Jun 28, 2017

Overview Of Wills And The Necesssary Requirements Under Nigerian Law | Motunrayo Olaleye

The aim of this Article is to give a basic, brief and easy to read explanation of the fundamental requirements that are must know for every person with respect to Wills. This Article also intends to correct the notion that Wills are unnecessary or trivial and gives a clear suggestion on the significance of writing and keeping a Will.

A Will is defined as “a document by which a person (called the testator) appoints executors to administer his estate (his assets and properties) after his death, and directs the manner in which it is to be distributed to the beneficiaries (the people who are to benefit from the Will, such as family and friends).

An executor is the person appointed or nominated by the maker of a Will to administer or manage his Estate after his death. He is responsible for ensuring that any debts and creditors that the deceased have are paid off and that any remaining money or property is distributed according to the wishes of the deceased.

Every Will must have certain characteristics for it to be valid. If a Will is not valid, it will not be legally binding after the death of the maker of the Will (Testator). The following are some of the characteristics of a Will:
It must be made voluntarily
The testator must be of  sound mind
It must name the beneficiary or beneficiaries
It must be in the presence of witnesses
It must identify the property.
There are different types of Will, such as:
Oral Will: This is a Will made orally before two or more credible witness.

Mutual Will – This is where two or more persons execute the same Will, conferring mutual benefit or reciprocal benefits on each other. It is common between husband and wife. In this, none of the testators can revoke or amend without the consent of the other.

Prenuptial Will – This is a Will made by any of the spouses before marriage
Conditional Will – This is a Will that is executed by a testator and made subject to a condition.

There are many advantages of making a Will. It is important and a smart choice to make a Will so that the maker of the Will can protect his family, relatives, friends and any other person he may wish to inherit his assets.

In our society, some people get upset when their spouses ask if they have a Will. However, there is nothing to get upset about and it does not mean your spouse is trying to kill you. In fact, it is a way to protect your wife and children from suffering if the unexpected happens.

 It is merely superstitious and unnecessary to think that making a Will means you will die soon. That is not true. Many people have Wills and still live very long.  

Some other advantages of making a Will are:
·        The testator will be able to order his affairs before his death
·        The testator will be able to share his assets and properties amongst his family and friends in the way he desires
·        The testator’s property will not be shared under customary law since he has already decided how he wants it to be shared
·        The testator has the benefit of appointing people he trusts as his executors, and they have the duty to carry out his wish.
·        Trusted persons can be appointed as guardians of testator’s infants (young children).
·        It gives the testator the opportunity of showing generosity to other people e.g.  donation for charitable purposes
·        The testator is given the opportunity to give his funeral directives.

Every person of requisite statutory age (above the age of 18), with a sound disposing mind and memory can make a Will notwithstanding his tribe, religion, or physical status. Thus, a blind or disabled person can also make a Will.

It has been stated above that every person can make a Will, however such a person must have testamentary capacity. Testamentary capacity means legal capacity to make a Will. The law requires that a testator must have a sound disposing mind both at the time of giving instructions and execution of the Will. The purport of this is to ensure that the Will was made voluntarily and without undue influence. The criteria for deciding that a testator has testamentary capacity are as follows:

·        The testator must understand the nature of the act that he is making his will and its effect.

·        He must understand and recollect the extent of the property of which he is disposing.

·        He must understand and appreciate the nature and extent of the claims upon him by both of those whom he is including from his Will.

·        The manner in which the property is distributed must be rational that no disorder of the mind has poisoned his affection or perverted the exercise of his will.

For a Will to be valid, it must be duly executed. Therefore, the following conditions must be met:

·        It must be in writing;
·        It must be signed by the testator or his representative, and dated;
·        The signature of the testator must be witnessed by at least two witnesses;
·        The witnesses must attest and subscribe the Will in the presence of the testator
Can you rewrite your Will? The answer is yes.  A will can  be revoked or amended by the maker during his life time as many times as he wishes. Thus, the last Will and Testament is the one that is made by the Testator before his death and the last will revokes all previous wills. Where the Testator just intends to add some things, correct a clerical error or replace or appoint new executors he might just prepare an addendum. This is called a codicil.

Anybody can be a witness to a Will. However, it is advisable that beneficiary of a Will is not a witness to the Will. This is because a witness who benefits under a Will loses any property or benefit that he is given by the maker of the Will, and this is irrespective of if the Testator is your spouse.

However, in cases where there are at least three (3) witnesses to the Will, the beneficiary can still keep his gift if the Court discountenances the attestation of the beneficiary so that there will be at least two (2) witnesses to validate the Will.

A Will can be written by the Testator himself. It is however good to consult a lawyer who is skillful in the art of writing a Will so that it conforms with the requirements of a valid Will.

Digital assets can be defined as digitally stored content or an online account owned by an individual. (www.thedigitalbeyond.com) It can also be referred to as something that has value and can be owned but has no physical presence. Digital assets include but are not limited to documents, websites, books, media, designs, digital currency, data and art. (simplicable.com)

It is needless to say that we are at a time where many people have turned small businesses to global businesses with the help of the Internet, mobile marketing, telecommuting, smart phones and social media.

It is therefore apt  for a Testator to consider how these tools may be managed in the event of his demise. 

After a Will has been written, it can be kept in the custody of the lawyer, in the house of the testator, bank vault or probate registry.

The best option is for it to be kept at a probate registry which is located in every state’s High Court premises. It is the safest place for the Will and makes it easier to prove. After the death of the testator, the family members can approach the probate registry after 7 days with a copy of the death certificate.

Subsequently, the probate registrar contacts all beneficiaries and sets a date for the reading of the Will. On that day, the probate registrar breaks the seal of the Will and reads out its contents.

Probate is the legal process whereby a will is proved in a Court and accepted as a valid document that is the last true testament of the deceased. (en.m.wikipedia.org).
The process of obtaining probate is the first step in the adminstration of the estate of a deceased and can be done by the Exceutors of the Estate. It is however usually a cumbersome and tasking prodedure for persons who are unfamiliar with the process and it is advisable to employ the services of a Legal Practitioner.

It is imperative that people embrace the idea of writing a Will once adulthood is attained. Furthermore, it is also pertinent to modify the Will when more assets are attained to avoid excluding the additional assets from the Will.

If you put your house in order, your dependants will not be left to suffer if the inevitable happens.

 By- Motunrayo Olaleye
 Legal Counsel at B. Ayorinde & Co.

Photo Credit - www.davidfreedman.ca