In some parts of
Nigeria, a Will cannot be made to displace customary and native law, rules and
inheritance, because of the duality of the Wills system in Nigeria; it would
mean that there are two results that may occur depending on the part of the
country where the testator is from.
In some parts of
Nigeria, for example, the Northern part, the main law that governs the making
and validity of a Will is the Wills Act of 1837 which is a statute of general
application. In some other parts Nigeria, for example, the old western region,
it is the Wills law of their respective states that is applicable.
Therefore, in
the parts where the Wills Act 1837 applies, a testator is at liberty to dispose
of his properties as he pleases by his Will. In Adesubokun v. Yunusa (1971) 1 All
NLR 225, the validity of the testator’s Will was challenged on the
ground that as a Moslem who was subject to Moslem law, the testator was not
capable of making a Will in accordance with the Wills Act, contrary to Moslem
law. The Supreme Court held that a Moslem may by his Will made in accordance
with the Wills Act, 1837 dispose of his properties as he wishes. That the
Moslem law which provides for equal distribution of a testator’s properties in
the face of the existence of a valid Will is in breach of section 3 of the
Wills Act 1837 by which a testator can dispose of his properties as he wishes.
Also, in Apatira
& Anor. v. Akanke & Anor. (1944) 17 NLR 149, it was contended
that the validity of a Will made in English form by a Nigerian Moslem should be
governed by Moslem law. This contention was flatly rejected by AMES J., when he
held that “the fact that the deceased was a Nigerian and a Mohammedan cannot
make any difference to the requirements of the Wills Act”.
Presently, the
mode of sharing of a testator who is a Moslem is equal distribution amongst all
male children; one eight (1/8) to the wife or wives and
not more than one-third (1/3) to outsiders – Adesubukan
v. Yunusa.
However, in the
states of the old Western region which have enacted their own law, there is a
provision prohibiting a testator from disposing of his properties in a Will in
a manner that is contrary to native law and custom on inheritance, for example,
section 1(1) of the Wills Law of Lagos
State. Thus, in the case of Idehen v. Idehen (1991) 6 NWLR (Pt. 198)
382, the testator, a Bini man by his Will devised his Igiogbe (main
residential house) to his eldest son, a medical doctor. At the death of the
testator, his eldest son, Dr. Idehen was not alive, thereby predeceasing the
testator. The surviving oldest son contended that since the original eldest son
to whom the Igiogbe was willed have died before the testator; he was entitled
to inherit the Igiogbe being the surviving eldest son. This contention was
upheld by the court.
Also, in Lawal
Osula v. Lawal Osula (1995) 3 NWLR (Pt. 328) 128, the testator, a Bini
chief made a Will in English form. The Will completely omitted the 1st
plaintiff and some other children. He succeeded to his father’s (testator’s)
title and performed second burial rites of the testator. The issue before the
court was whether the testator could by his Will exclude the 1st
plaintiff from inheritance of the Igiogbe, which by custom goes to the eldest
son. The Supreme Court held that the power of the testator to make a Will is
subject to customary law relating thereto and that the testator could not
validly exclude his eldest son from inheriting the Igiogbe.
Another
limitation of the testator can be found in section
2(1) of the Wills Law of Lagos State which provides thus –
“Notwithstanding the provisions of section 1 of this law, where a person
dies and is survived by any of the following persons:
a)
The wife or wives or
husband of the deceased; and
b)
A child or children of the
deceased, that person or those persons may apply to the court for an order on
the ground that disposition of the deceased estate effected by his Will is not
such to make financial provision for the applicant”.
The implication
of the above provision is that where a testator fails to reasonably and
adequately provide for the maintenance of his surviving dependants in his Will
or trust as the case may be, an application may be made to the court for an
order for payment to be made for that purpose from the testator’s estate.
However, a
testator may on reasonable and cogent ground disentitle any of the family
member or dependant by stating his reason or reasons for so doing in the Will
itself or in a separate document.
PARTICULARS OF INFORMATION REQUIRED TO PREPARE A WILL
1.
Take proper instructions – Solicitor
must win the client’s confidence. The intentions of the testator is paramount,
it is better that the Solicitor should personally take instructions directly
from the testator, it is not ideal for a solicitor to delegate his duty to any
other person, written instruction are preferable. The solicitor should cover
the entire field; the use of checklist is recommended. Where the testator gives
oral instruction, copious notes should be taken and no information should be
ignored.
2.
Diligence and care – When drafting a
Will, the solicitor must be meticulous and exercise a high degree of care and
attention. The consequence of an error or ambiguity that is undetected until
after the death of the testator is fatal and open to unpredictable judicial
interpretation. Remember that the solicitor may be liable for his negligence in
the drafting of the Will – Ross v. Counters (1980) Ch. 297.
3.
Knowledge of the law – When embarking on
the task of drafting a Will, the solicitor should bear in mind the importance
of compliance with the applicable law on the essential and formal requirements
of a valid Will. The testator must possess the requisite testamentary capacity,
the witnesses should be contracted and where the testator is under any
disability such as illiteracy or he is blind or he is dumb and deaf, the
necessary jurat should be inserted and all legal requirements complied with.
The place for the execution of the Will should be spacious enough to
accommodate all concerned. Solicitors must always use good precedents, which he
can modify according to his need.
4.
Extent of the testator’s property – The
solicitor should be furnished with details of the properties owned by the
testator. The title, location and value of such properties; information on any
gift made inter vivos is also
relevant. Information concerning the testator’s interest in any company,
insurance policy, pensions or any other venture is necessary. Knowledge of the
extent of the testator’s property is important in advising him and the
calculation of estate duty; it may also be useful on the question of hotchpot
(that is, the blending and mixing together of property belonging to different
persons into a common lot in order to divide it equally). Instruction should be
taken in respect of any property of the testator that is subject to customary
law; any disposition of such property contrary to the relevant customary law
may render the gift void.
5.
Composition of the testator’s family –
The solicitor should be informed about the members of the testator’s family and
his dependants. Where the testator is married, the solicitor should ensure that
adequate provision is made for the spouse to avoid the intervention of the
court in making reasonable provisions for family members and dependants. Where
the testator is not married, he should be informed of the legal consequence of
subsequent Marriage Act on the Will.
6.
Former Will – The solicitor should
confirm if the testator has any previous Will or testamentary document that is
not yet revoked. Where there is, it should be ascertained whether the present
Will is intended to revoke the previous Will so as to properly reflect the intention
of the testator in the Will. There is no reason why the testator should have
more than one Will, a codicil may just be sufficient to carry out the
testator’s instructions.
7.
Executors – The testator should be
advised on the relevant considerations concerning those to be appointed
executors and also whether it is necessary to also make them trustees. Where
the executors will carry out professional duties under the Will, the necessity
of a charging clause should be considered.
8.
Directions as to the mode of burial – Instructions
concerning the disposal of the testator’s body are sometimes included in the
Will. But it is not advisable that its inclusion in the Will is the only means
of knowing how his body should be disposed of. In most cases, the dead is buried
before his Will is read. This point is more relevant to the Will of a Moslem;
under Islamic law, a Moslem is buried within 24 hours of his death according to
Islamic burial rites. Therefore, where the testator desires that his body
should be disposed of in any particular method, this should be communicated to
close relatives, associate or executors of the Will during the lifetime of the
testator.
The summary of
the above is that a solicitor who is briefed to draft a Will should note the
following information –
1.
Ask of the testator’s name,
nickname, date of birth, religion, nationality, state of origin, profession and
address.
2.
Find out whether he has made
any previous Will, and if yes, whether the Will can be made available to you.
3.
Ascertain his marital status.
4.
The name, profession and
address of the executors, and any specific instruction as to the remuneration
of the executors.
5.
List of legacies to be given
out.
6.
Properties given out inter vivos.
7.
List of his realties (landed
properties and the custody of their deeds or document of titles).
8.
State the name and addresses of
the beneficiaries.
9.
Manner of distribution of the
estate to the beneficiaries.
10. Ask whether there should be any alternative/substitute
beneficiaries, if any of the beneficiaries predeceases the testator.
11. Name, address and occupation of the witnesses.
12. Solicitor’s remuneration.
13. Ask if the testator may need to leave any instruction as to his
funeral or debt owed by him and note these separately in another document.
14. Ask about his debts and liabilities.
15. Ascertain whether there is need for survivorship provision.
PARTS (CONTENTS) OF A WILL
The various parts of a Will are –
1. Commencement
2. Revocation clause
3. Appointment clause
4. Directive and Charging clause
5. Gift clause
6. Residuary clause
7. Testimonium
8. Execution and attestation clause
COMMENCEMENT and DATE
THIS IS THE LAST WILL AND
TESTAMENT OF ... MADE THIS ... DAY OF...
This provides for the full names (and any former names or alias),
address, occupation and the date of the Will.
Where no date is inserted in the Will or if the date on it is
contested, the evidence of the attesting witnesses or some other persons
present at the time of execution is admissible to prove the date of the Will – Adebajo
v. Adebajo (1973) 3 ECSLR 544.
REVOCATION CLAUSE
I HEREBY REVOKE all
previous testamentary dispositions made by me...
Every Will should provide for the revocation clause, except where
the testator intends that he has other Wills that should be interpreted
together, and both may be admitted to probate at his death. Having more than
one Will is not good because it could be interpreted as implied revocation of
the earlier Will.
APPOINTMENT CLAUSE
I APPOINT... to be the
executors and trustees of my Will. AND I DECLARE that the expression “my executors
and trustees” shall where the context so admit include...
With or without executors, the Will is valid. It is important that
every Will make provision for appointment of executors who may also serve as
trustees. The trustees may also act as guardian for the testator’s infant
children. It is important that the testator appoint a minimum of two and a
maximum of four executors. The executors should be persons who are willing and
capable to discharge their duties as executors.
DIRECTIVE AND CHARGING CLAUSE
I AUTHORISE MY EXECUTORS
TO CHARGE... or I DECLARE THAT MY EXECUTORS SHALL CHARGE...
This clause is for the benefit of professional executors who are, by
this clause, permitted to charge professional fees for jobs done in the
performance of their duties as executors.
GIFT CLAUSE
I GIVE TO...
The Will should provide for the various gifts, which may be
specific, general, demonstrative or pecuniary. The clause is usually numbered
serially.
RESIDUARY CLAUSE
I DECLARE THAT THE
REMAINDER OF MY ESTATE SHALL... or I GIVE TO...
This clause provides for how the remaining properties of the testator
not given out under the Will should be disposed of.
TESTIMONIUM
IN WITNESS OF WHICH...
The testimonium links the testator with the Will.
EXECUTION AND ATTESTATION CLAUSE
SIGNED BY...
A Will must be executed according to law. A Will is not executed as
a deed; it is executed as ‘SIGNED by...’ Where the testator is illiterate,
blind, dumb or deaf, the jurat should be inserted. The names, signature,
address and occupation of at least two witnesses must be provided.
Follow @wingrassnews
No comments:
Post a Comment