HAPPY INDEPENDENCE DAY!!!
Nigeria is 56 years today the 1st day of October 2016, and i want to join us in celebrating the anniversary of our independence.
A day like this so many Nigerians will celebrate it in various ways, which include watching television; partying; recreational activities; engaging with social media, sleeping and resting, visitation etc.
In my mind I think today is a good day to reflect on your existence and the need to write your WILL. I have taken time in this article to refresh our memories and educate us on the need to have a WILL.
A Will is an instrument of conveyance. It is a legal document by which a person (the testator), expresses his or her wishes as to how his or her property is to be distributed at death, and names one or more persons (the executor), to manage the estate until it’s final distribution. A Will is like an umbrella, it covers all kinds of property, all imaginable and unimaginable assets such as copyright, patent, right to trade mark, movable and immovable property.
The capacity for a person to make a valid Will is governed by a system. Under this system, capacity in respect of movables is governed by the LEX DOMICILII of the testator at the time the will is made while the capacity to make Wills disposing immovables is governed by the LEX SITUS. But for the purpose of the article, our area of concentration will be on the LEX SITUS.
It is however very necessary to explain what LEX SITUS means. The term LEX SITUS means the law in force in the area where the property is situated. In other words, when the LEX SITUS Conflict of Law Rule is applied, the law governing the particular location the property is applied. The said property is then subjected to the laws of the place within which it is situated.
One of the most deeply-rooted principles of the received English conflict of law rule is that all questions relating to immovable are governed by the LEX SITUS. The LEX SITUS determines the various forms of capacity for the disposition or acquisition of immovable, the formal requirements for conveyance of immovable, and matters of material validity of a disposition of interest in land. These include questions like: What estate can be legally created? Is the testator bound to leave a fixed part of the estate to his wife or family, how immovable it may be distributed, and so on.
It should be noted that there is no general law regarding the succession of property in Nigeria. There are different laws governing wills of each state in Nigeria. For example:
- The Wills Act 1837, the Will Amendment Act 1852.These are English statues of general application in England by the 1st January 1990 and are therefore applicable in those States of Federation that have not enacted their own Wills Laws.
- There is also the general principle of Common law and Equity.
- High Court Rule and Case Law.
- There are also Wills Law enacted by various states for instance, the Lagos State Wills Law Cap. W2, Laws of Lagos State 2004. Oyo, Plateau, Kwara, Kaduna, Adamawa, Borno, and Bauchi have also enacted their Wills Laws. Though, these laws are noticeably similar.
There are however formalities to writing a Will in Nigeria. Some of the formalities of making a valid Will are provided in Section 9 of the Wills Act of 1837. But for the purpose of this article, the Wills Law of Lagos State will be the general focus. The provisions of S.4 of the Wills Law of Lagos State Cap W2 (2004)2 (hereinafter called Wills Law) provide thus:
No Will Shall Be Valid Unless:
- It shall be in writing;
- It is signed by the Testator or signed in his presence and by his direction, in such place of the Will so that it is apparent on the face of the Will that the Testator intended to give effect to the signature of the writing signed as his Will;
- The Testator makes or acknowledges the signature in the presence of at least 2 witnesses present at the same time;
- The witnesses attest and subscribe the Will in the presence of the Testator but no form of attestation or publication shall be required;
- No signature under this section or under any other provision of this law shall be operative to give effect to any disposition or direction which is underneath or follows, nor shall it give effect to any disposition or direction inserted after the signature have been made.
The will must be voluntarily made and executed by the Testator. This means that the Will must have been freely made without any form of influence whatsoever by any person on the Testator that affects the Testator’s mind in the making of the will. Persuasion is allowed in law but should not amount to pressure; pressure of whatever character if so exerted as to overpower the volition of the Testator without convincing his judgment will amount to undue influence, which will invalidate the Will;
- The Will must be made by a Testator with testamentary capacity for it to be valid. Testamentary capacity means the capacity and ability to make a valid Will and it involves two elements: Age and Sound mind.
Section 3 of the Wills Law provides that the minimum age at which a person can make a will is 18 years. Certain persons are however exempted from this age requirement, i.e. soldiers in actual military service and mariners or seaman at sea who can prepare valid Wills though under the age of 18 years.
SOUND DISPOSING MIND: The Testator must possess the mental capacity or sound disposing mind to make a Will. This simply means that the Testator must not be suffering from any disease of the mind or of the body capable of affecting the mind of the Testator in the making of the will. Where it is established that the Testator was not of sound mind at the time of making the Will, the Will will be invalidated.
In the case of Banks v. Goodfellow, the court gave a standard for ascertaining if the testator is of sound mind.
- The testator shall understand the nature of the acts of making a Will and its effects. He must understand that he is by Will giving out and not selling his property;
- The testator should understand the extent of the property of which he is disposing;
- The testator shall be able to comprehend and appreciate the claims to which he ought to have effect (the person whom by will he is excluding from all participation) that is, he must recollect the persons who are the objects of his bounty; and
- The manner in which the property is to be distributed between them.
In order to make a valid Will, the Testator must have the intention to make a Will and must intend that his wishes should take effect on his death. The Testator must know of and approve of the contents of his Will. If the contents of the Will are not the wishes of the Testator but of another person then it is invalid. Section 8 of the Wills Law, a Will must not be witnessed by a beneficiary of the Will or his spouse unless the gift to the beneficiary is a charge or direction for payment of debt. In consequence, where a person or his spouse is a beneficiary under a Will, such a person or the spouse must not witness the Will. If that person or spouse witnesses the Will, the gift to him fails. Nonetheless, the Will remains valid.
WHY DO I NEED A WILL?
This is the question most people ask. Writing a Will goes beyond making easier for family and friends to sort out a deceased testators property. Below are some valuable reasons on why you need a Will that I have gathered from my years of practice.
- Writing a will allows the testator choose people he wants as his personal representatives, executors and trustees. But if he dies intestate (without a Will) administrators will be appointed by the court or family members in which case he might not have agreed to.
- It is cheaper to administer the estate of a deceased who died leaving a Will than a deceased who dies intestate. This is because a grant of administration involves the additional expenses of a bond and sureties.
- A testator may by his Will appoint a guardian for his children that he trust.
- A testator may disinherit any person according to his desires subject to any rule he is to be subjected to. But if he dies intestate, his property is shared by native laws and custom even to those he might not want to inherit them.
- Writing a will is especially important if a testator have children or other family who depend on you financially, it allow a testator leave them with something to survive with outside the family.
- A deceased person may choose to leave a gift for people outside his relation or for charity in his Will. But this might not be possible if such deceased person did not have a Will.
- A will reduces the incidence of conflict which arises when sharing a deceased person’s estate among family members.
Most people can write a simple Will without a lawyer, but in some situations, writing of a Will requires the help of a lawyer. In my years of practice, majority of the conflict that arise during distribution of a deceased property is usually because it was not professionally done by a lawyer. Creating a formal, typed document is less likely to cause trouble after the death of the testator.
If you have not written your Will, think of doing so.