Preparing for the Inevitable; The Utmost Need to Have a Will – Otomiewo E. Edore

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Sometimes I ask myself ‘What is the most essential thing that one can learn from Billy Graham’s death?’ Billy Graham often tackled the topic of death with all honesty. When Billy Graham held his sermons, he said ‘Death is Inevitable’. Now this begs the question on how we prepare for the inevitable.

Firstly we have to come to terms with the fact that we will die someday, secondly we have to ensure that adequate steps are taken in order to make sufficient preparation and finally, make adequate provision for those we are leaving behind. All of the above mentioned, points to one direction. That is, the ‘UTMOST NEED TO HAVE A WILL’. 

THE UTMOST NEED TO HAVE A WILL 

INTRODUCTION

A Will is defined as the legal expression of an individual’s wishes about the disposition of his or her property after death. [1] A Will could also be defined as the sum of what the testator wishes or wills to happen on his death.[2]

The maker of a Will is called a TESTATOR, or TESTATRIX where the maker is a female. Where a person makes a Will, he/she is said to have died TESTATE. However, where none is made, he/she is said to have died INTESTATE. The person entitled to the benefits or properties under the will is called the BENEFICIARY and sometimes SUCCESSOR. The personal representatives appointed under the will to administer the estate of the deceased are called the EXECUTORS where the deceased dies INTESTATE, ADMINISTRATORS are appointed to administer the estate.[3]

THE MAJOR FEATURES OF A FORMAL WILL

A Will is testamentary, that is, it speaks after the death of the testator.[4] This however, distinguishes it from other documents which take effects inter vivos. A Will is also said to be ambulatory which means that it is capable of being changed and revoked during the life time of the testator; it is revocable so long as the maker is living. A Will can be voluntary because it must be independently and freely made without pressure and undue influence from other persons. Furthermore, it is made, signed and witnessed according to the law and it identifies the property and names of the beneficiaries of the gift in the Will.[5]

It is important to note that one must comply with the formalities of a Will. That is, there must be an intention by the testator to dispose of his properties. Where a Will complies with all the formalities but there is no intention, it is not considered as a Will. 

CONTENTS OF A VALID WILL

  • The full name and address of the testator.
  • The names and address of the executors who will be in charge of the testator’s assets to ensure that the wishes under the Will are carried out.
  • The full names and addresses of the beneficiaries in the will.
  • A full list and particulars of the testator’s assets; all the assets of the testator both real and personal should be listed, and how he wants the assets shared among the beneficiaries.
  • The names and addresses of witnesses to the Will. 

TYPES OF WILLS

  • FORMAL WILL: These are Wills made according to prescribed form as required by the relevant wills laws. It derives from English law and it is required to be signed by the testator and attested by at least two witnesses.
  • MUTUAL OR RECIPROCAL WILL: This Will is made by two or more individuals. They are reciprocal because they make provisions for each of the makers of the Will, or an agreement between them to dispose their properties in a particular way. This is common among husband and wife where each leave their property, usually, to the other on the condition that the second to die will necessarily then leave all their estates including that of the first to die to an agreed third party.[6]
  • STATUTORY WILL: These are Wills made in accordance with the requirements of a statute. An example of a statutory will is that of the Armed Forces Act Cap. 420 Laws of the Federation of Nigeria 2004.
  • NUNCUPATIVE WILL: These are Wills which are delivered orally to witnesses, as opposed to the usual forms of Wills, which is written.[7]
  • HOLOGRAPHIC WILL: These are Wills which has to be entirely written by the testator. Its validity depends on the State jurisdiction which chooses to recognise such Wills.
  • PRENUPTIAL WILL: These are Wills made preparatory to a marriage.
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BENEFITS OF MAKING A WILL

  1. It prevents the traditional or customary law of the testator from prevailing.[8]
  2. The testator if so desires, can appoint and select a guardian to look after his children.
  3. The testator has the satisfaction of benefitting his loved ones.
  4. The testator has the satisfaction of appointing people he trusts as his executors who has the duties of carrying out his/her wishes.
  5. A Will saves time and money. This is because the personal representatives derive their authority from the will and begin to act immediately.[9]
  6. A Will displaces the application of the rules of statutory devolution.

CAPACITY TO MAKE A WILL

The fundamental requirements for a Will to be valid are that the testator must be of full (legal) age and have the essential mental capacity to make a Will. If the Will is rational on its face and correctly executed, it will be presumed that the testator is of legal age and have the mental capacity and therefore any individual challenging the Will on these grounds will need to show that the testator lacked these fundamental requirements.

REQUIREMENT OF LEGAL AGE

The testator must be of age approved by the relevant laws;

  • According to Section 7 of the Wills Act 1837, the legal age by which a person can make a will is 21years.[10]
  • According to Section 3 of the Wills Law of Lagos State, the legal age by which a person can make a Will is 18 years.[11] 

MENTAL CAPACITY

No person is capable of making a Will who is not of sound mind, memory and understanding. The testator’s mind must be said to be capable of forming the testamentary intentions in the Will. His/her memory must be sound to recall the several persons who ought to be considered as his possible beneficiaries.[12]

The test for determining if the testator had the mental capacity when making his/her Will was laid down in the case of Banks v Goodfellow.[13] Cockburn CJ laid the test in the following ways;

  1. The testator must understand the nature of act of making a Will and its effect.
  2. Whether the testator knew the nature of the property and the extent of the gift made?
  3. Whether the testator has a good knowledge of the beneficiaries.
  4. The Will must the rational.
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It is very crucial to note that the Will of a person who is sane at the time of giving the instructions for the preparation of the will but insane at the time of the signing, may be valid or invaliding depending on the facts of each case. If the instruction was personally given to a Solicitor, the Will will be held to be valid.[14] However, if the instruction was given through a lay intermediary to be further communicated to a solicitor, it will be held to be invalid.[15] 

PROOF OF VALIDITY OF A WILL

Where a Will is ex facie duly executed, the court may pronounce for it on the maxim omnia praesumuntur rite esse acta (everything is presumed to be okay which looks okay). But the maxim only applies with force where the Will is entirely regular in form and no suspicion attaches to the Will. But where suspicion attaches or the Will cannot be said to be ex facie regular or where the testator suffers from some disability such as deafness, blindness or illiteracy the maxim does not apply with same force.[16]

The burden of proof of the genuineness and authenticity of a Will lies on the party propounding it. Thus, where there is a dispute as to a Will, the person who propounds it must clearly show by evidence that prima facie everything is in order. Having done that, the burden is then cast upon the party who attacked the Will to substantiate by evidence the allegation he/she has made. The decision will ultimately depend upon the court having given due regard to the shifting burden of proof.[17]

EXTRINSIC PROOF

Clear evidence with capacity of the mind of a testator may be proffered to show that he/she had a sound mind. This evidence may be documentary or oral. Such evidence includes;

  1. Corroborated evidence of an attesting witness.[18]
  2. Medical evidence by a medical doctor who examined the testator. In Adebayo v Adebayo,[19] the testimony of the medical doctor of the testator was helpful to save the Will; although in Okelola v Boyle,[20] this was held to be insufficient to validate the Will. The quality of the evidence is what matters not simply that it was made by medical doctors.
  3. Evidence that the Will was written by the testator or the instructions were written by him.[21]

BLIND PERSONS CAPACITY

According to the case of Insitful v Christian,[22] a blind individual can make a will base on the following conditions;

  1. That the Will was read over to him.
  2. That he perfectly appeared to understand the contents before affixing his hands to it.
  3. That an attestation clause was inserted to the Will as evidence that the Will was read to him (it is referred to as a blind person’s jurat).

REQUIREMENTS FOR A VALID WILL

  1. The Will must be in writing.
  2. The Will must be signed by the testator.
  3. The signature of the testator must be acknowledged by him in the presence of at least two witnesses who must be present at the same time.[23]

PROOF OF DUE EXECUTION OF A WILL

  • The will must have the name of the testator.
  • It is properly witnessed by two witnesses; and
  • It is signed by the testator and dated.[24]
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WITNESSES AS BENEFICIARIES IN A WILL

The general rule is that a beneficiary to a Will and his/her spouse cannot take the gift made to them under a Will if either of them is a witness to the will. Thus, any gift made to such person will be utterly void. Also, the disqualification of gifts to the beneficiary-witness extends to his/her spouse, that is, the spouse of a witness to a Will cannot take any benefit under the Will.[25]

EXCEPTIONS TO THE ABOVE RULE

  1. Wills that do not require witnesses such as soldiers in actual military service.
  2. Where the beneficiary marries a witness after executing the Will.
  3. Where the gift in the Will is confirmed by another Will or codicil which is not attested to by the beneficiary.
  4. Where the person present merely signs that he agrees with the contents of the Will but not as a witness.
  5. Where the gifts are given to persons in their capacity as trustees and not as beneficiaries.[26] 

CONCLUSION

It is very important that we prepare for the inevitable by making adequate steps to make a will. The reason for this is to protect the interest of loved ones and ensure that one’s assets are properly managed by the executors to one’s Will. Although, one can write his will himself but it is advisable to employ the services of a lawyer for proper assistance. According to Joseph H. Choate, ‘you cannot live without a lawyer and you certainly can’t die without them’.

[1] Kwentoh v Kwentoh (2010) 5 NWLR (Pt 1188) 543 referred to] (p. 528, paras. E-F)
[2] Asika v Atunaya (2013) 14 NWLR (Pt 1375) 510 S.C.
[3] Y.Y. Dadem ‘Property Law Practice in Nigeria’ (3rd Edition): Jos University Press Limited, Jos Plateau 2015.
[4] Okelola v Boyle [1998] 2 NWLR Pt 539, p 556
[5] Ibid. p 282
[6] Sawyer, C., Op. Cit. at p. 123
[7] Bankole v Tapo(1961) 1 All NLR 140
[8] Idehen v Idehen (1991) 7 SCJN Pt II p. 196
[9] Mills v Anderson (1984) Q.B. 704
[10] Section 7 Wills Act 1837
[11] Section 3 Wills Law of Lagos State
[12] Okelola v Boyle [1998] 2 NWLR Pt 539, p 533
[13] (1870) LR5, QB 544
[14] Parker v Felgate (1883) 8 PD 73
[15] Singh v Amirchand (1948) 1 All ER P 152.
[16] Okelola v Boyle, supra.
[17] Johnson v Maja (1951) 13 WACA 290
[18] Goods of Grandon (1901) 84 L.T. 330
[19] (1971) ALL NLR p. 155
[20] (1998) 2 NWLR pt 539, 219
[21] Re Walker [1901] 1 Ch 879 at 885
[22] 13 WACA 345
[23] Section 9 Wills Act 1837; Section 4 Wills Law of Lagos State.
[24] Ize-Iyamu v Alonge (2007) All FWLR Pt 371
[25] Section 15 Wills Act 1837; Section 8 Wills Law of Lagos State
[26] Y. Y. Dadem Op. Cit. at p. 303

Otomiewo Edore E is a Legal Practitioner working with Prime Solicitors, a law firm based in Ibadan, Oyo State.


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