Creating a valid will is essential for ensuring that an individual’s wishes regarding the distribution of their assets are honored after their death. In Nigeria, the legal requirements for a valid will are governed by the Wills Act of 1837, the Wills Law of various states, and common law principles. Understanding these core elements helps ensure that a will is legally enforceable and reflects the testator’s intentions accurately.
REASON FOR WRITING A WILL.
- It excludes or limits the application of customary rules of inheritance.
- A testator can appoint trusted persons to manage his estate.
- A valid will confers authority on the executors to act immediately following the death of the testator.
- It ensures a positive display of the wishes of the testator.
- It is easier to obtain probate because a grant of letter of administration involves additional expenses of bonds and sureties.
- It gives the Testator peace of mind and a sense of fulfillment.
- The testator gives special directives as to the disposition of his property.
- The testator may give additional directives as to his burial.
- It enables the testator to decide who should inherit any property in his
estate.
CORE ELEMENTS OF A VALID WILL.
1. Legal Capacity
- Age and Mental Competence: The testator must have the legal capacity to create a will. In Nigeria, this generally means the individual must be an adult (In Lagos the legal age for writing a will is 18 years[i] or 21 years of age in States under the Wills Act[ii]). The exception to this is a privileged Will[iii] allowed to be made by members of the Military who are below the age limit of adulthood and are as follows;
a. Soldiers in actual military service (at war)
b. Sea Men at sea
c. Mariners at sea
d. Crew of commercial airlines in the Air.
- Mental Competence: The testator must possess the ability to understand the implications of creating a will, as illustrated in the court’s ruling in Okelola v. Boyle[iv]. This involves comprehending the extent of their assets and the obligations they wish to uphold. The requirement for a sound mind dictates that the testator must comprehend the act of making a will, the nature and scope of their property, and the obligations they intend to fulfill. This ensures that the testator’s decisions are made with clarity, rationality, and voluntary consent. The court in some cases also applies the Banks v. Goodfellow Test[v] where the court established the test for testamentary capacity, stating that a person making a will must:
- Understand the nature and effect of making a will
- Comprehend the extent of the property they are disposing of
- Be aware of those who might have a claim to their property (the moral claims of potential beneficiaries)
2. Intention:
- Testamentary Intent: The testator must have the intention to create a will. The will must reflect the deliberate and final wishes regarding the distribution of their estate. The intention must be clear and unambiguous, and the will should not be a result of any coercion, undue influence, or fraud, as portrayed in the court’s decision in Obianwu v. Obianwu[vi] and Asika v. Atuanya[vii].
- Voluntariness: The will must be made voluntarily. The testator must not be unduly influenced. The will must be truly his. He must have knowledge of and approve of every part of the will as duress and undue influence will render the will made invalid. The testator’s free will and intention to make a will must be evident.
3. Proper Form[viii]
Must be in writing: A will must be in writing. No particular form of writing is required; therefore, it may be typed, printed, or even handwritten. The language must not only be English. It can be in any language.[ix]
Signatures[x]: The will must be signed by the testator or by someone else in the testator’s presence and at their direction. The testator’s signature must be witnessed by at least two competent witnesses, who must also sign the document in the presence of the testator and each other.
Witnesses[xi]: Witnesses must be credible, competent, and not beneficiaries of the will. Their role is to attest that the testator signed the will voluntarily and with full knowledge of its contents.
4. Clear Beneficiaries and Distribution
- Beneficiaries / Distribution: The will must clearly identify the beneficiaries who will receive the testator’s assets. Ambiguity in identifying beneficiaries can lead to disputes and potentially render parts of the will invalid. The will should specify how the testator’s assets are to be distributed among the beneficiaries.
- Clarity: Ensuring that the terms of the will are clear and precise helps prevent misinterpretation and disputes among beneficiaries.
5. Revocation and Alteration
- Revocation Clauses: A valid will should include a revocation clause that cancels any previous wills or codicils. This ensures that only the most recent will is recognized as the testator’s final wish.
- Alterations: Any changes to a will must comply with the same formal requirements as the original document. Alterations should be signed and witnessed to avoid challenges to their validity.
- Updating the Will: Regularly updating the will to reflect changes in the testator’s circumstances and intentions is crucial for maintaining its validity and relevance. This is because property acquired by the testator after making the will which are not included therein will fall into partial intestacy after his death thereby requiring a grant of Letter of Administration.
6. Compliance with Legal Requirements
- Jurisdictional Compliance: The will must comply with the legal requirements of the jurisdiction in which it is executed. Different states in Nigeria may have specific rules regarding the creation and execution of wills. This is why the Wills Act has now been domesticated as the Wills Law of the respective states.
- Legal Advice: Consulting with a legal professional when drafting a will can help ensure that all legal requirements are met, reducing the likelihood of disputes or challenges after the testator’s death.
CONCLUSION
Understanding the core elements of a valid will in Nigeria is crucial for ensuring that an individual’s final wishes are honored and legally enforceable. Meeting the requirements of legal capacity, intention, proper form, clear beneficiaries and distribution, revocation and alteration, and compliance with legal standards ensures that a will effectively serves its purpose. Seeking legal advice when drafting a will is highly recommended to navigate the complexities of will-making and to ensure that the document stands up to scrutiny and fulfills the testator’s intentions.
[i] section 3 Wills Law, Lagos
[ii] section 7 Wills Act
[iii] Section 11 Wills Act; Section 6 Wills Law Lagos.
[iv] (1998) JELR 45581 (SC)////
[v] Banks v. Goodfellow (1870) LR 5 QB 549
[vi] [2017] LPELR-42676 (CA)
[vii] (2013) 14 NWLR (pt. 1375) 510 at 528.
[viii] S. 9 Wills Act, S. 4. Wills Law Lagos
[ix] Whiting v. turner (1877) 13 Ch. D. 660
[x] Wintle v. Nye (1959) 1 All ER 552
[xi] Wintle v. Nye (1959) 1 All ER 552
Written by Maureen Esegi and Elizabeth Olalekan for The Trusted Advisors
Email us: info@cms.trustedadvisorslaw.com
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