Making A Will In Nigeria

     

  EDITED BY: ASY'KOBI

                                                                                 

   LIMITATIONS ON THE TESTATOR

In some parts of Nigeria, a Will cannot be made to displace customary and native law, rules and inheritance, because of the duality of the Wills system in Nigeria; it would mean that there are two results that may occur depending on the part of the country where the testator is from.In some parts of Nigeria, for example, the Northern part, the main law that governs the making and validity of a Will is the Wills Act of 1837 which is a statute of general application. In some other parts of Nigeria, for example, the old western region, it is the Wills law of their respective states that is applicable.

Therefore, in the parts where the Wills Act 1837 applies, a testator is at liberty to dispose of his properties as he pleases by his Will. In Adesubokun v. Yunusa (1971) 1 All NLR 225, the validity of the testator’s Will was challenged on the ground that as a Moslem who was subject to Moslem law, the testator was not capable of making a Will in accordance with the Wills Act, contrary to Moslem law. The Supreme Court held that a Moslem may by his Will made in accordance with the Wills Act, 1837 dispose of his properties as he wishes. That the Moslem law which provides for equal distribution of a testator’s properties in the face of the existence of a valid Will is in breach of section 3 of the Wills Act 1837 by which a testator can dispose of his properties as he wishes.

Also, in Apatira & Anor. v. Akanke & Anor. (1944) 17 NLR 149, it was contended that the validity of a Will made in English form by a Nigerian Moslem should be governed by Moslem law. This contention was flatly rejected by AMES J., when he held that “the fact that the deceased was a Nigerian and a Mohammedan cannot make any difference to the requirements of the Wills Act”.Presently, the mode of sharing of a testator who is a Moslem is equal distribution amongst all male children; one eight (1/8) to the wife or wives and not more than one-third (1/3) to outsiders – Adesubukan v. Yunusa.

However, in the states of the old Western region which have enacted their own law, there is a provision prohibiting a testator from disposing of his properties in a Will in a manner that is contrary to native law and custom on inheritance, for example, section 1(1) of the Wills Law of Lagos State. Thus, in the case of Idehen v. Idehen (1991) 6 NWLR (Pt. 198) 382, the testator, a Bini man by his devised his Igiogbe (main residential house) to his eldest son, a medical doctor. At the death of the testator, his eldest son, Dr. Idehen was not alive, thereby predeceasing the testator. The surviving oldest son contended that since the original eldest son to whom the Igiogbe was willed have died before the testator; he was entitled to inherit the Igiogbe being the surviving eldest son. This contention was upheld by the court.

Also, in Lawal Osula v. Lawal Osula (1995) 3 NWLR (Pt. 328) 128, the testator, a Bini chief made a Will in English form. The Will completely omitted the 1st plaintiff and some other children. He succeeded to his father’s (testator’s) title and performed second burial rites of the testator. The issue before the court was whether the testator could by his Will exclude the 1st plaintiff from inheritance of the Igiogbe, which by custom goes to the eldest son. The Supreme Court held that the power of the testator to make a Will is subject to customary law relating thereto and that the testator could not validly exclude his eldest son from inheriting the Igiogbe.

Another limitation of the testator can be found in section 2(1) of the Wills Law of Lagos State which provides thus –“Notwithstanding the provisions of section 1 of this law, where a person dies and is survived by any of the following persons:
a)    The wife or wives or husband of the deceased; and
b)    A child or children of the deceased, that person or those persons may apply to the court for an order on the ground that disposition of the deceased estate effected by his Will is not such to make financial provision for the applicant”.
The implication of the above provision is that where a testator fails to reasonably and adequately provide for the maintenance of his surviving dependants in his Will or trust as the case may be, an application may be made to the court for an order for payment to be made for that purpose from the testator’s estate.However, a testator may on reasonable and cogent ground disentitle any of the family member or dependant by stating his reason or reasons for so doing in the Will itself or in a separate document.

PARTICULARS OF INFORMATION REQUIRED TO PREPARE A WILL1.     Take proper instructions – Solicitor must win the client’s confidence. The intentions of the testator is paramount, it is better that the Solicitor should personally take instructions directly from the testator, it is not ideal for a solicitor to delegate his duty to any other person, written instruction are preferable. The solicitor should cover the entire field; the use of checklist is recommended. Where the testator gives oral instruction, copious notes should be taken and no information should be ignored.

2.     Diligence and care – When drafting a Will, the solicitor must be meticulous and exercise a high degree of care and attention. The consequence of an error or ambiguity that is undetected until after the death of the testator is fatal and open to unpredictable judicial interpretation. Remember that the solicitor may be liable for his negligence in the drafting of the Will – Ross v. Counters (1980) Ch. 297.

3.     Knowledge of the law – When embarking on the task of drafting a Will, the solicitor should bear in mind the importance of compliance with the applicable law on the essential and formal requirements of a valid Will. The testator must possess the requisite testamentary capacity, the witnesses should be contacted and where the testator is under any disability such as illiteracy or he is blind or he is dumb and deaf, the necessary jurat should be inserted and all legal requirements complied with. The place for the execution of the Will should be spacious enough to accommodate all concerned. Solicitors must always use good precedents, which he can modify according to his need.

4.     Extent of the testator’s property – The solicitor should be furnished with details of the properties owned by the testator. The title, location and value of such properties; information on any gift made inter vivos is also relevant. Information concerning the testator’s interest in any company, insurance policy, pensions or any other venture is necessary. Knowledge of the extent of the testator’s property is important in advising him and the calculation of estate duty; it may also be useful on the question of hotchpot (that is, the blending and mixing together of property belonging to different persons into a common lot in order to divide it equally). Instruction should be taken in respect of any property of the testator that is subject to customary law; any disposition of such property contrary to the relevant customary law may render the gift void.

5.     Composition of the testator’s family – The solicitor should be informed about the members of the testator’s family and his dependants. Where the testator is married, the solicitor should ensure that adequate provision is made for the spouse to avoid the intervention of the court in making reasonable provisions for family members and dependants. Where the testator is not married, he should be informed of the legal consequence of subsequent Marriage Act on the Will.

6.     Former Will – The solicitor should confirm if the testator has any previous Will or testamentary document that is not yet revoked. Where there is, it should be ascertained whether the present Will is intended to revoke the previous Will so as to properly reflect the intention of the testator in the Will. There is no reason why the testator should have more than one Will, a codicil may just be sufficient to carry out the testator’s instructions.

7.     Executors – The testator should be advised on the relevant considerations concerning those to be appointed executors and also whether it is necessary to also make them trustees. Where the executors will carry out professional duties under the Will, the necessity of a charging clause should be considered.

8.     Directions as to the mode of burial – Instructions concerning the disposal of the testator’s body are sometimes included in the Will. But it is not advisable that its inclusion in the Will is the only means of knowing how his body should be disposed of. In most cases, the dead is buried before his Will is read. This point is more relevant to the Will of a Moslem; under Islamic law, a Moslem is buried within 24 hours of his death according to Islamic burial rites. Therefore, where the testator desires that his body should be disposed of in any particular method, this should be communicated to close relatives, associate or executors of the Will during the lifetime of the testator.

The summary of the above is that a solicitor who is briefed to draft a Will should note the following information –1.     Ask of the testator’s name, nickname, date of birth, religion, nationality, state of origin, profession and address.
2.     Find out whether he has made any previous Will, and if yes, whether the Will can be made available to you.
3.     Ascertain his marital status.
4.     The name, profession and address of the executors, and any specific instruction as to the remuneration of the executors.
5.     List of legacies to be given out.
6.     Properties given out inter vivos.7.     List of his realties (landed properties and the custody of their deeds or document of titles).
8.     State the name and addresses of the beneficiaries.
9.     Manner of distribution of the estate to the beneficiaries.
10.  Ask whether there should be any alternative/substitute beneficiaries, if any of the beneficiaries predeceases the testator.
11.  Name, address and occupation of the witnesses.
12.  Solicitor’s remuneration.
13.  Ask if the testator may need to leave any instruction as to his funeral or debt owed by him and note these separately in another document.
14.  Ask about his debts and liabilities.
15.  Ascertain whether there is need for survivorship provision.

PARTS (CONTENTS) OF A WILLThe various parts of a Will are –1.     Commencement
2.     Revocation clause
3.     Appointment clause
4.     Directive and Charging clause
5.     Gift clause
6.     Residuary clause
7.     Testimonium
8.     Execution and attestation clause

COMMENCEMENT and DATETHIS IS THE LAST WILL AND TESTAMENT OF ... MADE THIS ... DAY OF...This provides for the full names (and any former names or alias), address, occupation and the date of the Will.Where no date is inserted in the Will or if the date on it is contested, the evidence of the attesting witnesses or some other persons present at the time of execution is admissible to prove the date of the Will – Adebajo v. Adebajo (1973) 3 ECSLR 544.

REVOCATION CLAUSEI HEREBY REVOKE all previous testamentary dispositions made by me...Every Will should provide for the revocation clause, except where the testator intends that he has other Wills that should be interpreted together, and both may be admitted to probate at his death. Having more than one Will is not good because it could be interpreted as implied revocation of the earlier Will.

APPOINTMENT CLAUSEI APPOINT... to be the executors and trustees of my Will. AND I DECLARE that the expression “my executors and trustees” shall where the context so admit include...With or without executors, the Will is valid. It is important that every Will make provision for appointment of executors who may also serve as trustees. The trustees may also act as guardian for the testator’s infant children. It is important that the testator appoint a minimum of two and a maximum of four executors. The executors should be persons who are willing and capable to discharge their duties as executors.

DIRECTIVE AND CHARGING CLAUSEI AUTHORISE MY EXECUTORS TO CHARGE... or I DECLARE THAT MY EXECUTORS SHALL CHARGE...
This clause is for the benefit of professional executors who are, by this clause, permitted to charge professional fees for jobs done in the performance of their duties as executors.

     GIFT CLAUSEI GIVE TO...The Will should provide for the various gifts, which may be specific, general, demonstrative or pecuniary. The clause is usually numbered serially.

RESIDUARY CLAUSEI DECLARE THAT THE REMAINDER OF MY ESTATE SHALL... or I GIVE TO...
This clause provides for how the remaining properties of the testator not given out under the Will should be disposed of.

TESTIMONIUMIN WITNESS OF WHICH...The testimonium links the testator with the Will.EXECUTION AND ATTESTATION CLAUSESIGNED BY...A Will must be executed according to law. A Will is not executed as a deed; it is executed as ‘SIGNED by...’ Where the testator is illiterate, blind, dumb or deaf, the jurat should be inserted. The names, signature, address and occupation of at least two witnesses must be provided.

ETHICAL ISSUES1.     A solicitor should draft a Will in clear and plain language to reflect the instructions of the maker and not create an ambiguity.
2.     Where the solicitor is a beneficiary in a Will, he should comply with the rule laid out in Wintle v. Nye (1959) 1 WLR 284 (that he has the burden of proof necessary to dispel it).
3.     The solicitor may be liable in negligence where he fails to advice the testator that a beneficiary to a Will (or his spouse) cannot attest the Will.