VALIDITY OF A
WILL UNDER NIGERIA LAW
A Will is
defined as “a document by which a person (called the testator) appoints
executors to administer his estate after his death, and directs the manner in
which it is to be distributed to the beneficiaries he specifies” – Re
Barnett, Dawes v. Ixer (1908) 1 Ch. 402.
Until the death
of the testator, a Will is a mere declaration of intention. Thus, it could be changed as often as the
testator wishes. For that reason it is described as Ambulatory, meaning that
it roves, that is, moves, unfixed until the death of the testator when it
crystallizes into an instrument of disposition. A beneficiary under a Will
where the testator is still alive has a mere “Spes” or “Hope” and not any interest in the property
as the testator can always change his mind at any point in time. This character
distinguishes a Will from a conveyance or other dealings inter vivos in property,
which has immediate effect or has effect from a known date in the future.
Though, the essence of the
requirement of a Will to be in writing is to prevent fraud. It should be,
however, noted that for an oral Will to be valid under the customary law, it
must satisfy the following conditions –
1. It must be made
voluntarily;
2. The testator must
be of a sound mind – Banks v. Goodfellow (1870) LR 5 QB 459;
3. It must name the
beneficiary or beneficiaries - ;
4. It must be in the
presence of witnesses – Ayike v. Ibiduni (1959) 4 FSC 280;
5. It must identify
the property.
PERSONS THAT CAN MAKE A
WILL
Every person with a sound mind can make a Will. Section 3 of the Wills Act, 1837 provides thus –
“It shall be lawful for every person to devise, bequeath, all
properties or dispose of, by his Will executed in manner hereinafter required,
all real estate and all personal estate which he shall be entitled to, either
at law or in equity, at the time of his death, and which, if not so devised,
bequeathed or disposed of, would devolve upon the heir at law...”.
Thus,
persons of requisite statutory age, with a sound disposing mind and memory can
make a Will notwithstanding his tribe, religion, or physical status – Apatira
v. Akanke (1944) 17 NLR 149.
THE PRINCIPLE OF DUE EXECUTION OF A WILL
A Will requires
some formal as well as informal or intrinsic conditions to be valid. The formal
requirements are that the Will must be in Writing and must be duly executed.
Section 4 of the Evidence Act provides that a document [Will] shall not be deemed to have been
made by a person unless the document or the material part thereof was written
and signed or otherwise acknowledges its authenticity.
As long as it is
clear what the intention and wishes of the testator are, the court will not,
except in few cases, allow formalities to frustrate those intentions – Rolleston
v. Sinclair (1924) 2 IR 157. Presumption will
be made in favour of Wills which on their faces appear regular even where the
witnesses are unable to recollect the circumstances of the execution of the
Will.
The presumption
of due execution will apply depending on the circumstances of each case. Where
the Will appears ex facie to have
been duly executed, the presumption applies. If the form is irregular and
unusual, the presumption will not apply. In the case of In the Estate of Randle (Nelson
v. Akofiranmi) (1962) ANLR 130, the court applied the presumption of
due execution to admit the Will to probate, even though the testator only put
his thumb-impression and the witnesses signed above the thumb-impression. Since
the Will had an attestation clause, it was presumed as duly executed. The court
further held that the guiding principle should be a consideration of the “whole
circumstances of the case”.
EXCEPTIONS TO THE PRINCIPLE
Section 276(1) of the Armed Forces Act makes an exception to the general principles of due execution of
Wills.
Section 105 of the Act states
that a Will made by a person subject to service law shall be valid for
disposing of any money or personal property which is due or belongs to him at
his demise if it is in writing and signed or acknowledged by him in the
presence of, and in his presence attested by one witness, being an officer of
the forces or any government official.
This means that
under the Act, a Will made by a person does not require the general presence of
at least two witnesses, but only one witness, and the witness must be either an
officer of the armed forces or any government medical officer. However, such a
Will must satisfy the following conditions –
1.
The testator must have a sound
mind;
2.
The Will must be his act, the
exercise of his voluntariness;
3.
The Will must be in writing;
and
4.
The testator must sign or
acknowledge the Will.
TESTAMENTARY CAPACITY OF A TESTATOR
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.
Section 3 of the Wills Acts 1837 as
earlier stated gives freedom of testation to everybody. Testamentary capacity
of a person makes a person’s freedom of testation subject to any customary law
relating thereto to which a testator was subject in his life time. Thus, a
person’s right of testation was held by the Supreme Court to be limited by the
customary law relating to that class of property as it is provided by customary
law not to be devisable by will. The locus classicus are Lawal Osula v. Lawal Osula
(supra), Agindingbi v. Agindingbi (supra), etc.
These cases arose
from the Benin Customary law relating to the devolution of the property where a
testator lived and died called Igiogbe.
The testator’s first son is by customary law the rightful heir to the Igiogbe and a person cannot by his will
based on statutory freedom of testation devise the property to any other person
not being his first son. In
Egharevba v. Oruonghae (2001) 11 NWLR (pt
714) 318, the Court of Appeal sitting in Benin reiterated this
position. The section would also seem to limit the freedom of testation of a
person who practices the Moslem faith. Such a person’s testamentary freedom
especially in the States that have adopted the Sharia as part of the States’
Laws is limited by Islamic injunction with respect to devolution of the
property of a person of Moslem faith. The person’s freedom of testation is
limited to devising by Will not more than one-third (1/3) of his estate. The
remaining two-third (2/3) shall be divided amongst recognized beneficiaries in
a manner provided by the Sharia – Adesubokan v. Yinusa (supra).
Also, section
2 of the Wills Law of Lagos State which operates to protect the interest of
persons not favoured or disinherited by the testator but who have legal claims
on him e.g. his wife or wives, or husband, or children of the deceased. Such a
person can apply to the court for adequate provision on the ground that the
deceased did not make reasonable financial provision for the applicant. The
court in that case can intervene to ensure there is equity in the distribution.
This right is only exercisable within six (6) months of grant of probate
following which it becomes statute barred.
a.
Section 7 of the Wills Act, 1837 puts
the age at which a person acquires testamentary capacity at twenty one (21)
years. Section 7 provides that no
Will made by any person under the age of twenty one (21) shall be valid. However,
under section 6 of the Wills Law, Lagos,
Testamentary capacity in Lagos State is eighteen (18) years. Section 3(i)
of the Family Law Reform Act of England 1969 puts the age of Testamentary
Capacity of Wills made from 1st January 1970 at eighteen (18) years
also. The only exception to this rule are people who are allowed to make
privileged Wills by virtue of section 11
of the Wills Act, that is, a seaman or mariner at sea or Soldier in actual
Military Service in respect of his personal estate. Such a privileged testator
is also not restricted by the formalities of execution and witnessing laid down
in section 9 of the Wills Act.
b.
The testator must not be unduly
influenced by any other person. The will must be truly his. He must have knowledge of and approve every
part of it – Eyo v. Inyang (2001) 8 NWLR (pt 715) 304.
c.
There must also be a mental
state of the testator. A person is said to have mental capacity to make a Will
when he is corpus mentis, that is,
has a sound and disposing mind at the
time he gave instructions, and at the time he executed the Will – Adebajo
v. Adebajo (1971) 1 ANLR 599.
A person is said to
have mental capacity as laid down in Banks v. Goodfellow (supra), where
it was held that what constitutes a sound and disposing mind is a question of
fact that a person who can converse rationally and conduct his business is not
sufficient to prove mental capacity. The most prominent
issues of incapacity arise from unsound mind, senility, drunkenness and undue
influence. The propounder of a Will has to prove the testator’s mental capacity
where it is in issue.
EFFECT OF BEING A WITNESS
IN A WILL
Though anybody can be a witness, but there are grave consequences on
the witness or spouse of the witness especially as the gifts made in the Will
are concerned. It is however not advisable for a beneficiary to be a witness
because according to section 15 of the
Wills Act, the Will remains valid notwithstanding its attestation by a
beneficiary, the witness-beneficiary and the spouse of the witness-beneficiary,
and the spouse lose the benefit of any gift made to them. Thus, a witness who
benefits under a Will loses any property or benefit taken. The same rule
applies to the spouse of a witness (that is, a spouse at the time of attesting
the Will, and not one who marries a witness after attesting the Will). However,
a witness who benefits is not prevented from testifying to prove the execution
of such Will or its validity..
HOW A WILL CAN BE PROVED
(VALIDITY OF A WILL)
In Ize-Iyamu
v. Alonge (2007) All FWLR (Pt. 371) 1570 at 1587, the trial court held
that for a Will to be valid –
1.
It must be in writing;
2.
It must be signed by the
testator or his representative, and dated;
3.
The signature of the testator
must be witnessed by at least two witnesses;
4.
The witnesses must attest and
subscribe the Will in the presence of the testator; and
5.
The signature of the testator
shall be at the foot or end of the Will – section
4(1) of the Wills Law, Lagos State. Though this is no longer necessary as
the signature can be anywhere, as long as there is a signature and it is
apparent from the face of the Will that the testator intended by his signature
to give effect to the will – Wills Amendment Act 1852.
