The Black’s Law Dictionary, 8th edition by Bryan A. Garner at Page 1628 defines a Will as ”As a document by which a person directs his or her estate to be distributed upon death”. The Gilbert Law Dictionary (1997) at page 355 defines Will as, ”A person’s declaration of how he wishes his property to be disposed off after his death”. Also Kola Abayomi, in his book, Wills: Law and Practice; Mbeyi & Associates (Nig.) Ltd (2004), defines Will as ”a testamentary and revocable document, voluntarily made, executed and witnessed according to law by a testator with sound disposing mind wherein he disposes of his property subject to any limitation imposed by law and wherein he gives such other directives, as he may deem fit to his personal representatives otherwise known as his executors, who administer his estate in accordance with the wishes manifested in the Will”.
These show that a Will is a document by which a person directs how his or her estate is to be distributed or administered after his death. It also shows that an individual is at liberty to decide how to dispose of his property after death.
There are many ways one can dispose of his bounties after his demise. Both the statutory and customary law have prescribed ways for disposition, management and administration of a deceased person’s property which is through the instrumentality of a Will. The sole aim, is to ensure the passing of the property at the death of a person. Worthy of note is the facts that a Will is testamentary (that is a written statement or instrument); it is revocable while the maker is alive; it must be voluntarily made by the testator when in a sound mind; and must be executed and witnessed to according to law.
NATURE OF A WILL
A Will speaks from death; It is ambulatory or testamentary; It is of no effect until the death of a testator. While the testator lives, the Will is revocable, he is free to alter, amend, cancel or even destroy it. No beneficiary can take any interest in the property disposed by a Will until the death of the testator. Also, since a Will is ambulatory in nature, the gift to a beneficiary who predeceases the testator will lapse.
This rigid position of the Common law has been remedied by relevant States Wills Laws to the effect that if a property is given to a child or other issue of the testator, who dies before the testator, the devise or property shall not lapse but shall take effect as if the death of such a person had happened immediately after the death of the testator. There are ways a property or gift can be passed on to one another. It can be ‘inter-vivos’ , that is, to take effect while the parties (the giver) is alive as opposed to gift made, ‘causa mortis’ or in contemplation of death.
TYPES OF WILL:
i. Statutory Will; This is a Will made in accordance with the provisions of the Statutes in force such as Wills law of a State. Such Will must conform with the requirements prescribed by the law to be valid and for the court to give efficacy and grant probate. It is the most efficacious form of Will as long as it complies with the requirements of the law.
ii. Nuncupative Will; This is an oral directives of a person made in contemplation of death before credible witnesses. Such Will is enforced with the consent of the testator’s family. It is important that such Will is made when the maker is in good health and not on his death bed.
iii. Settlement Inter-Vivors; This is a gift contained in a Will.
A testator may convey his property to trustees to hold for himself (the Settlor) for life with the remainder to a beneficiary. It is expected that the beneficiary survives the settler. Unlike a Will which is revocable and testamentary and a beneficiary needs to survive the testator for the Will to take effect, in Settlement the interest of the remainder vest immediately and if the beneficiary predeceases the Settlor, provided he had not revoked the settlement, the beneficiary’s interest will form part of the beneficiary’s estate. It is advisable that one opts for inter- vivors outright gift instead of testamentary disposition especially where the Will is likely to be contested, stolen, destroyed or otherwise tampered with.
ADVANTAGES OF MAKING A WILL
a. It displaces devolution by Customary Law; Every Nigerian belongs to one tribe or the other and
with established customs for devolution of property. Except a deceased left a Will, his property could devolve to persons according to custom outside his wish or contemplation. b. It Displaces Devolution by Statute: The Marriage Act and the decision in Cole v Cole prescribes the rules of inheritance and the way and manner the property of a deceased can be shared. To avoid this, the deceased can displace the prescribed rules of inheritance and mention specifically who he wants to benefit from estate through his Will.
FEATURES OF A VALID WILL
A Will is a product or creation of Statute. A valid Will is a Statutory Will and must comply with the provisions of the relevant laws for it to be valid that is, there must be proper and due execution. These include;
(i). It must be in writing;
(ii) It must be voluntarily made;
(iii). Must be of sound mind at the time of making the Will;
(iv). It must be maker;
(v). The signing of the Will by the testator must be witnessed by two adult witnesses both of whom must be present at the same time;
(vi). The two witnesses must both append their signature in the present of each of them and the testator. These are first line of defence against fraud upon the dead. However where there is suspicion the burden of proof will fall on the party propounding the Will to satisfy the court that the instrument is the last Will of a free and sound minded testator.
DUE EXECUTION OF A WILL
When is a Will said to be properly executed? What constitute execution? The law insist on the requirement for a valid execution of a Will. In a state where there is no Local Wills Law, the English Laws of general application applicable in England by 1st January 1900 will apply. These are the Wills Act, 1837. Section 9 of the Act states that the Will must be in writing, signed at the foot or end thereof by the testator or by some other person in his presence and by his direction, or the signature acknowledged by him in the presence of two or more witnesses present at the same time who shall attest and subscribe the Will in the presence of the testator. This rigidity of placing the signature has been cured by the Wills Amendment Act, 1852 and the signature can be placed at, or after or beside or opposite or under so long as it is apparent on the face of the Will that the testator intended to give effect by such signature on the Will.
REVOCATION OF A WILL
A Will can be revoked by writing another Will or Codicil, by marriage and by destruction with intent to so destroy. a. Subsequent Will or Codicil: This could be by Express or Implied revocation. Express revocation of a Will can take the form of; ”I hereby revoke all testamentary documents previously made by me” being inserted in the final Will or Codicil. Implied revocation will occur if the later Will covers all the areas contained in the earlier Will. It will be implied that the later Will takes the place of the earlier Will.
Cancelations and Alterations in a Will:
A testator can alter, amend interlineate or obliterate his Wills provided it is done before execution. Such alteration should not be apparent as to make the original text visible. It is the requirement of the law that any alteration, interlineations must be executed and attested to the same manner a Will is executed and attested. That is by the testator signing and the witnesses attesting at the foot, end, opposite or close to the cancelation. The burden of proof is on the person seeking to rely on the alteration to prove that the cancelations were made before the execution of the Will.
Disputing a Will in Court:
Essentially, proceedings for the revocation of probate or the Will is a breach. This is because probate gives authority to the executors to act on the provisions of the Will. It follows therefore that anyone who takes steps to revoke probate tantamount to a breach. It is common for testators to be emotional about beneficiaries going to court over their Wills. To avoid this danger, testators should take proper legal advice before making a Will. For instance, a testator may prescribe people who the disputing parties could refer to or friends who could be the arbiters of first instance and in default.
PERSONS ENTITLED TO BE GRANTED LETTERS OF ADMINISTRATION
Among the persons entitled to grant of Letters of Administration include; Husband or Wife of the deceased, Children of the deceased or surviving issues of the children or child who died in the lifetime of the deceased; father or mother of the deceased; whole blood brother or sister of the deceased; half blood brother or sister of the deceased; grandfather or grandmother of the deceased; uncles or aunts of whole blood or their children; Creditors of the deceased; the Administrator general (where all the proceedings) fail.
REQUIREMENTS FOR PROBATE / LETTERS OF ADMINISTRATION
The following information is needed when applying for probate, these are; Name and address of deceased; Death certificate (indicating date and place of death); Date of Will; Survivors of the deceased; Particulars of deceased properties; Bank Name and Account Number; Name and address of next-of-Kin; Maximum of four and minimum of Two executors ; Copy of Acknowledgement letter from court. It should be noted that there are necessary forms, applications and sworn affidavit that are to accompany the application for grant of letter of administration.
PUBLICATION OF APPLICATION FOR GRANT
This is a 21- day Legal Notice in which an application for grant of Letters of Administration in respect of the named deceased estate is made known to the public. The aim is to alert the general public particularly the community or area where the deceased died within the jurisdiction of the court who may be interested in the deceased’s estate. It has the possibility of check mating the possibility of a fraud or deception on the part of the applicants. It also gives opportunity to anyone who wants to change the application to do so. The Application could be in multiple (cheaper), where all the applications are published in one advertisement or a single advertisement (a bit costly) where it is one application.
The court may refuse to grant Letter of Administration if it comes to the knowledge of the court that there is another person that has equal right to the estate of the deceased with the applicant unless such other right is waived within 14 days of the publication. After the publication if there is no ”Caveat or Notice to Prohibit Grant”, or was cleared or lifted, the applicant will file or declare inventory of both personal and real estate at the same time using appropriate set of probate forms and as would be directed by Probate Registry. To avoid litigations and attendant delays in committing a Will to probate, it s advisable to engage the services of a lawyer to guide and instruct in the execution of the Will right form to beginning. You have the right to decide what happens to all your sweat and labour after you are gone.
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