INTRODUCTION
“Do you want me to die”?, that was the first question that came out from his mouth when I told him to draft a will. It was quite obvious from the conversation I had with this person, a lot of people do not want to hear the word “will”, as it sounds like a death sentence.
However, it is very important to note that one of the most important aspects of future planning is determining what will happen to one’s assets after they have passed away.
This article offers a thorough analysis of wills in Nigeria, including their significance, prerequisites, and preparation procedure.
WHAT IS A WILL?
A will, also known legally as a “testament”, is a legal declaration and confirmation of one’s intentions regarding the distribution of one’s estate/properties after one’s death, see the case of Okeke V Okeke [2000] 3 NWLR (Pt. 649) 506. It specifies who inherits your assets, who will manage your estate (executor), and can even include instructions for guardianship of minor children who are beneficiaries to the will.
WHY IS A WILL IMPORTANT?
Having a will offers several benefits:
a) It brings about control: Through a will, a person can decide who inherits your assets, ensuring one’s loved ones are provided for according to their wishes. Dawodu v. Isikalu & Ors. (2011) LPELR (CA).
b) It avoids intestacy: Dying without a will (intestate) means one’s investment is distributed according to pre-set legal rules, which may not align with ones preferences, and most times gets to be a big challenge allocating one’s properties.
c) It reduces family disputes: A clear will can prevent conflicts among family members regarding inheritance. Although some family members or relatives can cause a scene in regards to the validity of the will and allocations of such properties.
d) Protect of loved ones: A will can ensure the well-being of one’s spouse, children, and other dependents.
e) It brings about efficiency: A well-drafted will can streamline the probate process, saving time and costs for the beneficiaries.
REQUIREMENTS FOR A VALID WILL IN NIGERIA
For a will to be legally valid in Nigeria, it must meet certain requirements as outlined below, also see the case of Jonah & Anor v. Akpadiaha & Ors (2021) LPELR-55102(CA).
i. Testamentary Capacity: The person making the will (testator) must be of sound mind and have the mental capacity to understand the implications of their decisions. See Mabogunje V Adewunmi (2006) 11 NWLR Pt 991.
ii. Age of testator : The testator must generally be at least 18 years old, although exceptions may exist for minors in certain situations, such as military personnel on active duty who are below the statutory age.
iii. Will must be in writing: The will must be in writing, although it doesn’t need to follow a specific format.
iv. Will must be signed by testator: The testator must sign the will, or someone else may sign on their behalf in their presence and under their direction. The court, however, can make exceptions to signature under special circumstances, see Dan & Anor (2018) LPELR 44415 (CA)
v. Attestation by witnesses : The signature must be witnessed by two or more competent individuals who also sign the will in the presence of the testator.
vi. Will must be free from Undue Influence: The will must be made voluntarily, without any coercion or pressure from others.
TYPES OF WILL IN NIGERIA
While there are different types of wills, the most common in Nigeria is the formal will, which adheres to the requirements outlined above. Other types include:
a) Simple Will: The disposal of one’ possessions after one’s death is outlined in a simple will, sometimes referred to as a “testamentary will.” People with very simple estates and simple family situations can benefit from this kind of will. An executor, beneficiaries, and the distribution of one’s assets can all be specified in a basic will.
b) Conditional Will: A conditional will specifies the requirements that must be met before asset distribution can take place. For example, you could stipulate that a beneficiary will only get their inheritance if they reach a certain age or achieve a specific milestone. These conditions allow you to regulate the time and circumstances of asset distribution.
c) Joint Will: A joint will is written by two people, usually couples, who want to merge their estates and make united decisions on asset distribution. Joint wills can make the procedure easier for couples who have similar goals because they assure that the surviving partner inherits the full estate if the first person dies.
d) Mutual Will: A mutual will is similar to a joint will in that it involves two or more people, but each participant drafts their own will. People who want to make sure that their estates are handled and distributed in a coordinated way, in accordance with predetermined terms, frequently utilise these wills.
e) Testamentary Trust Will: Testamentary trust will allows you to include trusts in one’s will, allowing you to set aside assets for certain uses or beneficiaries. This sort of will is very appropriate if you have minor children or beneficiaries who may require long-term financial support. Trusts can also provide tax benefits and protect assets from creditors, ensuring that one’s estate is properly handled even after you die.
f) Holographic Will: The testator here signs and handwrites a holographic will without the requirement for witnesses. Nigerian law recognises holographic wills, but because they are informal, they may be more closely examined and face difficulties.
g) Customary Wills: These wills are recognized under customary law in certain communities and may have different requirements. See Ayinike V. Ibiduni (1959)4 FSC 280
h) Islamic Wills: These wills comply with Islamic law principles regarding inheritance.
HOW TO CREATE A WILL IN NIGERIA
Creating a will involves several steps:
i. Consider Your Assets: Make a list of your assets as it will help you decide how to share it.
ii. Choose an Executor: Select a trusted person to manage your estate and ensure your wishes are carried out accordingly as stipulated in the will.
iii. Clearly Identify Beneficiaries in the will: It is very important to state out clearly the persons to inherit one’s properties with concise details about them.
iv. Guardianship: This is mostly applicable when the testator has minors as beneficiaries. It will be important to designate a trusted guardian for them in the will before they come of age.
v. Seek Legal Advice: Consult with a lawyer specializing in estate planning to guide you through the process and ensure your will is legally sound.
vi. Draft the Will: Your lawyer will help you draft the will, ensuring it complies with all legal requirements.
vii. Sign and also get Witnesses to Attest the Will: Sign the will in the presence of your witnesses, who will also sign the document. See Ize-ayanmu V Alonge (2007) 6 NWLR Pt 1028. It is very important to get trustworthy witnesses to also sign the will.
viii. Store the Will Safely: Keep the original will in a secure location, such as a safe deposit box or with your lawyer.
CAN WOMEN INHERIT PROPERTIES VIA WILL IN NIGERIA?
Some traditions in Nigeria have, over the years, discriminated against women having the rights to own properties or be transferred possession of any property in a will. However, this has been put to rest in Nigeria as women can now acquire properties and inherit estate and possession from wills. See the cases of Mojekwu V Mojekwu [1997] LPELR-13777(CA), Uke V Iro (2001),11 NWLR (PT. 723)196, Ukeje V Ukeje (2014) LPELR-22724(SC).
AMENDING OR REVOKING A WILL
You can amend or revoke your will at any time during your lifetime. To make changes, you can create a “codicil”, which is a supplementary document that modifies or adds to the existing will see Osemwingie & Ors LPELR-19790(CA).
To revoke a will, you can destroy it, write a new will, or make a clear statement of revocation.
PROBATE
After the testator’s death, the will must go through probate, a legal process that validates the will and confirms the executor’s authority to administer the estate to the beneficiaries of the will as directed by the testator in the will.
CONCLUSION
Making a will is an essential step in planning for your future and ensuring your loved ones are provided for. By understanding the requirements and process involved, you can create a legally sound document that reflects your wishes and protects your legacy. It is highly recommended to seek professional legal advice when creating or amending a will to ensure its validity and effectiveness.
GET A WILL DRAFTED TODAY, CONSULT A LAWYER FOR FURTHER ADVICE!!
TeeKayGee 