Writing a will in Nigeria involves key requirements and consideration of various laws governing the administration of the estate of a deceased person. The person writing a will is generally known as a testator. A will gives the testator the opportunity to have some control over his estate even after his demise, secure the interest of his loved ones, express his wishes, prevent future disputes amongst his successors, and displace the issues that may arise from his or her intestacy.
The laws governing a will in Nigeria include the Wills Act; the wills laws of various states; the Administration of Estate Laws of the various states and various judicial decisions.
WHAT IS A WILL?
A will is a testamentary document or legal document made by a person to express his/her wishes to be carried out upon his or her death. For a will to be valid, it must be made in accordance with the law.
CONDITIONS & REQUIREMENTS OF A VALID WILL IN NIGERIA
To make a valid will in Nigeria there are certain conditions and requirements that must be met. These conditions and requirements will be summarily discussed below:
- Age and mental capacity: The testator must be at least 18 years of age and must not be of unsound mind and must not be seen to have written the will under any form of duress, or undue influence, and must not be mistaken as to the content of the will. At the time of making the will, the testator must have the requisite memory and understanding. He must understand that he is giving his property to one or more beneficiaries, he must understand or recollect the extent of his properties, and he must understand the nature and extent of the claim upon him both of those whom he is including in his will and those he is excluding. In the case of Okelola v. Boyle (1959) 3 ERLR 40, the plaintiff, a cousin of the testator had challenged the will on the ground that at the date of the will, the testator was ill and could not speak, the testator suffered from stroke and paralysis for two years till he died in 1977, before his death he was discharged in bad shape February 1976 and purportedly made a will five days after. There was medical evidence indicating that a stroke on the right side of the testator could affect his brain. The court found that the co-executor named in the will was a non-existent person whose name resembled that of the plaintiff who lived with the testator in his house. The Court held that the state of affairs showed clearly that the testator could not have known about the provision relating to the non-existent executor. The court held that the will is invalid.
- Writing: The will must be either handwritten or printed. For the sake of legibility, it is preferable for the will to be printed. A valid will cannot be in oral form, it must be written and duly signed.
- Execution: A valid will must be duly executed by the Testator. He must append his mark or signature at the end of the will or on an apparent place on the face of the will. He may also direct another person to sign on his behalf. However, such a person must sign in his presence. The execution must be done in the presence of at least witnesses present at the same time.
- Attestation: Two witnesses must also acknowledge the signature of the testator in a valid will. This may be done by appending their mark or signature at the end of the will. The attestation must be done in the presence of the testator.
- Lodgment at Registry: A valid will must be lodged or kept at the probate registry of a state high court. The purpose of lodgment is to remove all forms of doubt pertaining to the authenticity of a will. The probate registry is not the only place a will can be kept, it can also be kept at the office of a solicitor to the Testator, but it must be taken to the probate registry of the high court upon the demise of the Testator.
- Witnesses must not be part of beneficiaries: A minimum of two witnesses are required for writing a will. The witnesses must not be part of the beneficiaries. There are few exemptions permitted to this rule, which include if the witness is a spouse, and the asset bequeathed to her is a matrimonial asset or joint asset.
- An executor must be an adult and can be a beneficiary: For a will to be valid, a minimum of two executors are required. Both executors must be up to 18 years old. They can also be part of the beneficiaries listed in the will too
CONTENTS OF A WILL
The following should be contained in a will:
- Details of the testator: The name and address of the author of the will must be contained in the will.
- Details of the executors: The names and addresses of at least two executors. The executors are the persons that will oversee ensuring that the dispositions in the will are carried out in line with the wishes of the testator.
- List of the assets: The list of the properties of the testator must also be mentioned in the will. These could include but are not limited to real estate, bank accounts, pension funds, jewelry, cars, and shares.
- Details of the beneficiaries and distribution of the assets: The name of the persons to inherit or benefit from the will and the assets to be given to them. It should also contain the mode of distribution, the extent or quantity of the assets to be given to each beneficiary. Whether the assets are to be shared amongst the beneficiaries equally or held jointly.
- Details of the witnesses: The names, addresses, and occupations of at least two witnesses.
Finally, the benefits of writing a will are numerous and it gives the testator the opportunity to express his or her wishes and protect his successors and ensure that his estate is properly managed after his or her death.