The idea or thought of making a will to an average Nigerian is often interpreted as superstitious beliefs of wishing death on the individual, it is one largely frowned upon and not embraced by many, but in reality a WILL is as important as acquiring assets especially when one has a large family that may not easily agree on sharing after one’s demise. A will is likened to an insurance policy where you can ensure that the interest of your loved ones and life’s worth are protected, even after demise.
This aim of this write-up is to expose the reader to the importance of a will and the ingredients that must be present before a valid will can be birthed.
WHAT IS A WILL?
A will is a legal document written by a person (testator) that contains instructions of his or her wishes to be carried out after his/her death. This is an ordinary and simplified definition of a WILL. But a statutory definition of a will according to the Wills Act 1837 states that:
A will is a testamentary document voluntarily made and executed according to law by a testator of sound mind, where he disposes his properties (real or personal) to beneficiaries to take effect after his death.
BENEFITS OF WRITING A WILL
There are a plethora of reasons and benefits of writing a will. The first major benefit is that one can be assured while still alive that upon demise, the loved ones will be catered for as if one is still alive to provide for them. Second, writing a will allows someone to express his or her feelings and opinions with the will and thereby reduces friction among beneficiaries.
IMPORTANT TERMS IN WILL
Bearing in mind the aforesaid, we will briefly explain some important terms related to a will as follows:
- Testator—a testator is a man or in the case of a woman (testatrix) who wishes to dispose his/her assets to specific beneficiaries upon death, he/she must be with a sound mind.
- Beneficiary—a person who benefits from the asset or estate of a testator or is listed in the will of a testator.
- Executors— these are trusted individuals appointed by the testator to manage his assets and carry out his wishes after death.
- Testate— a situation where one dies leaving a valid will
- Interstate —- a situation where one dies without leaving a will, and in this case what tends to happen is that the estate of the deceased will be settled by the administration of estate law of his/her domicile before death.
Furthermore, not every individual can make a valid will; a minor and a person of unsound mind cannot write a will. The legal age of a person to write a will is 18years of age and above. Under the Wills Act, the legal age for making a will is 21 years.
HOW TO MAKE A VALID WILL
There are certain conditions that must be met in writing a valid will, these conditions are very important as a badly executed will is as good as a worthless piece of paper. A valid will has a binding force in law. Important factors must always be considered while writing a will:
- A valid will must be in writing. This condition cannot be overemphasised; it can be handwritten, typed and printed. It is a legal document with a binding force. And for it to be binding, the maker must put it into writing.
- As earlier stated, an individual of legal age can make a valid. He/she must be at least 18years of age, with sound mind meaning that he/she understands that a will is being made and is sane as at the time of making the will. A will must be made voluntarily without any external influence.
- The will must be signed by the testator or any person he chooses on his behalf who then must sign in his presence and by his directions.
- The testator must acknowledge his signature in presence of two (2) witnesses who must be present at the same time. Acknowledgement can be by word or conduct
- The witnesses must themselves sign the will in presence of the testator. It is important to note that a witness cannot be a beneficiary to a will, and any gift given to a witness will be null and void. Choosing people who are not beneficiary to the will as witnesses will prevent a conflict of interest and ensure confidentiality. Therefore, the testator’s spouse and children cannot attest to a will, since they are definitely going to be beneficiaries in it.
CONTENTS OF A VALID WILL
- The full name and address of the testator.
- The names and address of the executors who will be in charge of the testator’s assets and ensure that the wishes under the will are carried out.
- The full names and addresses of the beneficiaries in the will, and where the beneficiaries are minors, the particulars of the guardian appointed for them.
- A full list and particulars of the testator’s assets; all the assets of the testator both real and personal should be listed, and how he wants the assets shared among the beneficiaries.
- The names and addresses of witnesses to the will.
Another likely question to arise is that after making a will can it be changed? Yes, one can change his or her will by making a new one or using a CODICIL. A codicil is used to amend, change, rewrite or remove any information from a will.
It is imperative to say that making a will is very important and should be embraced by all, to protect the interest of loved ones and ensure one’s assets are properly managed. It is neither a curse nor a superstitious belief, as many believe but a means of protection and organisation. One can write his/her will himself or herself but it is advisable to employ the service of a lawyer for a proper guidance.
Written by Resolution Law Firm, Nigeria