How To Make A Will In Nigeria: Will is a testamentary deposition made by a testator himself during his lifetime, which dictates the wishes of the testator which shall be complied with and take effect upon his demise. A will is ambulatory in nature in the sense that it becomes operative after the death of the testator. A will can be revoked at any time during the lifetime of the testator.
Why Should One Make A Will?
A will is not only beneficial to the beneficiaries under the will but also to the testator. It empowers the testator to have an absolute say in respect of the disposition of his properties even after his death.
By making a will, the testator is exercising one of the incidents of ownership which is the right to freely alienate. Not just as regards the sharing of his properties, the testator also gets to dictate other of his personal wishes which he intends his objects to carry out after his demise.
This can include his funeral rites and any instruction he wants his objects to carry out. Utmost regard is always given to such wishes because it is seen as death wishes which are ultimately respected.
By making a will, the testator gets to secure his properties to the extent which he possesses and direct its inheritance towards the object of his bounties as he so wishes. Making a will gives the testator peace of mind and fulfillment.
It also sustains peaceful coexistence in the family which is usually disrupted by the struggle to inherit properties upon the death of a person.
Most importantly, by making a will, the testator deals away with the operation of his personal law or any existing law whatsoever in respect of the disposition of property, to the extent that the fundamental requirements of a will is complied with.
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Who Can Make A Will?
Any person can make a will; male, female, married women, single person, as long as the person is of sound mind at the time of making the will. An infant however, cannot make a valid will. In other words, infants lack the legal capacity to make a will. For the purposes of will, an infant is a person below 18 years.
An exception to the rule that infant cannot make a valid will is the making of privileged will. Privileged will is a will that does not need to comply with certain requirements as to form. Thus, an infant who is in military service can make a valid privileged will.
How To Make A Will
For a will to be valid, it must comply with a number of legal requirements. It is in discussing these legal requirements for the validity of a will that we shall highlight how a will is made. It is first, noteworthy that a will does not need to be in any particular format, as long as it is in conformity with the requirements for its validity.
Requirements for the validity of a will
1. The Requirement Of Writing: A will must be in writing in order to be valid. This requirement is backed up by section 9 of the Wills Act, 1837. There is no particularly prescribed format that the writing must be in.
Thus, it can be in any written format, be it handwritten, typed or howsoever written. It follows therefore that a statement or purported will made orally cannot qualify as a valid will and as such, it is of no effect.
The only exception to this requirement is an oral deposition made by a soldier in active military service, airmen or sailors, as provided in section 11 of the Wills Act.
It must however be shown that the oral deposition is not a mere promise but is intended to constitute proper disposition of the property. See in Re Stables.
2. Must be signed by the Testator: A will must be signed by the testator himself. See section 9 of the Wills Act. it can as well be signed by another person by the direction of the testator and in his presence thereof.
What constitutes a proper signature is any mark or thumbprint of the testator in a designated column. The position of the signature also is of utmost important. The signature must come after the provisions of the will, otherwise it may render the will improperly executed and as such, invalid. See in the Estate of Little.
Authorities submit that the purpose of this requirement is to circumvent the fraudulent act of someone adding something to the will after it has been executed. To execute a will simply means to sign the will in a manner required by law.
3. The testator must sign in the presence of at least two witnesses: This is a very fundamental requirement for the validity of a will. The law requires that the two witnesses must be present at the same time when the will is executed.
In the presence of not less than two witnesses extends to the fact that the witnesses should know the nature of what they are signing. The presence of at least two witnesses also goes to establish prima facie that the will was executed in the absence of undue influence.
4. Attestation by Witness: The witnesses are required to attest to the will. This is provided for in section 15 of the Wills Act. The attestation must be done in the presence of the testator, although the witnesses necessarily do not need to sign in the presence of each other.
All they need to do is to append their signatures in the given column. It is noteworthy that the witnesses must not be beneficiaries under the will. If any of the witnesses is a beneficiary under the will, it does not invalidate the will.
However, the gift made to him will be void. This falls back to the point that he cannot benefit from the will. This principle extends to the spouses of the witnesses.
Another vital requirement is that the testator must be of sound mind at the time of executing the will. It is immaterial that the testator becomes insane after executing the will, as long as it was made and executed in his sane moment.
The state of unsound mind must be such that places the testator in a position that becomes unable to understand what he is doing. In the case of Banks V Goodfellow, the testator was suffering from the delusion that he was being pursued by evil spirits.
It was established that this did not in any way impair his thought process as to the disposition of his property, even when his heir at law did not inherit under the will. The law at all times presumes that a will was made while the testator was of sound mind, until otherwise is established.
Another vitiating factor is the presence of undue influence. A testator must make his will spontaneously. Once there is evidence of undue influence exerted on the testator through the making and execution of the will, the will will be held to be invalid.
Thus, in the case of Moneypenny V Brown, the wife of the testator guided his hand by pressurizing him to sign the will while he was on the hospital bed. The will was held invalid on the ground of undue influence.
Also in Re Harden, a spiritualist medium exerted her influence on the testator. Under the will, she took substantial benefit of the testator’s property. The will was voided for undue influence. Where a testator intends to revoke his will, he can do so by way of codicil.
Codicil is an instrument that is used to modify, explain or revoke a will or some parts thereof. In the codicil, the testator can expressly revoke his previous will by stating expressly to that effect or impliedly when there is inconsistency with the former and the latter, and the latter prevails.
Wills can also be revoked by the act of the testator destroying the will with the intention to revoke it or render it inoperative. The subsequent marriage of the testator also revokes a will.
In drafting a will, clear and unambiguous languages must be used, for a will contains instructions by the testator which must be carried out in clear terms. The testator is also required to appoint an executor(s) which may be individual person(s) or trust corporation. The making of a will in Nigeria is flexible, as long as the validity requirements are complied with.
Edeh Samuel Chukwuemeka, ACMC, is a lawyer and a certified mediator/conciliator in Nigeria. He is also a developer with knowledge in various programming languages. Samuel is determined to leverage his skills in technology, SEO, and legal practice to revolutionize the legal profession worldwide by creating web and mobile applications that simplify legal research. Sam is also passionate about educating and providing valuable information to people.