action to declare the will invalid. It was contended that the testator lack testamentary capacity because he had a long history of mental disease and suffered from delusion. The jury found the will was valid. On application to the High court Cockburn , CJ laid down the above test to be used in establishing whether a testator possessed mental capacity to make a will. Applying this test, his lordship held that the testator was neither afflicted by mental disease nor delusion when he made his will. He was held to have a sound disposing mind and memory.
Mode of execution
i.) By testator signing personally or
ii.) acknowledging the signature &
iii.) testator directing another to sign on his behalf and in his presence and in the presence of two witnesses present at the same time S.9 Wills Act 1837.
Attestation:
•Witnesses must be physically present.
•Need no knowledge of contents
•Must subscribe in the presence of each other (what is obtainable in practice is that Witnesses hardly be together but that’s wrong).
•Blind person cannot attest.
Beneficiary witness:
Beneficiary or spouse not to witness.
S.15 Wills Act. There are exceptions to this.
•Section 8 Will Law of Lagos state enables a witness who is also a beneficiary to retain the gift where there are other witnesses to prove due execution of the signature of the witness-beneficiary is disregarded.
•Where there are provision for debt settlement.
•Marriage of the spouse/witness and the beneficiar took place after the making of the will.
•Where another will or codicil confirms the gift (the latter not being attested by the beneficiary or spouse)
•Privileged will
Classification of gifts
Devise is used for disposition of realty(real estate) while Bequeath is used for description of a gift of personality(personal property) but they are used or construed interchangeably in order not to defeat the intention of the Testator. The word “Give” may be used for both classes of gifts.
Types of gifts(legacy)
•General Gifts
•Specific Gifts
•Demonstrative
•Pecuniary and
•Residuary
General legacy:
General legal is a gift not separated or distinguished from other properties owned by the Testator . Where the gift does nt exist at the time of the Testator’s death, Executors must acquire it or give the money s worth to the beneficiary. Example:
“I give a 6 bedroom duplex apartment in any upscale area of his choice in Abuja to my daughter, Tolu”.
Advantage of General Gift is that it is not liable to ademption, while the disadvantage is that it may suffer abatement where the estate is insufficient and it may even fail where the value of the gft cannot be ascertained.
Note:
Ademption refers to the destruction or extinction of a testamentary gift because the bequeathed assets no longer belong to the testator at the time of their death.
Abatement is the process of reducing the gifts given in a will because the assets of the estate are not sufficient to pay all of the debts of the estate and also distribute the gifts as the testator intended.
Specific legacy:
A gift which is specific and distinguishable from all other chattels of its kind and all other properties of the testator must be properly and sufficiently described.
Example: “ I give my Omega gold what watch which I bought in Switzerland to my son, Gboye”
“ I give my 2008 model Toyota Corolla with Reg.No. BDJ 555 BB to my daughter, Comfort”
Advantage of this type of gift is that it is not liable to abate where there is insufficient funds of the estate is not enough to satisfy all legacies, debts, obligations and other expenses. The disadvantage is that where the specific gift no longer exist or cannot be found at the time of the Testator’s death, the beneficiary get nothing and the gift becomes adeemed (doctrine of Ademption). In case of fear of non existence of a specific gift at Testator’s death, Alternative/Substitution Clause may be used.
Example: “ I give my Gold wrist watch which I bought in Switzerland to my son, Gboye but where the said wrist watch cannot be found or I do not own it at my death, My Executors shall purchase a similar Gold wrist watch for my said son or its money worth in lieu.”
Demonstrative legacy
A gift directed to be satisfied from a specified source or pool of property (usually-but not restricted to-money payable from a particular bank account) Combines the nature of a general legacy and a specific legacy).
Example: “ I give the sum of N1,000,000,000.00 (One Million Naira only) payable from my current account number 0029928892 with GTB Bank, Awolowo Junction, Bodija, Ibadan”
Pecuniary Legacy
It is basically a monetary gift called an annuity where it is expressed to be paid at intervals may be general, demonstrative or specific.
Example: “ I give to my faithful cook, Mary Adedeji N200,000.00 (Two Hundred Thousand Naira Only)”
Residuary Gift
This refers to undistributed residue of the Testator’s estate after satisfying all bequeaths and devises contained in the Will and also after settlement of all obligatons, debts, expenses taxes, and liabilities relating to the estate. It comprises of the following:
•Properties acquired by the Testator after making the will or codicil
•Properties acquired by the Testator after death E.g Section 33 of Wills Act
•Gift that lapsed for lack of substitution clause and
•Gifts that failed for diverse reasons.
Information Required to prepare a Will
•Testator’s particulars or personal details
•Testator’s marital status
•If there is existing Will or Codicil
•Names, occupation and addresses of the proposed executors;
•Whether the executors shall be remunerated or not;
•Names, occupation and addresses of all the intended beneficiaries
•List of all properties given out intervivo
•List of all legacies to be given out in the Will
•List of all real propertie to be devised in the Will ad the custody of the title deeds;
•List of all businesses
•Manner of distribution of the estate to the beneficiaries
•Whether there is a trust, if yes the names, occupation and addresses of the trustees;
•Funeral arrangements (To be contained in a separate letter
•Debts and liabilities
•Provision for gifts that may lapse, fail or become void and property acquired after the making of the Will
Ethical Issues In Will Making
•Competence Rule 16(1)(a) and Rule 14(2))c) of the RPC
•Confidentiality of information Rule 23 of RPC
•Privileged Communication Rule 19 of RPC
•Conflict with personal interest Rule 27 of RPC
•Liabilities and damages for negligence S9 LPA
Proving the Validity of a Will
Although the presumption of regularity enures for the benefit of Will that appears on its face to be ex-facie regular. See Iyamu V Alonge (2007) All FWLR, Part 1247 page 591. However, merely making a Will does not make it valid, mainly because there are usually extenuating circumstances in law that can affect the validity of a Will. Therefore when a Will is challenged, the primary burden of proof of establishing it’s validity is on the person who prepares the Will and it is when this burden is discharged that the burden will shift to the other party challenging its proper execution (secondary burden of proof) to prove that the Will is not properly executed or that it is tainted with fraud or forgery. See Osa-Obunmwenre & Ors V. Osemwenchai & Ors (2022) LPELR-57664(CA).
These circumstances for instance are a lack of mental capacity which include undue influence, and delusion affecting mental capacity. Other circumstances include the vulnerability of the testator(Blindness) which requires a special form of attestation, lack of knowledge and approval by the testator, suspicious circumstances and mistakes and fraud.
Conclusion
Anything about Will has resemblance of Trust. A Will itself can be seen as a trust document ( I stand corrected). A situation where a Trustor appoints Executors through secret trust, which means the Executors are not even aware of the appointment. The Executors (Those he trusted much to bring his intentions to fruition when he is no more) may reject notwithstanding. When accepted, they are to manage his estate on his behalf and for the benefit of the beneficiaries. If this is accepted by all, the Trustees (Executors) has legal interest in the properties, though also has duty to treat them as stipulated by the Testator(Trustor), while the real beneficiaries under the Will has equitable interest in the estate until distributed. Executors can be beneficiaries but they cannot be witnesses because Will is a secret Trust. In ideal situation, witnesses should not even see the contents because it is meant to speak after the death of the Testator.
It suffices therefore to add that because the Executors were not aware of their appointments some usually reject the duty. However since they are usually close confidants of the Testators, they hardly reject. For the reason that they may reject or may be unavailable at the time of the will enforcement, hence there is always a provision for alternative Executors to avoid situation where there would not be anyone to act.
Same way the Administrators through probate registry are equally Trustees of the Estate and with legal interest holding same for the benefit of the Beneficiaries. Under Administration of Estates, Administrators can also be beneficiaries just as Under Will where Executors can be beneficiaries.
4.0 Recommendations
Will can be written by anybody. However to give it more legal face, it is recommended Lawyers are consulted for Will writing. This is because there are certain rules pertaining to what can validate and invalidate it. Language and wording is extremely important in Wills and can derail the process if faulty.
As regards the legal fees, Wills tend to be billed as a flat fee and lawyers would do more psychological pricing considering the nature and capacity of the Testator, also the circumstance of the will writing e.g if being written under emergency or with given timeline.
The following conditions are recommended in line with Wills Act and other laws of States.
1. The Testator or person making the will must be at least 18 years old and of sound mind.
2. The will must be in writing, signed by the Testator or by someone else at the Testator’ direction and in their presence. It must also be signed by at least two witnesses.
3. The Will must be notarized or Affidavits done by the Witnesses and the Testator during the execution to make the proving of the Will easy. It is an old practice to record the Testator on video when instructions are being given by him orally.
4. Lawyers are encouraged to consult the Will Laws of the State of Testator or strictly rely on 1837 Wills Act as amended till date for consistency.
5. The question of Trust extends to Lawyer that prepares the Will and as such, he must protect the integrity of the process using his professional knowledge and guided by Rules of the Profession.
In mid last year, a friend wanted me to write a Will for his father in Law. After taking all instructions from the man and before execution, the said friend asked to know what was contained in the said Will claiming he is my friend who brought the job and that I should trust him but I told him that it is against the rules of the profession to tell him. The fear of these people is, they did not want the father to bequeath any property for the second wife who have been taking care of the man since the death of his first wife in 2002. Interestingly the man bequeathed a house for the woman.
It would have been wrong to even tell them by word of mouth what is contained in the Will let alone showing anybody. Preparation of any Will would test the Integrity of every lawyers as so many ethical traps are involved.
6. Lawyers are recommended to research well while preparing Will as Lawyer’s mistake which caused any beneficiary to lose his or her gifts, may result to action in Negligence against the Lawyer.
7. Lawyers should technically preserve his own income in writing under the Will. For example, by expressly directing in the Will that the Will must be proven by the Lawyer that prepares it. The Law recommends 10% of the value of the Will as payment for the Lawyer that proves it. If the family would not pay 10%, they must negotiate. A lawyer can institute action against the estate if not paid his money.
Other comments, additions and questions are welcome.
