Chairman, Nigeria Bar Association (NBA), Ikeja Branch Onyekachi Ubani explains the requirements for writing a Will, adding that a testator can also make a miniature Will called Codici.
That death is inevitable is no longer debatable. It started from the Garden of Eden where Eve and Adam were
deceived by the serpent to eat the forbidden fruit.
The punishment for that disobedience was the ultimate pronouncement by the Almighty God that death will be the ultimate price man and woman will have to pay for that grave infraction. It has remained like that from that time till today.
Out of dust we came and to it shall we all return; none is exempted – the rich, the poor, the beautiful and the ugly, the white and the blacks.
In the light of this fact of life, every man and woman is expected to put his or her house in order prior to death to avoid certain ugly happenings that crop up after departure especially when that exit is so sudden. The rate at which colleagues and fellow Nigerians are dying daily necessitated this write up.
It becomes more imperative when one discovers that often times when these people drop dead, the dependants are left to struggle with the relatives of the deceased over his real and personal properties.
It is more appalling in certain cultures where the parents or relatives of the deceased are culturally allowed to take precedence over the dependants in sharing the properties of the deceased. The dependants are usually left in the dark to suffer perpetually especially when they are of school age with no other source of help.
We advise that a Will be written by every matured adult with dependants to mitigate the hardship that usually occur to them in the absence of these loved ones.
Talking about putting one’s house in order, we must learn a good lesson from one man called Ahithophel in the bible. He gave Absalom the son of David advice but Absalom rejected his wise counsel and preferred that of Hushai, not knowing that the Lord God had determined to frustrate the good advice of Ahithophel in order to bring disaster to Absalom. That night when Ahithophel saw that his advice had not been followed, he saddled his donkey and set out to his house in his home town.
Bible recorded that “he put his house in order and then hanged himself”. By putting his house in order, it meant that he may have written a Will or may have shared his properties appropriately to his dependants before hanging himself. How many of us today behave like that man called Ahithophel by putting our house in order?
The moment you are of age and have properties both real and personal to pass inter-vivos to a favoured beneficiary, then you are qualified to write a Will. The one who writes a Will is known in law as a Testator. A Statutory Will is one made in accordance with the provisions of the relevant statutes in force. Some of the relevant laws governing Will in Nigeria include the Wills Act 1837, Wills Act Amendment Act 1852, Wills Edict 1990 of Lagos State etc.
For a Will to be valid, the Maker of the Will must ensure that he or she complies with the necessary requirements prescribed by the relevant laws governing the making of Wills. If the making of a Will complies strictly with requirements of the governing law, the courts will give efficacy to it by the grant of a Probate.
It is, therefore, advisable that a Testator should hire a competent hand with the necessary skills and sufficient expertise to produce a Will that will pass the test of the law while reflecting the wishes of the Testator accurately.
There is oral Will too. It is called Nuncupative Will and it takes effect under Customary Law. It is an oral directive of someone made in anticipation of death before credible witnesses. It can be made either in good or in bad health.
A Will is a document that speaks only after the death of the Testator; it is a testamentary. A Will is nothing until the death of the Maker. He or she can amend it, cancel it by destroying it. Until death, it remains a mere declaration of intention. Therefore a beneficiary under a Will can only take interest in any property disposed by Will only after the death of the Testator. (I am sure you must have watched films, seen or heard of a Testator whose death is facilitated by a potential beneficiary who have a prior knowledge of the contents of his Will and knows that he or she cannot take interest in the properties devised until the death of the Testator). It is bad, but it is a reality.
Due to the fact that a Will speaks only upon the death of the Testator, the courts have laid down strict rules to ensure full observance of statutory requirements in the making of Wills. The purpose of this is to ensure that no fraud or lies are committed against the dead who is no longer available to defend what is written down about his wish. The burden of proof rests upon the party propounding the Will and he or she must satisfy the conscience of the court that the instrument so propounded is the last Will of a free and capable Testator.
There are so many definitions of a Will by various authors, but the definition that suits and satisfies me is the one given by Dr. Kole Abayomi my former lecturer at the Law School, who defined a Will, thus: “A 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”.
These key words should be noted in this definition. They are:
1. Revocable document
2. Voluntarily made, executed and witnessed
3. A Testator with a sound disposing mind
4. Subject to limitations imposed by law
5. To personal representatives known as executors to administer
6. His wishes manifested in the Will
The requirements of proper form and due execution of a Will is worthy to be expanded here for the general public to know.
a)A Will should be in writing. Section 9 of the Will Act 1837 provides for this assertion. This Act is of general application unless a specific law in any state derogates from that provision.
b)A Will is subject to amendment, alteration at the pleasure of the Testator while alive. It cannot be tampered with upon death, else it shall be declared null and void.
c)For a Will to be binding, the subject matter, meaning the gift, must be identifiable. It should not be unclear or vague. Secondly there must be certainty of obligation. What this means is that for the court to recognise an obligation and ensure enforceability, the obligations must be very clear as mere intention will not be approved by the courts. Thirdly the Will must comply with statutory requirements. Disposition of things like land requires alienation to be in writing (see S.5(2) Law Reform (contract) Act of 1961.
Due execution of a will
It is also very important to note that due regard and attention is paid by the courts on how a Will is executed by the Testator. In Nigeria almost all if not all the states have a provision in their State Laws on Wills. These laws have taken into account the Wills Amendment Act of 1852. The Wills Laws clearly take care of all the requirements of due execution including the positioning of the signature. Basically duly executed Will must be in this form.
a)A Will must be in writing. It could be handwritten or typed.
b)It must be signed either by the Testator or by any other person in his presence and by his direction. Signature for this purpose may be a cross, an initial, rubber stamp or a name or signature. A thumb print can also be accepted. Where an illiterate executes a Will, an attestation clause called illiterate jurat should be inserted asserting that the contents of the Will had first been read over to the illiterate Testator who appeared perfectly to understand and approve of same. Same applies to a blind person.
c)The signature of the Testator may be acknowledged. As alternative to signing his signature, the Testator can acknowledge his signature and the law allows it and regards it as valid provided that other conditions are met.
d)The position of the signature must be such as to ensure that the Testator intends to give effect to the Will with his signature. It is obvious that any disposition or directive coming after a signature may be regarded as a nullity.
e)The Will must be signed by the Testator or someone else in his presence and at his direction (or acknowledged by the Testator) in the presence of at least two witnesses present at the same time. In the presence of witnesses, means actual visual presence of two of the witnesses. It is a strict rule that must be complied with, else the Will will be voided. On no account should the witnesses attest to what they have not seen or witnessed. Therefore they must see the Testator sign his signature or acknowledge his signature. The witnesses must see the signature before their own attestation. It is imperative to warn that any Will in which the Testator put his signature after the attestation of the witnesses shall be regarded as a void document. If a Will has complied with all these conditions specified therein, there is a presumption of due execution in its favour.
The law presumes that that which is required to be done has indeed been done. This is otherwise known as presumption of regularity.
Capacity to make a Will is also key. Age wise and the soundness of mind are usually an issue. If it is proven that at the time the Will is made that the Testator is of an unsound mind or of insane delusion or is suffering from such an ailment that impairs him from knowing what he was doing, the Will will be set aside.
The test for all times is “has the Testator the requisite sound disposing mind at the time the will was made”? If the answer is in the alternative, the Will be held to be valid. Similarly if a will is made under undue influence or pressure from any quarter whatsoever, that can vitiate the entire process.
Finally, a testator can also in his lifetime make a miniature Will called Codicil while alive. It must comply with all the requirements of a Will or else it can be voided. Codicils is annexed to or supplemental to or related to a Will previously executed. It is part of the major Will and should be taken or read together. It is used for many purposes part of which include
a) Correcting the initial Will
b) Taking care of new acquired properties
c) Replacing or appointing new executors.
d) Correcting a clerical error in the major will etc.
This is where we will stop today, but note that the purpose of this write-up is to educate fellow Nigerians on how to put their houses in order before they are called home by their Maker. It is not meant to provide all that you need to know concerning a Will.
It is advised that any one who intends to write a Will should consult a lawyer who is skillful in the act of writing of a Will to help do the needful including ensuring the proper deposit of the Will at the appropriate Probate Registry in the State.
A Will is proven upon the death of the Testator and a grant of a Probate is made when all the requirements of a valid will is satisfied by the Officials at the Probate Registry.
•Concluded
