By Bright Ogbonna
Chief Ekwenwoke Ubadianya, a successful importer of exotic wines in Nigeria and based in Warri, Delta owns real estate in Lagos, Port Harcourt, Abuja and Calabar in addition to several distributorship outlets in South-Eastern Nigeria. He had five children – four sons and a daughter. In 2015, Chief Ubadianya suffered a massive coronary which led to his death.
Immediately after his demise, his first son, Alex Ubadianya gathered the documents of title to the properties and promised to distribute the properties to each of his siblings after the funeral ceremonies. Chief Ubadianya did not make a will. The matter was never discussed after the funeral as he kept postponing any family meeting in which the property was to be discussed.
In 2019, after intense pressure had been mounted on him by his uncles, Alex attended a family meeting with his siblings. At the meeting, he declared that he was not ready to hand over any of the real estate or shops to anybody since by Igbo native law and custom, he was the sole owner as the first son. It was only when Edward Ubadianya, the third son, visited their eldest brother in the dead of the night in the company of three masked men who put a gun to Alex’s head that he handed over documents to three of the properties to him. Anthony Ubadianya, the fourth son is planning a repeat of the dead-of-the-night-visit for his own share, while Michael the second son is wondering if he should go fetish. Lorraine Ubadianya, the only daughter, out of fear has abandoned the hope of any share in her father’s property, consoling herself that someday she will be married and it won’t matter anymore.
The above narrative is but one of the instances which can result from the failure of a person to prepare a will. In order to prevent scenarios akin to the above, it is sought in this article to explore the nature of a will in order to provide insight as to how it works in the hopes that many more persons would embrace the culture of making wills and forestall the many inconveniences, problems and expenses arising from the absence thereof.
Nature of a Will
Many persons have tried to define or describe the nature of a will. But since a will is a legal document we shall employ a definition which incorporates the legal characteristics.
A testamentary and revocable document, voluntarily made, executed and witnessed according to law by a testator with sound disposing mind wherein he disposes of his property subject to any limitation imposed by law and wherein he gives such other directives as he may deem fit to his personal representatives otherwise known as his executors, who administer his estate in accordance with the wishes manifested in the will.
(1) From the above definition, certain points are highlighted. The first is that a will is testamentary.
This means that a will has no effect until the maker (testator) dies. Consequently, a person cannot claim any benefit under a will until the maker of the will dies. A child for instance, who happens to see that he has been given a property under a will by his father cannot exercise any right of ownership until his father dies.
Secondly, a will is revocable. This means that as long as the testator is yet alive, he can make as many changes to the will as he wants, including cancelling the entire bequests. In fact, there are circumstances which require that a person must change his or her will when they occur. For instance, if a person marries after making a will, such will, except in certain circumstances, is automatically revoked.
(2) The revocation of a will means that if there is no other will made by the testator, the person will be said to have died intestate ( without making a will).
Again, a will is valid only if it is made voluntarily. This requirement entails that the testator must have been on under no compulsion, duress, threat or undue influence. Once it is proven that a will or any bequest therein was procured by any means which prevented the testator to fully exercise his will, the will be discountenanced.
(3) Of course, persuasion by a family member does not necessarily negate voluntariness on the part of the testator or constitute undue influence, provided it does not aggravate to the point of coercion. Certain relationships in which the testator is involved are usually suspicious when the testator bequeaths them with inordinate amount of gifts, for example, a lawyer/client, confessor/penitent, husband/wife. It is however the onus of the beneficiary to the will in the event of a dispute to prove that the bequest in his favour was made voluntarily by the testator.
Our working definition above requires that a will has to be executed (signed). The requirement of the execution of a document pre supposes that such a document has to be in writing. In Africa, it is not uncommon to have oral bequests in the lifetime of the testator, even among seemingly enlightened individuals. However, disputes which arise subsequently, contending the veracity of the oral bequest necessitate that a will be made in written form. Moreover, Section 9 of the Wills Act 1837, like the Wills Laws of many states in Nigeria requires that a will be made in writing. In other words, a will which is not in writing is invalid. On the issue of execution, the will must be signed by the testator at the end of the document. There is a presumption that anything written after this signature was not made by the testator and is therefore invalid.
(4) Thumb prints constitutes a valid form of execution.
(5) Blind and illiterate testators must have knowledge and approval of the contents of their will. The will in this instance, may be signed by someone else in their presence and at their direction, after which the witnesses must affirm that the contents of the will has been read to them and they appeared to perfectly understand.
Further, a will has to be attested by two witnesses. Generally the purpose of witnesses is to further assert the voluntariness and regularity of the will. For this reason, the witnesses must sign in the presence of the testator. Now, for the purposes of negating foul play, witnesses to a will are generally not allowed to benefit from the will except in certain circumstances, like where there are already two other non-benefitting witnesses or where the gift is confirmed by another will not attested to by the benefitting witness.
The final attribute of a will within the scope of our definition is the requirement of soundness of mind of the testator.. The law presumes that the testator was of sound mind at the time the will is made, until contrary evidence is advanced See WELLESLY V VERE (1841) 2 CURT 917. The voluntariness of the will is then put to question. A sound mind requires a fulfilment of three basic co-existing conditions:
a. The testator must understand that he is giving his property to one or more objects of his regard.
b. He must understand and recollect the extent of his property.
c. He must also understand the nature and extent of the claim upon him both of those whom he is including in his will and those he is excluding from his will.
(6) It is however settled that a testator must have sound mind at the time of giving instruction for the preparation of the will and at the time of execution.
Advantages of making a will
Making a will entails accepting one’s mortality. As a result, the inner turmoil occasioned by planning for one’s death is something most people would rather avoid. Moreover, it is superstitiously believed in some parts of Africa that making a will brings one closer to his demise. According to a recent survey, 8 out of 10 Nigerians over the age of 45 don’t have a will and 7 out of 10 will not make one before they pass.
(7) However, the benefits of making a will far outweighs the fears and discomfort which accompanies the disposition especially when compared with the negative consequences imminent when upon one’s demise there is no will. We shall look at a few obvious advantages of making a will.
a. Control of your assets even after your demise.
For many persons, the administration of their assets when they are no longer here constitutes a big part of their worry. A business owner or entrepreneur is worried if the legacies of his business will be maintained. A parent is worried if his children will actually inherit his/her properties upon their demise as against unscrupulous step parents, uncles, aunties and the like. A will ensures that the specific instructions given on how their assets, legacies and interests are to be managed and distributed when they exit the scene permanently.
b. Appoint persons of your choice to run your affairs.
A will enables a person to exercise the right of choice to the administrators of his estate.
Without a will, a person’s estate is usually governed by the laws of the state who appoints an administrator according to the Administration of Estate Laws of the state for the deceased’s estate. Similarly, the estate may also be administered by the elders or family members of the deceased according to the customary law, depending on which law governs the intestate administration. But the choice of these administrators may not be the wishes of the deceased for any number of reasons. By making a will, the identity of the manager of the estate is established by the testator.
c. Avoid unnecessary probate process.
Probate is the authority given by the Court to a person to assume legal ownership of a property belonging to a deceased person either under a will or by the powers obtained under a grant of Letters of Administration (where there is no will). A beneficiary under a will cannot assume legal ownership of a bequest without probate. The process of transferring property from the estate of a deceased testator to a beneficiary under a will is relatively simpler and less cumbersome than where there is no will. This is because once the will is read and the relevant documents are submitted to the Probate Registry, within a relatively shorter period, probate is granted. Upon the grant of probate, the executors named in the will, can subject to any conditions stipulated in the will, assent to the bequest and hand over the property to the beneficiary. On the other hand, where there is no will, certain individuals in the order of relationship with the deceased, make application for the grant of Letters of Administration.
(8) The processing of the application entails all the processes required for the grant of probate and a publication of the application in a National Daily Newspaper for a period of 21 days. This publication is to enable any person opposing the proposed grant, an opportunity to enter a caveat. The publication sometimes attracts opposition resulting in litigation which carries its blend of expenses, inconveniences and uncertainties.
d. Ensures your goodwill towards your family and loved ones are executed.
Where there is no will, the management of the deceased’s estate follows the strict regulations of the Administration of Estates Law of the state. Consequently, any intention to make a bequest on any person not recognized under Administration of Estates Law, like charities, extended relatives and friends is frustrated. A will on the other hand gives the testator the freedom to extend his good will to every one including those not related to him or her. It also enables the testator to refrain from making bequests on persons whom he chooses not to.
e. Reduces the chances of contention over estate.
We have recognized earlier that the publication of the application for the grant of Letters of administration can open the doors to litigation. Uncertainty among the survivors of a deceased intestate in many instances lead to litigation to determine the rightful devolution of real estate, especially when a party is already in possession. In many instances, some families resort to devolution of the estate by native law and custom which sometimes disinherit certain individuals like women. Aggrieved persons in this instance resort to litigation. Further, a deceased intestate may have sold property in his life time without informing his children. An attempt by the children to take possession of the sold property may result in litigation.
f. Opportunity to determine funeral arrangement.
A will affords a person the opportunity to determine the procedure, place, capacity of his funeral. This is most necessary given the extended family system run in Nigeria where the members have varied opinions on the manner of burials. Instructions made in a will could provide clarity on the wishes of the deceased.
g. Cheaper administration of Estate.
An application for the grant of Letters of administration entails the production of sureties and the execution of bonds which is a form of security that the applicants shall administer the estate in line with the requirements of the law for the benefit of the survivors of the deceased. The amount of the bond is determined by the size of the estate. The grant of probate on the other hand, does not require any sureties or bonds since the executors are already named in the will. This cost is avoided by making a will.
Further, in the event of the death of the last administrator without winding up the estate, it shall be necessary to make a fresh application for Letters of Administration.
This would entail fresh expenses in and filing administrative and solicitor’s fees. This is not the case where there is a will. As long as the last surviving executor makes a will, his responsibility as an executor devolves in his will to his own executors. Upon his death, his executors can carry on his obligations until the estate is wound up.
Essentials parts of a will
1. Introduction.
This part introduces the document and declares it as the final testament of the testator, revoking any and all previous bequests, promises and declarations made by the testator on the estate and matters stated in the will.
2. Introduction of the testator.
This part introduces the testator stating his names, title, aliases addresses and other personal details. It must also state his marital history and status, together with the names and addresses of his wife/wives, children and other beneficiaries like parents, siblings, friends or charities.
3. Appointment of Executors and Trustees.
This part contains a list of persons who shall carry out all the instructions of the estate regarding the will. It is required that a minimum of 2 and a maximum of persons be appointed, taking care that they are trusted individuals likely to outlive the testator. Depending on the size of the estate and the intentions of the testator, it may be necessary state the powers of the Executors.
4. Outstanding Obligations.
Here, the testator discloses all his debts and obligations, especially, those which to his knowledge is likely to affect the dispositions made in the will and how these obligations should be discharged.
5. Disposition of assets.
This enables the testator specifically make gifts of his assets to the beneficiaries in the manner of his choosing, making instruction as to any conditions which attach to the bequest, if any.
6. Execution and Attestation.
As earlier stated, a will must be signed by the testator at the end of the document with each of two attesting witnesses signing the will in the presence of the testator, all with the date.
INTESTATE SUCCESSION (INHERITANCE WITHOUT WILL)
Where a person dies without making a will, two streams of law may govern the administration and devolution of his estate (property) – Administration of Estate Law and Customary Law. The determinant of the applicable option is largely dependent on whether the deceased contracted a Marriage under the Act (Christian Marriage) or Customary Law Marriage.
(10) We shall briefly discuss below the entailment of the two streams.
The Administration of Estate Laws of the State
Regarding intestate succession, the Administration of Estates Laws of the various states govern the administration of a deceased’s estate. Apart from the deceased not making a will, intestacy may arise where the will does not cover certain properties of the deceased by omission of the testator, or where the executors appointed renounce the appointment for one reason or another. In any of the three scenarios, the state administers the estate with the Law as their guide. The spouse and children of the deceased, and in their absence, his or her parents and siblings are required to apply for the Letters of Administration which authorizes them to administer the estate and distribute the estate to statutorily qualified beneficiaries. A beneficiary under the authority of Letters of Administration acquires full legal title.
Customary Law Inheritance
Customary law embodies customs as practiced by the people which they regard as binding on them.
(11) This entails the traditional practices of the indigenous people practiced over time and recognized as custom. In Nigeria, there are as many customary laws as there are a diversity of peoples. Consequently there are varied customary law regimes in Nigeria. Customary law is recognized in Nigeria as a form of preservation of the indigenous culture and traditions of the various people. It is applicable in areas wherein the statute does not cover.
(12 ) Regarding inheritance, considering the various customary law practices in Nigeria, it is pertinent to determine which is applicable to a deceased intestate. The applicable customary law is the customary law of the deceased.
This is usually, the law of his place of origin or personal law. In other words, an Igbo man residing in Lagos would have his estate administered by Igbo customary law if he dies intestate. This position is not however, not absolute. Where it can be shown that a person has assimilated the customs of another place, the customs of the assimilated culture can govern the administration of his estate.
(13) The Courts have recognized certain customs in Nigeria and will apply it in the appropriate circumstances. The Igiogbe Custom of Benin which recognized the exclusive right of the first son to the fathers house has been recognized
(14) and accorded judicial notice as well as the Idi igi method of distributing a deceased’s estate equally among the wives.
(15) It is the deceased’s preferred personal law that is applicable. It would appear that the purpose of gleaning the lifestyle of the deceased for the purpose of determining the appropriate intestacy law is to ensure that the wishes of the deceased as much as practicable is achieved.
Unlike the practice under the Will’s Laws wherein a person can bequeath his property to strangers, charities, churches and the like, children are the exclusive beneficiaries of their father’s estate under customary law.
(16) Unfortunately, customary law of certain areas tend to disinherit certain class of persons sometimes unfairly. In the Igbo Custom, the primogeniture rule which confers exclusive rights to the eldest son usually disinherits wives and female children. The courts have therefore stepped in to apply the provisions of the Constitution to abrogate the application of that custom. In MOJEKWU V MOJEKWU.
(17) The court held that a Customary Law that allows only males to exercise a right of inheritance and denied female children of a deceased the right of inheritance while conferring the right on a distant male relative is not only discriminatory, it is equally repugnant and unconstitutional as it conflicts the provision of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
Rights of inheritance for spouses.
Irrespective of the form of marriage, every person has a right of inheritance from the spouse under a will.
Further, any person married under the Marriage Act, not only has a right of inheritance upon the intestate demise of the spouse, but also has priority in the application for the letters of administration. Marriages under the Marriage Act includes Christian Marriage or Marriage at the Marriage Registry which are evidenced by a marriage certificate issued under the Marriage Act.
Conversely, a person married under native law and custom has a right of inheritance only to the extent allowed by custom.
Unfortunately, no custom in Nigeria allows a widow, the right of inheritance. Notwithstanding, the courts have on a case by case basis began to establish the right of a widow to a share of her husband’s property upon his demise in spite of this customary position.
(18) How is a will preserved?
Because of the sensitive nature of a will, it is best preserved in a neutral but secure place where the executors of the deceased can find it. The following places are appropriate:
a. The Probate Registry of the High Court in the location wherein the deceased lived.
b. Personal safe (provided it can be accessed)
c. The Bank.
d. The office of the deceased’s lawyers.
e. A trusted friend or associate.
Where the will is stored anywhere else apart from the Probate Registry it ought to be registered at the Probate Registry before it is proved.
Conclusion
Considering the hardship, uncertainties, risks and expenses associated with the absence of a will, the interest of both the testator and the beneficiaries are best served where a will is made well ahead. It can also be changed as circumstances of life change.
References
1 K.Abayomi, Wills: Law and Practice, Mbeyi & Associates Ltd. Lagos, 2004.
2 Section 18 Wills Act 1837; Section 15 Wills Law of Lagos.
3 HALL V HALL (1868) LR 1 P and D 481.
4 K. Abayomi, Wills: Law and Practice, Mbeyi & Associates Ltd. Lagos, 2004.
5 Estate of Randle (1962) 1 ALL NLR 132
6 Williams on Wills 5 th Edition p. 25.
7 M.Ojeah, “Will’s Act and the Requirements under Nigerian Law”, manifieldsolicitors.com
8 Section 49, Administration of Estates Law of Lagos State.
9 Order 48 Rule 32
10 M. Onokah, ‘Family Law’ Ibadan, Nigeria, Spectrum Books, 2003.
11 I.E. Sagay, Nigerian Law of Succession, Principles, Cases, Statutes and Commentaries, Malthouse Press Ltd. 2006, p.73.
12 I. O. Bbih’ Customary Succession in Modern Ibo land: Judicial and Legislative Dimension in focus’ UNIBEN Seminar Paper 2008/2009.
13 OLOWU V OLOWU &ORS (1985) 3 NWLR (PT. 13) 372
14 B.Musa, ‘Principles and Practice of Succession under Customary Law’, Paper presented at the National Judicial Institute 22 nd March, 2017.
15 (1997) NWLR (PT. 512) 283
16 SUBERU V SUNMONU (1957) 2 FSC P.33
17 DANMOLE V DAWODU (1958) 3 FSC 46
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