PROBATE AND LETTERS OF ADMINISTRATION IN NIGERIA

Probate is the legal certification of the validity of the Will; or an official copy of a Will that is legally certified as genuine and given to the executors. Letters of administration is an official court order appointing someone as the administrator of a deceased person’s estate where no valid Will exists. An administrator, however, derives his powers to act from the grant of letters of administration, and where the letters of administration is not granted, an administrator cannot act.

While a probate confirms the representation of an executor, a letter of administration confers the representation of an administrator. It should be noted that, where a testator states that he wants the customary law of Yoruba land to govern his estate, the court will look at the nature of his property to determine if the customary law of Yoruba land can govern it or not. GRANT OF PROBATE OR ADMINISTRATION This is usually granted upon application made to the probate registrar by an interested person either personally or through his legal practitioner – Order 55 Rule 50 and 51, Lagos High Court Civil Procedure Rules. All applications for probate are made to the Probate Registrar – Order 55 Rule 1, Lagos High Court Civil Procedure Rules; and section 20 of the Administration of Estates Law of Lagos State, in the State High Court. Where the application is made by a legal practitioner, the legal practitioner must disclose the address of his business place in the application. TIME FOR GRANT Probate or administration will not be granted until after seven (7) days of the death of the testator – Order 55 Rule 1(3), Lagos High Court Civil Procedure Rules GRANT There are mainly three (3) types of grant viz – 1.      Grant of probate with Will – This is where the deceased dies testate, leaving a valid Will with the executors appointed in the Will to carry out the wishes of the testator. 2.      Grant of probate without appointing executors – This is where the deceased person dies testate but without appointing executors; or the appointed executors are late; or the executors are infant; or the executors have renounced probate. 3.      Grant of administration without Will – This is where the deceased person died intestate (without a Will) and so could not appoint executors. Also, a grant may either be general or limited. A general grant is granted to cover all assets in the estate and for all purposes without time limit. Whilst, a limited grant is one that is limited as to time; limited to part of the estate only; and limited as to a purpose. PERSONS ENTITLED TO GRANT OF PROBATE Order 55 Rule 25, Lagos High Court Civil Procedure Rules provides for such persons in an order of priority namely – 1.      The executor; 2.      Any residuary legatee holding in trust for any other person (that is, where the residuary estate is subject to a trust); 3.      Any residuary legatee or devisee for life; 4.      The ultimate residuary legatee or devisee, including one entitled on the happening of any contingency; 5.      Any specific legatee or devisee or creditor or their personal representative; 6.      Any specific legatee or devisee entitled on the happening of any contingency, or next-of-kin. PROCEDURE FOR GRANT OF PROBATE This depends on whether it is – 1.      Non-contentious grant; or 2.      Contentious grant. NON-CONTENTIOUS CASES IN PROBATE AND ADMINISTRATION This has to do with – 1.      All business of a non-contentious nature in matters of testacy and intestacy which are not proceedings in any court; and 2.      Grant of probate and administration by the High Court where contentious cases have been terminated. PROCEDURE TO OBTAIN PROBATE AND LETTERS OF ADMINISTRATION IN NON-CONTENTIOUS CASES

The procedure (where there is a Will) entails –

1.      Discovery of the Will – This is the first step which depends on whether the testator has made a Will to the knowledge of his solicitor. The search may be conducted at the probate registry to ascertain whether the testator’s Will is deposited at the probate registry. The Solicitor is to apply to the Probate Registrar on the following –

(i)                 The death of the testator accompanied with a death certificate as a proof.

(ii)               The fact that the testator made a Will and deposited it at the registry stating the particulars of the Will (that is, when it was deposited, etc).

(iii)             The names of the persons that are interest or likely to be interested in the estates of the testator.

2.      Reading of the Will – The Probate Registrar is to appoint a date, time and place when the Will would be read to these persons. When those interested in the estate appears on the fixed day, time and venue, the Registrar brings out the Will in their presence, breaks the sealed wax on it and reads the Will and makes a record of the proceedings of the day – Ajibaiye v. Ajibaiye (2007) All FWLR (Pt. 359) 1321; Dan-jumbo v. Dan-Jumbo (1999) 7 SCNJ 112.

3.      Application for probate – This is done by the executors to the Will by filling and completing the relevant forms and submitting certain documents to accompany the application to the Probate Registrar.

The basic forms/documents required to process probate are as follows –

a)      An application letter to the Probate Registrar in that jurisdiction which shall indicate –

(i)                 Identity of the testator by stating his name, date of birth, address, profession, marital status, names of spouse and children;

(ii)               The date and place of the death of the testator;

(iii)             That the testator was resident within the jurisdiction of the court shortly before his death;

(iv)             That the testator was found to have made a Will; and

(v)               Name of executors, if any, in the Will.

b)      A death certificate of the testator (this is mainly a death certificate issued by the National Population Commission in Form D. 2).

c)      A declaration on Oath by executors to the effect that they will faithfully administer the estate of the testator and render accounts according to the Will of the testator.

d)     An Oath or justification by sureties on behalf of the applicant in a specific penal sum to guarantee his administration of the estate.

e)      A duly completed bond by the applicants to pay the debts and liabilities of the testator’s estate, to distribute the estate and also make inventory.

f)       An authorisation by way of a bank certificate issued by the Probate Registrar to a personal representative or applicant to inquire into the details of the testator’s bank account, if any. This is the only method through which an applicant can know the contents and details of a testator’s bank account.

g)      A duly completed inventory specifically listing the properties of the testator.

h)      A sworn affidavit or attesting witnesses of the Will stating that they are witnesses to the executed Will, and if the testator was blind or an illiterate, that they were present during the interpretation of the contents of the Will to the testator.

i)        Passport photographs of the applicants and witnesses to the Will.

4.      Granting of probate – Upon satisfaction with the requirements, the Probate Registrar shall grant probate to the applicants with the Will attached to the probate or he shall grant the letter of administration.

CONTENTIOUS CASES IN PROBATE AND ADMINISTRATION

This has to do with –

1.      Disputes that pertain to what document or documents should be admitted to probate;

2.      Disputes as to who is entitled take out a grant – Emmanuel v. Doherty (2009) 1 NWLR (Pt. 1123) 505; and

3.      Disputes as to whether a grant should be revoked – Igunbor v. Afolabi (2001) All FWLR (Pt. 59) 1284.

PROCEDURE TO OBTAIN PROBATE AND LETTERS OF ADMINISTRATION IN CONTENTIOUS CASES

The procedure (where the grant of probate is contested) entails –

1.      Application for probate – This must have been made by a person who is either challenging the validity of the Will, or resisting the appointment of a person as executor, or seeking the revocation of the grant of probate. Such a person would object to the grant of probate.

2.      Caveat – A person would usually express his opposition to the grant of probate by filing a caveat. Where a caveat is filed, the Probate Registrar shall refer the proof of the Will to the court. The caveat is in Probate Form 3 or Form 4 Lagos High Court Civil Procedure Rules. Probate is usually not granted until the expiration of three (3) months which is the life span of a caveat – Order 55 Rule 71, Lagos High Court Civil Procedure Rules. No caveat shall be effective against grant of probate on the day on which the caveat is entered – Order 55 Rule 71(7), Lagos High Court Civil Procedure Rules. The Probate Registrar shall bring to the notice of an applicant for probate the existence of any caveat, and shall not seal any probate if he has knowledge of any effective caveat to the application for probate. And to ensure that no probate is sealed in error, the Probate Registrar shall maintain an index of caveats.

A caveat shall cease to be effective under any of the following –

a)      Where the caveator (a person who files a caveat) fails to enter appearance to a warning or citation within the specified period, and the citor (the person warning) files an affidavit to that effect – Order 55 Rule 71(12), Lagos High Court Civil Procedure Rules;

b)      After three (3) months of its filing unless further caveat or caveats are entered – Order 55 Rule 71(5)(b), Lagos High Court Civil Procedure Rules; and

c)      Caveat filed by a person who had knowledge of probate action and still files caveat against grant after probate action – Order 55 Rule 71(14)(c), Lagos High Court Civil Procedure Rules.

Unless the Probate Registrar grants the leave for further caveat, no further caveat shall be entered where the previous one ceases to have effect under (a) and (c) above – Order 55 Rule 71(15), Lagos High Court Civil Procedure Rules.

3.      Citation/Warnings – The applicant for grant of probate may cite the caveator by serving appropriate warning called “the person warning” in Form 5, Lagos High Court Civil Procedure Rules, which is a warning to him to give particulars of any contrary interest which the caveator has in the estate of the testator – Order 55 Rule 71(8), Lagos High Court Civil Procedure Rules. The caveator shall enter appearance or respond by filing Probate Form 6, Lagos High Court Civil Procedure Rules. The forms are used by the caveator to disclose the nature of the contrary interest in the estate of the testator. A caveator not having interest contrary to that of the person warning but wishing to show cause against the sealing of a grant to that person, may within eight (8) days of service of the warning upon him inclusive of the day of such service, or at any time if no affidavit has been filed by the person warning that the caveator has been served with the warning and has not responded, issue and serve a notice to be served on the caveator – Order 55 Rule 71(11), Lagos High Court Civil Procedure Rules.

4.      Appearance – Where a caveator wishes to respond to the warning, he is required to file an appearance to the citation or warning. In the appearance, the caveator will disclose the nature of his interest in the estate and the reason he desires that the applicant should not be granted probate. However, where an appearance is not entered, the caveator who has not entered appearance to the warning may withdraw his caveat by giving notice of withdrawal to the Probate Registrar – Order 55 Rule 71(10), Lagos High Court Civil Procedure Rules. Where the caveator fails to respond within the time stipulated, the applicant may file affidavit showing that the caveator has been cited and warned, but no summons or response has been received. Thereafter, the caveat shall cease to be effective and probate may be granted – Order 55 Rule 71(12), Lagos High Court Civil Procedure Rules. Where a probate action is commenced (whether or not any caveat is entered), the action will operate to prevent the sealing of a grant until application for grant is made by the person shown to be entitled by the decision of the court in such action.

5.      Probate Action – Where the caveator enters an appearance to the warning and discloses a contrary interest, probate will not be granted but the matter will be heard in court for grant of probate in solemn form. Where the Will is referred to the court to be proved, the propounder shall have the burden of establishing its due execution or validity or that the testator had knowledge of its content and approved it – Okelola v. Boyle (1998) 2 NWLR (Pt. 539) 533; Adebajo v. Adebajo (1971) All NLR 155.

At the conclusion of the probate trial, the Probate Registrar may or may not grant probate depending on the outcome of the action. If the court pronounces for the Will, the registrar would grant probate. However, if there is a pending appeal, probate will not be granted until the appeal is finally determined in favour of the Will or the propounder of the Will. Pending the decision of the action in court, the court has the discretion to grant a temporary administration pendete lite to preserve the estate – Mortimer v. Paul (1870) LR 2 P & D 85.

DOUBLE PROBATE

This is the grant of double probate. It is granted where a person applies for a grant after a grant had been earlier made to an Executor. While the first application for a grant is the original grant, the second application for a grant is what is referred to as double probate. This arises in the following circumstances –

1.      Where one of the executors is a minor at the period the original grant was made to the other executors (being adults). He can apply for a double grant upon reaching eighteen (18) years (which is the age of maturity in Lagos jurisdiction).

2.      Where a grant is made to the maximum number of four (4) executors and a further executor is prevented from taking the grant, such person may apply for double probate if a vacancy occurs e.g. death of any of the four executors.

3.      Where for any reason, one of the executors is unavailable (e.g. being sick), or does not wish to take grant immediately, he may apply for double grant subsequently.

GROUNDS FOR REFUSAL TO GRANT PROBATE OR LETTERS OF ADMINISTRATION

The court has discretion to grant probate or letters of administration in the estate of the testator – Onewokae v. Onewokae (2007) All FWLR (Pt. 356) 788. Such grounds of refusal includes the following –

1.      Where the applicants have failed to file the necessary documents to their applications for the grant of probate or administration.

2.      Where the court is satisfied that the applicants are outside the table of those to be considered for the grant as set out in the relevant legislations – Order 55 Rule 25, Lagos High Court Civil Procedure Rules; section 49 Administration of Estates Law, Lagos State.

3.      Where an application for probate and administration are made when the testator is still alive.

4.      Where the applicant is not such person with the best interest of the estate of the deceased at heart and will likely mismanage the estate.

5.      Where the applicant is an infant, probate or administration will not be granted directly to him except to both of his parents jointly, or to a guardian appointed by the court.

REVOCATION OF GRANTS

These are instances where grants may be revoked. They are –

1.      Where it was made to a person whom it ought not to have been made, e.g. where an application is made fraudulently; or where the testator thought to have been dead is still alive, etc.

2.      Where a subsequent Will or codicil is discovered which supersedes the Will upon which the first grant was made.

3.      Where it was later discovered that the Will upon which a grant was made had been revoked or was invalid before the grant.

4.      Where the person to whom the grant was made consents to its revocation.

RE-SEALING

Where the testator or intestate has property outside the state where grant of probate or of administration is made, the grant shall be resealed – section 2 of Probate (Re-sealing) Act.  Section 2 of the Probate (Re-sealing) Act provides that –

“Where the High Court of a State has, either before or after the commencement of this Act, granted probate or letters of administration in respect of the estate of the deceased person, the probate or letters so granted may, subject to the provisions of this Act, on being produce to, and a copy thereof deposited with, the High Court of any other State be re-sealed with the seal of that other court.”

The effect of re-sealing a probate or letters of administration in a State High Court by another State High Court is to make it seem as if the seal of court is granted by the High Court of that State. That is, re-sealing enables a grant made in one state or country to be effective within another state or country.

The personal representatives of the deceased have no power over the property of the deceased outside the state where grant is made. They also lack locus to institute action in respect of such property that are outside the state where the grant is made – Federal Admin-General v. Arigbabu (1964) NMLR 135. The resealing is made in respect of the property of the deceased found outside the state or country where the original grant was made.  It is regulated by the various High Court Laws and Rules. The resealing shall be made in that other states where the property exists or is situate.

APPLICATION FOR RE-SEALING

This shall be made by the person to whom the grant was made or by any other person authorised in writing to apply on his behalf to the Probate Registry.

The applicant shall complete and return the following forms to the Probate Registrar –

1.      An application for re-sealing of probate/double probate.

2.      An oath to lead re-sealing.

3.      A bank certificate.

4.      An inventory.

5.      Particulars of freehold/leasehold property left by the testator.

6.      Administration bond on application for re-sealing.

Before re-sealing a probate or letter of administration, the court shall satisfy itself that –

1.      Estate duty has been paid in respect of so much, if any, of the estate as is liable to estate duty in that State; and

2.      In the case of letters of administration, that security has been given in a sum sufficient in amount to cover the property, if any, in that State to which the letters of administration relates.

The applicant is required to provide sureties who shall swear and execute the Administration Bond on Application for Re-sealing Form as a deed, and the application is published in a local newspaper. After re-sealing the grant, the Probate Registrar shall send notice of the re-sealing to the court that made the grant.

LETTERS OF ADMINISTRATION (WILL ATTACHED)

Where the testator died testate but there is no executor to prove the Will, then letters of administration (Will attached) is required.

This may arise under the following circumstances –

1.      Where there is no executor appointed for the Will.

2.      Where the sole executor is an infant, a person of unsound mind or is incompetent due to other disabilities.

3.      Where the sole executor renounces the Will or he refused to neglect to respond to a citation to accept or refuse to take grant.

4.      Where the testator appointed a sole executor who predeceased the testator or died before proving the Will.

5.      Where the executor or all the executors are abroad and they jointly appoint an attorney to take out the grant.

APPLICATION FOR GRANT

The applicant must satisfy the Probate Registrar about the reason or reasons for the absence of the executor, therefore where it is alleged that the executor is dead, or he renounced his executorship, or he is an infant, or he is abroad and has appointed an attorney to apply for the grant, this fact must be proved by tendering the relevant document or documents. Thereafter, the Probate Registrar shall inspect the Will to ensure that it was properly executed and attested.

The following forms are issued to the applicant or applicants for completion and return –

1.      An application for letters of administration.

2.      An inventory.

3.      A statutory affidavit of next-of-kin.

4.      An oath for administration (Will attached).

5.      An administration bond (Will attached).

6.      Justification of sureties.

7.      Renunciation of administration (Will attached).

8.      Bank certificate.

9.      Particulars of freehold/leasehold property left by the deceased.

10.  Schedule of debt due by the deceased and the schedule or funeral expenses.

11.  Passport photographs of the applicants.
    

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LIMITATIONS ON THE TESTATOR

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 1^st 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 1^st 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.

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LEGACY

This means a gift of personal property effected by Will, or an amount of money or property left to someone in a Will. Thus, it is said to be a gift. Where gifts are movables or personal, they are referred to as legacy or legacies. The person whom a legacy passes to is called a “legatee” or “beneficiary”. Where it is a gift of immovable or interest in land, it is referred to as a device, and the beneficiary as a “devisee”.

TYPES OF LEGACIES

The types of legacies we have are –

1.      Specific legacy.

2.      General legacy.

3.      Demonstrative legacy.

4.      Pecuniary legacy.

5.      Absolute legacy.

6.      Alternate legacy.

7.      Accumulated legacy.

8.      Contingent legacy.

9.      Modal legacy.

10.  Residuary legacy.

11.  Conditional legacy.

12.  Annuity.

SPECIFIC LEGACY

Specific legacy is a distinguishable gift from other properties that form part of the testator’s estate. Under such legacy, the gift should be sufficiently described as to be distinguishable from other properties of the testator. It may be indicated by the use of the word “MY” followed with the detail description of the gift.

For example –            

“I give My Note of week fifteen to my friend, Henry”.

It is specific because it describes the gift in a specified term which is distinguished from others. If a court has to construe whether or not a particular gift is a specific gift, it will usually lean against finding that it is and will prefer to find that it is a general legacy because specific legacies are liable to fail by ademption, although they hold a more privileged position than general legacies where the estate not is sufficient to meet all the gifts in the Will. Thus, the problem with a specific gift is that it fails by ademption where the gift cannot be found at the death of the testator. Therefore, the testator should make a substituted gift.

GENERAL LEGACY

This is a general legacy which unlike a specific legacy refers to any particular piece of the testator’s estate. Thus it is not defined or identifiable.

For example –            

“I give My Note to Henry”.

It must be noted that the use of the word “MY” in reference to the gift does not convert it to a specific legacy. What determines if it is a specific or general legacy is whether is describes the legacy or not. Thus, a specific legacy is – a gift plus description; whilst a general legacy is – a gift without description.

The general legacy does not fail by ademption in the same sense as it applies to a specific legacy. In Whitehead v. Street (Re Whitehead) (1913) 2 Ch. 56, it was stated that if the estate of the testator is insufficient to pay all the legacies in full, the general legacies must abate in equal proportion.

DEMONSTRATIVE LEGACY

Demonstrative legacy is one that is to be paid out of or to be received from a specific source or fund or pool of property. Thus, it is a gift of a certain sum of money with a direction that the money be paid from a particular fund. For example, a gift of a sum of money to be paid out of a particular bank account to the legatee. In Re Webster (1937) 1 All ER 602, a gift of sum of money to be paid out of the testator’s share in the family business was held to be a demonstrative legacy.

Demonstrative legacy is like a specific legacy in that the testator describes the gift but goes further to designates the source or fund from where the gift can be realised.

For example –            

“A gift of N1,000,000,000 (One billion naira) to be paid out of my account with Swiss Bank to Henry”.

In Watford v. Watford (1912) AC 658, the testator gave to his sister a sum of money to be paid out of the estate and effects inherited by him from his mother. The court held that the legacy was demonstrative irrespective of the fact that it was to be paid from a sum to be received later.

A demonstrative legacy is – a gift plus description plus source. Demonstrative legacy do not fail by ademption.

PECUNIARY LEGACY

A pecuniary legacy is a gift of a sum of money in a Will. It may or may not specify where the money is to be drawn from.

ABSOLUTE LEGACY

An absolute legacy is a gift made in a Will that is not subject to any condition but vests automatically or immediately in the legatee.

ALTERNATE LEGACY

An alternate legacy is a gift where the legatee is given the opportunity to choose between two or more properties amongst the assets in the estate.

ACCUMULATED LEGACY

An accumulated legacy is a gift in a Will that is yet to be given out to the beneficiary. And until the legacies are given out as directed by the testator, they remain accumulated.

CONTINGENT LEGACY

A contingent legacy is a gift made in a Will that depends on an uncertain event to vest in the legatee.

For example –            

“A gift of My Note to Henry when if Arsenal wins premiership”.

This means that until Arsenal wins premiership, Henry is not entitled to the gift.

MODAL LEGACY

A modal legacy is a gift accompanied by directions as to how it will be applied to the benefit of the legatee.

RESIDUARY LEGACY

A residuary legacy is a gift of part of the estate that remains after the settlement or satisfaction of debts and expenses after the testator’s death.

The Will should provide for a residuary clause to give direction on how the residuary legacies are to be dealt with. Residuary clause will usually pass whatever remains in the estate after the discharge of all claims against the estate and the satisfaction of legacies made in the Will to beneficiaries. They include any gift that fails or those properties the testator may acquire after making the Will.

The legal consequences of a Will that fails to provide for a residuary clause is that it creates a situation of partial intestacy. This means that the testator died leaving a Will in respect of some matters and no Will in respect of other matters.

The executors must exercise due care and diligence while the residuary legacy remains unascertained – Re Tankard, Tankard v. Midland bank Executors and Trustees Co. Ltd (1942) Ch. 69. Also, the residuary legatee is not entitled to any particular assets in the estate of the deceased until the residue is unascertained – Lord Sudeley v. A.G (1897) AC 11.

CONDITIONAL LEGACY

A conditional legacy is a gift that becomes effective upon the occurrence or non-occurrence of a specified event. In Hickling v. Boyer (1851) 42 ER 404, a gift of leasehold to a beneficiary subject to the payment of rents and the performance of the covenants reserved and contained in the lease agreement was held to be a conditional legacy and that the beneficiary was equally liable to reinstate the demised premises pursuant to the covenant in the lease on the part of the testator.

The beneficiary cannot be compelled to fulfil the condition where he renounces the gift just that he cannot accept the gift and reject the condition – Long v. Kent 12 LT 794.

ANNUITY

An annuity is a gift of a specified sum of money to be paid out to a designated recipient periodically or series of legacies made payable at intervals – Re Earl of Berkley (1968) 3 All ER 364.

CIRCUMSTANCES UNDER WHICH LEGACIES OR GIFTS MAY FAIL

There are two circumstances or instances under which legacies or gifts may fail –

1.      Ademption;

2.      Lapse;

3.      Abatement; and

4.      Gift to a witness or spouse.

ADEMPTION

This is instances where a gift ceases to exist at the time of the death of a testator. This is due to gift or legacy being destroyed, sold or as a result of bankruptcy, etc.

However, in circumstances where the subject matter is substantially the same, a mere change in the name or form of the subject matter of the gift does not adeem the legacy.

To avoid ademption in specific gifts, the testator should be advised to make alternative or substituted gift to the beneficiary.

For example –            

“I give to Gram my Lincoln Navigator with Reg No. LA 3311 IKJ and if I do not at my death own the said car to satisfy this gift, I give to Gram in lieu the sum of N500,000,000 (Five hundred million naira).”

LAPSE

This is a situation where a gift fails because the legatee dies before the testator, or where in the case of a company as a corporate body, the company ceases to exist.

There are, however, exceptions to the principles of lapse. They are –

1.      A testator can make a substitutional gift to the beneficiary’s children or representatives in order to avoid the principle of lapse.

2.      The principle of lapse does not apply where the gift is made to joint tenants, or the gift is a class gift since the gift goes to the remaining tenants or members of the class.

3.      A declaration against the application of lapse but which must be accompanied by a substitutional gift.

4.      The provision of section 24 of the Wills Law of Lagos State which provides that where a person being a child of the testator who has a disposition in his favour dies in the lifetime of the testator, but has a child or issue who is living after the death of the testator, the disposition to the person shall not lapse. Rather, it shall take effect as if the death of the person had happened immediately after the death of the testator. The doctrine means that the beneficiary is deemed or presumed to have died immediately after the testator and thus make the gift the absolute property of the beneficiary for which he can pass it after his death to his child or issue.

REVOCATION OF A WILL

This is one of the possibilities by virtue of the nature of a Will. However, it must be voluntarily or involuntarily done.

There are several ways by which a Will can be revoked. They are –

1.      Revocation by another Will or codicil.

2.      Revocation by destruction (animus revocandi)

3.      Revocation by subsequent marriage.

REVOCATION BY ANOTHER WILL OR CODICIL

The preparation and execution of another valid Will revokes a previous one – section 20 of the Wills Act. However, for a latter Will to revoke a previous one, it must be clearly shown that the testator had the requisite intention to revoke the previous Will. Such intention can be gathered from the contents of the latter Will which will clearly state in its opening paragraph that all previous testamentary dispositions made by him are thereby revoked. In Henfrey v. Henfrey 13 ER 211, the testator disposed of his property in two conflicting Wills with each seemingly validly executed. The latter Will was made a year after the former was made. The latter Will did not contain any clause stating that the former Will was revoked. It was implied that the latter will impliedly revoke the former.

A Will may also be revoked by a codicil which expressly states that it is revoking the Will to which it relates.

REVOCATION BY DESTRUCTION

Another way by which a Will can be revoked is outright destruction. However, for revocation by destruction to be valid, two things must exist namely –

a.       There must be actual destruction; and

b.      There must be intention to destroy.

Where there is actual destruction, the destruction must be total and the Will must be completely destroyed in a manner that it cannot be retrieved. Such destruction could be burning, tearing into shreds or other means of complete destruction and not mere squeezing.

Where there is intention to destroy, there must be the requisite intention to revoke the Will as destruction without intention to revoke cannot revoke a Will. In Cheese v. Lovejoy (1877) 2 PD 251, per Justice James, he stated thus –

“All the destroying in the world without intention to revoke will not revoke a Will nor will all the intention in the world without destroying.”

Both elements of destruction and intention must exist. Apart from burning, tearing or other way of destruction by the testator himself, some other person may in his presence and by his direction destroy the Will with the intention of revoking it. Symbolic destruction is therefore not sufficient to revoke a Will – Stephen v. Taprell 163 ER 473. Also, a Will is not revoked if mistakenly destroyed – In Goods of Thorton (1889) 14 PD 82.

REVOCATION BY SUBSEQUENT MARRIAGE

This is another way by which a Will can be revoked – section 18 of the Wills Act. A subsequent marriage after the making of a Will revokes the Will. What this means is that if a man or woman makes a Will and later gets married at a future date after the making of the Will, such a Will stands revoked by operation of law. For a marriage to revoke a Will, such a marriage must be a statutory marriage or a marriage under the Act. It therefore follows from the foregoing that Customary/Moslem marriage or a marriage according to native law and custom cannot revoke a Will.

LOSS OF A WILL

Loss of a Will does not necessarily amount to revocation. Where a Will is lost or destroyed in such a way that it does not amount to revocation, probate may be granted of the contents of the Will upon proof of such content and attestation of the Will. In Sugden v. Lord St. Leonard (1876) 1 PD 154, oral testimony of the daughter of the testator as to the contents of her father’s lost Will was admitted in evidence as proof of the contents of the Will.

It should be noted that the evidence of a solicitor that prepared the Will may establish due execution and attestation – Re Hannah (1954) NZLR 836. The contents of the Will may be proved from the instructions to the solicitor – Funcham v. Edwards (1842) 3 PD 1. The contents can also be proved by the evidence of an attesting witness to the Will. It does not matter that the attesting witness is an interested party. All that needs to be ascertained is whether the evidence of the witness is credible. Once the evidence is adjudged credible, it will be admitted – Sugden v. Lord St. Leonard (supra).

EXCEPTIONS OF REVOCATION OF A WILL

There are several exceptions to revocation of a Will. These are –

1.      Void marriage.

2.      Marriage under native law and custom.

3.      Wills made in contemplation of marriage.

4.      Wills made in exercise of power of appointment.

5.      Wills made before celebration of marriage under the Act between parties legally married under customary law.

VOID MARRIAGE

A void marriage is not a valid marriage under the law. Thus, does not have the legal potentials to revoke a Will. A marriage is void where for instance, at the time of the marriage, either of the parties was legally married to another person.

An order of nullity need not be made for the effect to take place. In law, it is deemed as having not existed. However, once an order of nullity is made, it has retrospective effect and the marriage is considered as being void ab initio. In Mette v. Mette (1859) 1 Sw & Tr. 416, where the testator married the younger sister of his late wife, the marriage fell under the prohibited degree of affinity. It was held to be void and thus not capable of revoking the Will made before the marriage to the younger sister of the late wife. The Will was held to be valid.

MARRIAGE UNDER NATIVE LAW AND CUSTOM

Customary/Moslem marriage or a marriage according to native law and custom cannot revoke a Will.

In Jadesimi v. Okotie Eboh (1996) 2 NWLR (Pt. 429) 128, the defendant married in 1942 according to Itsekiri native law and custom. In 1947, he made a Will and in 1961, he remarried the same woman under the Act. The issue for determination was whether the marriage of 1961 revoked the Will made by him in 1947. The Supreme Court held that it is common practice in Nigeria for marrying parties to undergo two forms of marriage. The first was under customary law in adherence to the custom of their forefathers, and a statutory marriage in adherence to the Marriage Act. That it is never intended that the marriage under the Act should nullify the customary marriage but to supplement it. The Will was therefore not revoked by the subsequent marriage Act.

WILLS MADE IN CONTEMPLATION OF MARRIAGE

A Will made in contemplation of a marriage will not be revoked by the same marriage contemplated. This is where a Will is made by a testator before his marriage and at the time of making the Will, he or she was in a relationship with the opposite sex with the hope of getting married to that person, and if he makes the Will to the same person and eventually gets married to the same person, the Will made before the marriage will not be revoked by the marriage.

Section 11(b) of the Wills Law of Lagos State provides thus –

“Every Will made by a man or woman shall be revoked by his or her marriage (other than a marriage in accordance with customary law) except –

(a)      A Will expressed to be made in contemplation of the celebration of that marriage:

Provided that the names of the parties to the marriage contemplated are clearly stated”.

Thus, a Will made in contemplation of marriage is not revoked by that marriage provided it can be gathered from the content of the Will that it was made in contemplation of that particular marriage. In Re Langston (1953) 1 All ER 298, the testator made a Will in November 1935 in which he gave all his property to his named fiancée and in December 1952 he died. It was held that the Will was not revoked because it was made in contemplation of a marriage, and the marriage was to the same person named in the Will as sole beneficiary. The Will was therefore valid.

WILLS MADE IN EXERCISE OF POWER OF APPOINTMENT

Powers of appointment are powers given under some settlement or trust authorising the donee to make an appointment of some or all of the trust property.

An appointment may be made in which a donee of the power is authorised in inter vivos settlement or a trust or even in a Will – Re Beatty (1901) 1 WLR 1503, to appoint a specified donee amongst given objects including himself (the donee) – Re Penrose (1933) Ch. 793. The donee may be limited as to the class of persons that falls within the object of the power – Re Park (1932) 1 Ch. 58, or allowed wide discretion to make the appointment.

This power of appointment can be exercised by the donee either in a Will or by deed. Where the power is exercised in a Will made by the donee, whether marriage will revoke such appointment in circumstances where it ordinarily revokes a Will, depends on the provisions of the applicable Wills Law.

For example, section 18 of the Wills Act, which provides thus –

“Every Will made by a man or woman, shall be revoked by his or her marriage except a Will made in exercise of a power of appointment, when the real or personal estate thereby appointed would not in default of such appointment pass to his or her heir, customary heir, executor, or administrator, or the person entitled as his or her next-of-kin, under the statute of distribution...”.

And section 11(a) of the Wills Law of Lagos State which provides thus –

“Every Will made by a man or woman shall be revoked by his or her marriage (other than a marriage in accordance with customary law) except –

(b)      A will made in exercise of a power of appointment which the property thereby appointed would not in default of such appointment pass to his or her heir, executor or administrator or the person entitled as his or her next-of-kin under any written law relating to the distribution of the estate of person dying intestate.”

Thus, if the property so appointed in the Will, will not in default of that appointment pass to the person entitled, or to the heirs, executors, or administrators of the testator, under the relevant rules of intestacy, the appointment made in the Will, will not be revoked by marriage contracted by the testator after the making of the Will in which the power of appointment is exercised.

WILLS MADE BEFORE CELEBRATION OF MARRIAGE UNDER THE ACT BETWEEN PARTIES LEGALLY MARRIED UNDER CUSTOMARY LAW

This exception is a creation of the Supreme Court of Nigeria and not one provided for under the Wills Laws or Act.

Where parties who had been legally married under native law and custom undergo another form of marriage under the Act by going for another marriage (a fresh marriage) under the Marriage Act, the Supreme Court has held that this second form of marriage does not revoke a Will made, by any of the parties prior to the celebration of the new marriage. To the Supreme Court, this is not a new marriage – Jadesinmi v. Okotie-Eboh & Ors (1996) 2 NWLR (Pt. 429) 128.

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