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.
A Will could
also be defined as a testamentary instrument voluntarily made, executed and
attested to law by which a person makes a deposition of his real property, to
take effect after his death. The maker of the document is called a testator (or
testatrix where the maker is female).
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.
From the above, a Will is
ambulatory because it “speaks from the grave upon Death” for this same reason
it is testamentary (the book of Hebrews 9:16-17).
Section
9 of the Wills Act, and section 4 of the Wills Law of Lagos State requires that
every Will shall be in writing; it therefore invalidates a nuncupative (oral)
Will. However, under customary law, an oral will is valid. In Bankole
v. Tapo (1961) 1 All NLR 140, an oral disposition of land by a testator
was upheld to be sufficient to transfer the property to the beneficiary.
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.
CODICILS
A codicil is a
mini and supplementary Will by which a testator changes what is contained in a
Will by adding, altering or revoking. All principles on capacity and validity
of a Will apply to codicils also.
TYPES OF WILLS
There are
several types of Wills. They are –
1.
STATUTORY WILLS – This is regulated by
the relevant statute. Strict compliance is required for the validity of the
Will.
2.
NUNCUPATIVE (ORAL) WILLS – This is an
oral Will made before two or more credible witness. It is not a condition
precedent that the maker of this type of Will must be on his death bed (death-bed wishes) in order to be valid –
Adeyinka
v. Ibidunni (1959) 4 FSC 282.
3.
WRITTEN CUSTOMARY WILLS – There is no
consensus on the acceptability of this type of Will in Nigeria. It does appear
however that acceptability by the surviving members of the family and the
genuineness of the written document purporting to be ‘customary Will’ may
confer some measure of validity on the gifts contained in it.
4.
MUTUAL WILLS – This is where two or more
persons execute the same Will, conferring mutual benefit or reciprocal benefits
on each other. It is common between husband and wife. In this, none of the
testators can revoke or amend without the consent of the other.
5.
JOINT WILLS – This is like a mutual
Will, but it is where two or more persons execute the same Will by which they
give out their personal or joint properties to beneficiaries of their choice.
Though it is in one document, it is seen as separate Wills of the testators.
6.
HOLOGRAPH WILLS – This is a Will made in
the handwriting of the testator which lacks some of the basic pre-conditions
for a valid Will. In most cases, holographic Will may not preclude intestate
devolution of the estate of the testator.
7.
PRENUPTIAL WILLS – This is a Will made
by any of the spouses before marriage. Generally, marriage under the Act
revokes a Will by operation of law.
8.
PRIVILEGED WILLS – This is another form
of nuncupative Will but made by a certain category of persons accorded special
privilege to make a Will without necessarily complying with the statutory
requirements. This category includes persons in active military service,
regardless of his rank – section 11 of
the Wills Act, 1873.
9.
CONDITIONAL WILLS – This is a Will that
is executed by a testator and made subject to a condition.
ADVANTAGES OF MAKING A WILL
1.
A will displaces the application of the rules of customary
law to a person’s estate upon intestacy – Sogbesan v. Adebiyi (1941) 16 NLR 26.
2.
The testator has a satisfaction of having ordered his affairs
before his death, that is, the case of family property which would have
resulted upon intestacy would be forestalled. The devise will operate to vest separate
and individual interest not communal interest upon each beneficiary. It will
also specify the quantum of interest of each beneficiary.
3.
A will displaces the application of the rules of statutory
devolution, that is, the rule in Cole v. Cole (1898) I NLR 15; section 49
of the Administration of Estates Law, Laws of Lagos State.
4.
The testator has the satisfaction of benefiting those he
loved or owed a duty of care – Maja v. Johnson.(1951) 13 WACA 290
5.
The testator has the benefit of appointing people he trusts
as his executors, who has the duty to carry out his wish.
6.
Trusted persons can be appointed as guardians of testator’s
infants (young children).
7.
Executors of a will’s power of execution arises immediately
upon death not contingent on the Will being proved as in the case with issuance
of letters of administration upon intestacy. Thus, wide powers can be conferred
on executors.
8.
It gives the testator the opportunity of making specialty
gifts, that is, showing generosity to other people e.g. organisation donation
for whatever purpose.
9.
The testator is given the opportunity to give his funeral
directives. Point to note – is that;
this should be in a separate document kept in a place or with a person
accessible for it when needed.
10.
Upon the death of the last of those issued a grant of letters
of administration, a fresh grant has to be applied for and obtained. Whereas,
by transmission, the executors of the Will of the last surviving executor could
complete the winding up of the estate of a testator. Thus, probate is cheaper
to secure than letters of administration.
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 following
persons can also make a Will –
1.
A MOSLEM
The nature of a
Moslem to make a Will depends on the State where the testator is domiciled
(residential home). In States that apply the Wills Act, testators have
unrestrained right to dispose their properties notwithstanding their Islamic
faith.
In Adesubokan
& Ors. v. Yanusa (1971) All NLR 227, where the testator, Yunusa
Atanda Saibu, a native of Lagos died without sharing his properties equally
amongst his children, the plaintiff/respondent challenged the validity and
sought a declaration that the probate dated 29/6/66 granted to the defendant be
revoked as the said Yunusa Atanda Saibu (deceased) was a Moslem, died as a
Moslem, and left heirs and wives who were all Moslems. The trial court set
aside the probate on the ground that the testator has right to make a Will and
must ensure equal share of his properties amongst his sons since his properties
were located in Zaria. On appeal, the Supreme Court held that the Maliki Law
which favours equal distribution clearly violates the provisions of the Wills
Act, 1837 under which a testator can dispose of his properties, real and
personal, as he pleases.
By section 34(1) of the High Court Law, nothing
in the High Court Law shall deprive any person of the benefit of any native law
or custom including Moslem law which is not incompatible directly or by
implication with any law being in force. And in the above case, the Wills Act,
1837.
It must,
however, be noted that in States where they have their own Wills Law having
restriction on Moslem testators who are Moslems can only make Wills in
accordance with Islamic injunctions on inheritance, which is in accordance with
the Maliki Law. For example, section
3(1) of the Wills Law, Oyo State; and section 3(1)(b) of the Wills Law, Jigawa
State.
It has been
suggested that it is better for a Moslem in these States (Oyo and Jigawa) not
to border to make Wills, as the mode of disposition is already spelt out for
them under the Maliki Law – Prof. Sagay.
2.
BLIND OR DISABLED PERSON
A disabled
person can validly make a Will. Notwithstanding his disability, a blind person
can validly make a Will – Insitful v. Christian (1951) 13 WACA 347;
Agidigbi v. Agidigbi (1996) 6 NWLR 454.
However, when a
blind person is making a Will, it must be shown that the Will was read over to
him and he perfectly appeared to understand the contents affixing his hands to
it. Order 49, Rule 23 of the High Court
of the Federal capital Territory, Abuja provides that where the testator is
blind or illiterate, a court shall not grant administration with the Will
annexed unless the court is satisfied by proof or by what appears on the face
of the Will that the Will was read over to the deceased before its execution or
that he had at that time knowledge of its contents – Henry Charles Christopher v.
Samuel Insutful Tawiah 13 WACA 347.
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.
Where a Will is
regular on its face, it enjoys the presumption of due attestation. This is the
implication of the common law maxim – Omnia praesumuntur rite esse acta. Thus,
the court will deem that a Will is duly executed where it appears on its face
to be ex facie regular based on the Omnia maxim.
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.
In Foot
v. Santon (1856) 164 ER 489, a Will was attested by two persons and
neither of them recollected the circumstances, although they recognised their
signatures. The Will was presumed duly executed.
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”.
BURDEN OF PROOF OF DUE EXECUTION OF A WILL
The burden of
proving is on the propounder of the Will. Thus, the onus is on the party who
propounds it to show clearly that prima
facie, it is duly executed (primary burden of proof). If this is
discharged, the burden will shift to the other party challenging its proper
execution (secondary burden of proof) to prove that the Will is not properly
executed or that it is tainted with fraud or forgery – Adamu v. Ikharo (1988) 4 NWLR
(Pt. 89) 478.
It should be
noted that proving due execution of Wills may be in the reversed order in
courts because in Civil cases, “the party who asserts must prove”, but this is
not the case in probate cases (it is the reverse).
The propounder
must also prove testamentary capacity – that the document is the last Will of a
free and capable testator. Once it has been proved that a Will has been
executed with due solemnities by a person of competent understanding and apparently
a free agent, the burden of proving that it was executed under influence is on
the party who alleges it – Johnson v. Maja (1951) 13 WACA 920.
Positive and
relative evidence must be proved in proving due execution of Wills, and the
evidence must be affirmative – Lawal Osula v. Lawal Osula (1995) 9 NWLR
(Pt. 419) 259; (1993) 2 NWLR. The presumption is not rebutted for
failure of witnesses to remember or know details – Blake v. Knight Vol. 163 E. R
821. If witness states that there was no due execution and this is not
rebutted, the Will, will be pronounced against it.
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.
The following tests
were put forward in the judgment by Cockburn
C.J. in the case of Banks v. Goodfellow (supra) –
1.
The testator must understand
the nature of the act that he is making his will and its effect.
2.
He must understand and
recollect the extent of the property of which he is disposing.
3.
He must understand and
appreciate the nature and extent of the claims upon him by both of those whom
he is including from his Will.
4.
The manner in which the
property is distributed must be rational that no disorder of the mind has
poisoned his affection or perverted the exercise of his will.
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.
Section 8 of the Wills
Law, Lagos State provides the following –
1.
A person attesting a Will shall
not benefit under the Will; any gift made to such person shall be utterly null
and void.
2.
The disqualification of gifts
to beneficiary-witness extends to his or her spouse, that is, the spouse of a
witness to a Will cannot take any benefit under the Will.
3.
A benefiting witness is only
disqualified from taking the gift made under the Will, but he is a competent
witness to testify on the facts of due execution of the Will.
4.
Where the Will is still duly
executed, if the signature of the benefitting witness is disregarded, the
benefitting witness can still benefit from the right made in the Will. This is
in cases where there are at least three (3) witnesses to the Will, the
beneficiary can still keep his gift if the courts discountenance the
attestation of the beneficiary so that there will be at least two (2) witnesses
to validate the Will.
A solicitor owes the client the duty to explain to him that a
beneficiary or spouse cannot be a witness to a Will due to the consequences,
but where the solicitor fails to do such, he will be held liable for negligence
– Ross
v. Counters (1980) Ch. 297.
EXCEPTIONS TO THE RULE
THAT A WITNESS CANNOT BENEFIT UNDER A WILL
These are –
1.
Gifts made for settlement of
debt.
2.
Marriage between witness and
spouse-beneficiary after execution of a Will.
3.
Witness or spouse holding gift
in trust for another person.
4.
Where a gift is confirmed in
another Will.
5.
Where there are more than two
(2) witnesses.
6.
Where attestation is not
mandatory (privileged Wills).
7.
Where beneficiary signs a Will
not as a witness but merely to confirm acceptance of legacy less than his
entitlement.
8.
Gifts in a Will saved from
revocation under the doctrine of relative revocation.
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.
JOHNSON v. MAJA 13 WACA 290
FACTS
It has to do
with the Will of the late Alfred Latunde Johnson, who died on the 7th
April, 1950. The Will was dated the 27th November, 1943, and a
codicil to it was executed on the 27th July, 1945.
The executors
applied for a grant of probate; but the testator’s widow lodged a caveat against the grant.
The executors as
plaintiff sued the testator’s widow as defendant and asked the court to declare
in solemn form for the Will and codicil, while the widow, as defendant,
challenged the Will upon three (3) grounds namely –
1.
That it had not been executed
as required by law;
2.
That the testator was not of
sound mind, memory and understanding at the time of the execution; and
3.
That the execution was obtained
by the undue influence of a woman named Agnes Jokotade who was the mistress of
the testator.
At the trial,
the judge found that each of the allegations had been proved, and he pronounced
against the Will and declared that, so far as the Will was concerned, the
testator had died intestate.
On appeal,
argument was addressed to the West African Court of Appeal by both counsel upon
the question as to where the onus lies in cases of this kind where one party
propounds a Will, and the other party challenges not only its execution, but
also the mental capacity and free will of the testator.
Lewey J. A. Observed as
follows –
“A testator has every right to change his mind at any time before
his death provided it is conclusively proved to the satisfaction of the Court
that at the time of his executing the Will, he was a free agent and under no
influence and that the Will was properly executed.”
On issue No. 1 above – “that it had not been executed
as required by law”,
The court stated
that what is there to be said as to proof of the execution of a Will? An
examination of the Will shows that it appears to bear the signature of the
testator, that it has the usual attestation clause in the form required by law,
and that it was witness by Bright Wilson, and A. S. O. Coker.
On issue No. 2 – “that the testator was not of sound
mind, memory and understanding at the time of the execution”,
The court stated
that it has to do with the testamentary capacity of the testator. Mr. Bright
Wilson [a witness], in his evidence, not only said that it was the testator who
brought the Will to him for its execution to be witnessed, but stated that the
testator was normal at the time, and that he was in active practice as a
barrister and solicitor. Two medical men were called, Dr. Omololu and Dr. Maja,
both of whom had regularly attended the testator and had also been personal
friends of his for years. Each described the cerebral affections from which the
testator at one time suffered, but each testified that his mental condition was
normal in 1943 when he signed his Will, and indeed two years later in 1945, the
year when he executed a codicil to it. There seems to be no dispute that it was
the testator himself who prepared this lengthy Will with its numerous and
somewhat complex provisions, and that he himself initialled each page of it.
The evidence
shows, furthermore, that he continued in the active practice of his profession
for some years after the date of the Will, and that he lived for over six years
afterwards.
On issue No. 3 – “that the execution was obtained by
the undue influence of a woman named Agnes Jokotade who was the mistress of the
testator”,
The court stated
that it is not disputed that when the doctors, in the early part of the year,
ordered him to rest, the testator retired to a farm in the country where for
some weeks he was away from his wife and was visited by Agnes Jokotade.
Some evidence
was also given as to the aggressive and over confident attitude of Agnes
Jokotade about this time, and the testator’s bank pass-book was produced
showing a number of payments at various dates to Agnes Jokotade, the amounts of
which were certainly considerably larger during the period in question.
The court stated
however that the defendant/respondent has failed to discharge the onus laid
upon her. For it must be remembered that something far stronger than
reprehensible, or even unnatural, conduct in a husband or father is required in
these cases. The immoral conduct of the testator, his preference for his provision
for her are far from being sufficient to show that the execution of his Will
was obtained by Agnes Jokotade’s undue influence. There is indeed, nothing that
can be found to connect Agnes Jokotade directly with it. And there is no
evidence that Agnes Jokotade even “persuaded” the testator to make his 1943
Will, much less that it was by her fraud or her coercion that it was executed –
even taking account of the varied forms which coercion may take.
HELD
The court held
that the onus of proof shifts. In the first stage, where there is a dispute as
to a Will, those who propound it must clearly show by evidence that prima facie all is in order: Thereafter,
the burden is cast upon those who attack the Will and they are required to
substantiate by evidence the allegations they have made. The decision must
ultimately depend upon a consideration (having regard to the shifting burden of
proof), of the value of all the evidence given by both sides.
The plaintiffs
sufficiently discharged the burden of establishing a prima facie case and the defendant/respondent failed to prove
affirmatively the charges made. The court set aside the judgment of the trial
court and substituted therefore a judgment pronouncing in solemn form for the
testator’s Will and the codicil thereto.
The court
further held that the Will stands and is effective; no useful purpose can be
served by an examination of the law as to republication by a codicil.
The appeal was
allowed and the judgment of the lower court was set aside.
ADEBAJO v. ADEBAJO (1971) ALL NLR 599
FACTS
The main issue
is the validity of the Will.
The plaintiff is
the widow and one of the persons entitled to share in the estate of Isreal
Adebayo Ogunyeade Adebajo (deceased) who died on the 25th day of
July, 1969, in the event of intestacy and to have as such a grant of letters of
administration of the estate of the said intestate. The plaintiff accordingly
claims a declaration that Isreal Adebayo Ogunyeade Adebajo died intestate.
The plaintiff
further asserted that at the time when the alleged Will was executed, the
testator did not know and approve of its contents. Thus, the deceased at the
time when the said alleged Will purports to have been executed was not of sound
mind, memory and understanding.
The defendants
rebutted the plaintiff’s claim and asserted that the deceased personally gave
instructions to A. Osijo, Esquire, Barrister-at-Law, to whom he gave detailed
and sensible instructions about the dispositions contained in the said Will.
That the
deceased at the time of giving instructions to the said A. Osijo, Esquire, and
at the time of executing the said Will was of sound mind, memory and
understanding and knew and approved the contents of the said Will and
acknowledged his approval thereto; and that the said Will was executed with due
solemnities by the deceased with a complete understanding and as a free agent
without any undue influence or coercion as alleged or at all.
HELD
The court stated
that if there be no date to a Will, or if there be an imperfect date only, one
of the attesting witnesses or some other person present at the time of
execution must supply evidence of the date of execution, if evidence of
execution on a definite date cannot be obtained, evidence as to the execution
between two definite dates should be given by both witnesses. If neither of the
attesting witnesses nor any other person can depose to execution between two
definite dates, evidence must be given showing that search been has made and no
Will of presumably later date had been found. If the date given in the Will is
not the true date of execution, evidence of the correct date should be given by
an attesting witness or some other person present at the execution.
On the evidence
in this case, there was no doubt that the Will was in fact not made on the 21st
day of January, 1969 but on the 25th June, 1969 and executed on that
day. The fact that the date of the execution differed from the date of the Will
was of no consequence.
The court also
stated that the burden of proving due execution, whether by presumption or by
positive evidence, rests on the person setting up the Will. Although those
propounding the Will must satisfy the court that the testator was of sound
disposing mind, yet if the Will is rational on the face of it and is shown to
be duly executed and no other evidence is offered, the court will pronounce for
it, presuming that the testator was mentally competent. Slight evidence of
mental capacity will not disturb this presumption.
The court
further stated that the burden of proving unsoundness of mind lies on those who
allege it. But when the whole evidence is before the court, the decision must
be against the validity of the Will, unless it is affirmatively established
that the deceased was of sound mind when he executed. Also, a party who puts
forward a document as being the true last Will of the deceased must establish
that the testator knew and approved of its contents at the time when he
executed it.
The court held
that based on the evidence before it, there was more than enough to satisfy the
conscience of the court that the instrument so propounded was the last Will of
a free and capable testator and to remove any suspicion which might have been
cast on the Will. The evidence affirmatively showed that the testator knew of
and approved the contents of the Will.
The action brought
by the plaintiff was dismissed.
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