It was Steve job who said that; “death is the destination we all share, no one has ever escaped it, and be that as it should be, because death is very likely the best single invention of life”.
Based on the above statement and in view of the uncertainty and vagaries of life that death is a certainty that usually comes in an uncertain or unexpected time. The making of will should be prioritized by every adult Nigerian irrespective of their financial status, because just as death is inevitable the making of will should be non-negotiable for every Nigerian who has beneficiaries or dependent. A will simply put is the intentions and wishes of a person to be carried out after their death.
It should be noted that most Nigerians have this notion that whenever a person is preparing to make his Will, the person is either preparing to die or is at the stage of death. This notion is predicted on nothing else, rather than fibs and lack of proper orientation. I personally had this experience, when some years back I had a conversation with an uncle of mine and I implored him to prepare a Will and suddenly he exclaimed and said “Sam do you want me to die now or are you preparing to kill me?” it was not until I proceeded to lecture him on the advantages and importance of having a Will at that stage of his life that he understood that making a Will does not mean that a person is preparing to die, rather it means that the person is ensuring that his/her loved ones are adequately protected and provided for, and also gaining the peace of mind, knowing that one’s worth of possessions will end up in the right hands.
The importance of making a will can never be overemphasized and same will be discussed below for a proper understanding;
To avoid the problem of intestate: a person is said to die intestate, where no will is made. What this means is that an individual’s estate (property) will be settled based on the administration of estate laws of the state of domicile of the individuals at the time of death. These laws determine who inherits what, and not the individuals.
To have the choice of appointing personal representatives (executors) to administer his estate. By this, he can choose persons whom he trust and who have his interest to carry out his wishes after his death. This contrast with a situation where he dies without a will and the court may appoint administrators of his estate without the deceased having any choice in their appointment.
A will saves time and money: this is because the personal representative derives their authority from the will and begin to act immediately. Where a person dies without making a will, his administrator will have to apply and wait for letters of administration to be issued before they can begin to act. The grant of letters of administration are usually very expensive and it takes a lot of time; from the period of application to obtaining of the letters of administration takes an average of nine (9) months depending on the state the application is been made. It will be important to make a simple analogy here; Mr A is married with four children, the children are between the ages of 10-20yrs, who are all dependent on Mr A, for their livelihood, and Mr A suddenly dies without making a will. However, Mr A has about three(3) million naira in his bank account and some landed properties. The money in Mr A’s bank account cannot be immediately obtained by Mr A’s children or his dependent, neither can the property be sold except of course a letter of administration is first sought and obtained and the letters of administration is usually expensive as a certain percentage will be deducted from the deceased estate.
The testator can select and appoint guardians to look after his children if they are still minors. Finally, it gives peace of mind to the testator because he has wound up his affairs and knows that his wishes will be carried after he is no more.
WHO CAN MAKE A WILL? Every individual can, there are two conditions to be satisfied before an individual can be qualified to make a will. Firstly the individual must be of the legal age approved by the relevant laws of the state where the individual is domicile.
In Lagos State (section 3 of the wills law of Lagos State), Kaduna State, Oyo State and Abia State respectively all set the legal age at eighteen years; hence no will made by a person below the legal age shall be valid. Thus any individual who is above the age of eighteen is competent to make a will. Secondly, to qualify to make a will, an individual must have the required Mental Capacity to make a will. It is important for an individual who wants to make a will to be of sound mind devoid of any infirmity of the mind or Lunacy, failure to have the required mental capacity at the time of making the will may lead to the Court declaring the will Invalid. The Supreme court in Okelola V Boyle (1998) 2 NWLR part 539 9age 533 per Onu JSC states that No person is capable of making a will who is not of sound mind, memory and Understanding. The testator’s mind must be sound to be capable of forming the testamentary intentions in the Will, his memory must be sound to recall the several persons who ought to be considered as his possible beneficiaries.
WHAT ARE THE REQUIREMENTS FOR A VALID WILL- For a will to be valid, it must comply with the following conditions;
It must be in writing
The will must be signed by the testators and must be attested (witnessed) and signed by witnesses.
The will must also have been made by a person who knew and approved of its content and who was acting on their own free win.
Please note that there are some exception for people who are members of the armed forces or Sailors of sea, specifically they do not have to be 18 years of age, and the Will in certain circumstances do not have to be in writing.
It should also be pointed out that witnesses cannot be beneficiaries under the Will, nor can the spouse or partner of a witness.
REVOCATION OF A WILL
A will is Revocable during the Lifetime of the testator, and it does not matter if the will declares itself to be irrevocable. Revocation of a Will has the effect of annulling the content of the Will, so that it never takes the effect after the death of the maker. The four ways in which a Will is revoked are; by marriage, by making another will, by writing to revoke and by destruction.
CAN A WILL BE AMMENDED AFTER IT IS MADE? Yes, This can be done by either making a new will or by adding a codicil (An amendment) to the will.
RESTRICTION ON TESTAMENTARY FREEDOM
This deals with factors that can restrict the right of an individual to freely dispose of his property. Usually, a person should have the right to make a will and give his properties to any person he desires and wishes, and may also deprive any of his blood relatives of his properties without any question being asked. However, over time this unfettered right to freely dispose of property by an individual has been restricted by Law. Some of the restrictions are as follows;
(a) Reasonable financial Provision to Dependent: – Section 2 of the wills Law of Lagos State provides that a person must make reasonable financial provisions for his dependent.
(b) Customary Law Restriction: Section 1 of the wills Law of Lagos State provides that the provisions of this Law shall not apply to any property which the testator had no power to dispose of by will or otherwise under customary Law to which he was subject. Similar provisions are found in the wills Law of other states. For instance in the case of Idehen V Idehen (1991) 7 SCN (Pt 11) 196 the Supreme court held that the testator can not give his property (The Igiogbe) to anyone else other than his eldest son because going by the Benin native Law and customs the Igiogbe (which is the place of residence of the diseased father) belongs to his eldest surviving son.
(c) Islamic Law Restriction: Under Islamic Law and custom, an individual could not dispose more than one-third of his property to persons who are not his heirs and that the wills ACT cannot over lime Islamic Law of Inheritance.
Samuel okolie is a Lagos-based legal practitioner. 08066756987, email@example.com