Outcomes

At the end of the lesson, students would be able to:

1. Explain the meaning of a will including codicil
2. State types of wills
3. Explain the reasons (advantages) for making a will
4. Explain persons that can make a will
5. Explain the principle of due execution of a will
6. Explain effect of being a witness in a will
7. Explain capacity of a testator to make a valid will -- testamentary capacity
8. Explain how to prove a will or establish the validity of a will
9. Identify ethical issues arising from proof of a will

 

Contents

1. Meaning
2. Types of wills
3. Rationale for making will
4. Who can make a will (testamentary capacity)?
5. Conditions for validity (Due execution)
6. Testamentary capacity
7. Proof of validity of a will

 

Meaning of a will

A testamentary document voluntarily made by a person with a testamentary capacity and executed according to law, by which he distributes his estate and gives further instructions to be carried out after his death. A person’s declaration of his intention of how his property is to be dealt with after his death  - see Okelola v Boyle

Once there is any evidence of mistake, undue influence,fraud, the will is no longer a will. 

 

Features of a will

1. It must be in writing: a will that is not in writing is not valid as a statutory will, (except privileged and nuncupative wills) 
2. It is testamentary in nature – takes effect upon the death of the maker. If the document is not testamentary, it is not a will. Opposite to testamentary is inter vivos. A will is not the only type of testamentary document there is but for a document to be a will it has to be testamentary, s 24 Wills Act
3. It is ambulatory – this means it is inchoate and can be altered pending the time the testator dies. It is revocable and amendable
4. It must be voluntarily made
5. The maker (testator/testatrix) at the time of making the will must possess the requisite testamentary capacity - corpus mentis i.e.  (sound disposing mind).

Unless the testator has the mental capacity to make a will it will not be valid – Sound disposing mind. There must not be any restriction on his testamentary freedom – freedom to make a will.

6. It must be executed according to the law: For a will to be valid it must be duly executed in accordance with the provisions of the law - s9 wills act 1897- otherwise it is invalid ab initio.
7. It must contain dispositive provisions – a provision of the will that makes a gift of ones property. If the document does not dispose of at least one property it is not a will. A gift of at least one property must be made.
8. A will may give further instruction, but it is not compulsory so its not a compulsory feature

 

Relevant terms in a will

Testator – a man who has made and executed a valid will

Testatrix – a woman who has made and executed a valid will

Codicil – this is a miniature will

Beneficiaries – those to whom gifts are made under a will

Executors: these are personal representatives – those who manage the property of a man who made a valid will. They enforce the instructions of the testator under the will.

Administrators – where a person makes a will but doesn’t appoint anyone to manage the property it will be by administrators and the person will be deemed to have died intestate.

Dispositive provision –a provision of the will that disposes a gift under the will

 

Types of wills

1. Statutory will –this is a will made under the relevant legislation or Wills Act/ law in a state. For states that don’t have a wills act, the wills act 1837 of general application apply.
2. Nun-cupative wills – these are oral directives that take effect upon the death of the person. These are wills made in accordance with native law and customs. They do not comply with the strict rules of statutes but the law still accommodates them because native law and customs are still applicable in Nigeria. For these types of wills to be valid certain conditions must be met:

• Made in the presence of at least two credible witness;
• Made voluntarily;
• Property and beneficiaries are specified and ascertainable (see Ayinke v Ibidunni)

3. Holographic will – it is handwritten, it is a form of statutory will which once written must comply with the law.
4. Privileged Wills – they are permitted to not comply with some of the strict conditions for validity of a will. See s.276 of the Armed Forces Act, Cap A 20 LFN, 2004; s.6 Wills law, Cap W2, Laws of Lagos state; s.11 Wills Act; s193 Air force Act

 

Applicable laws

• Wills Act, 1837
• Wills Act (Amendment) Act, 1852
• Wills laws of the various states in Nigeria – only Lagos state is relevant
• High court civil procedure rules of the various states
• Common law & principles of Equity
• Native Law & Custom (Customary Law)
• Armed Forces Act
• Case law (Judicial Precedents)

 

 

Advantages of making a will / functions of a will

1. Displaces application of customary rules of devolution, subject to Idehen v Idehen
2. Satisfaction of having ordered ones’ affairs - Reduces acrimony
3. Displaces the application of statutory rules of devolution, such as Administration of Estate Law, etc – see Cole v Cole
4. Affords testator an opportunity to benefit loved ones
5. It affords a person the opportunity of appointing a guardian to take care of the infant children and offer burial instructions, directives relating to funeral – this is not wise because in most cases the person is buried before the will is even read. This is because no application for probate shall be made until 7 days after the death of a person and in some jurisdictions 14 days. It is therefore wise for the testator to leave such instructions/directives relating to burial in a separate document sealed and given to a younger friend to be opened upon his death.
6. Making a will is more advantageous because since the executors derive their authority directly from the will they are entitled to begin to take necessary steps as regards to management of the testator’s property immediately upon the testators death without waiting for the grant of probate unlike where the man dies intestate – Ojokwu v Kaine (1997). Where a person dies intestate, authority to manage his property is derived from the grant of letters of administration and these letters are not given immediately, it may take as long as 6 months, and no one is entitled to take steps as regards to his property. There is however an exception where the goods are perishable.
7. There is continuity in administration of an estate covered by a will.
8. Administration of testate estate is cheaper than administration of intestate estate
9. Testator may express personal opinions/ feelings.

 

Who can make a will? (Testamentary capacity)

Every adult with sound disposing mind (see Apatira v Akande (1944)), including old people, sick people, blind , Muslim or Christian.

Infants (persons under 21) generally cannot make a will – s 24, Wills act 1837. But in Lagos, it is 18 years – s 3 wills law, Lagos.

Sound disposing mind – Mental capacity to understand what you are doing

 

Exceptions to testamentary capacity

Privileged wills – see s11, wills act, 1837 & s.6 Wills law, Lagos. E.g. wills for men in active military service, crewmen in an aircraft, Sea men on duty

Note special requirements for blind persons --- jurat

If an illiterate is a witness to a will, is it necessary for a jurat to be executed? – A witness doesn’t need to understand the contents of the will, he just needs to be there to witness that he saw the testator execute it. They’re attesting to the signature of the testator so there is no need for an illiterate jurat. A blind person however cannot witness a will because he didn’t see him sign.

 

Other elements of testamentary capacity

Testator must have mental capacity (sound disposing mind) –

• At the time of issuing instructions and
• At the time of executing the will

See Okelola v Boyle

So the requisite mental capacity must subsist at both times

 

There is a presumption of mental capacity until the contrary is proven .

Omnia praesumuntur rite et solemniteresseacta (presumption of regularity) – see Egharevba  vOrunghae; In Re Randle

This is rebuttable: Croft v Croft;Noding v Alliston

Doubts are resolved in favour of the will. In the estate of Re Randle– note this is a different case from Re Randle

It cannot be rebutted except on the production of positive credible evidence. The burden of proving this is on the person claiming there was no mental capacity.

But see Cartwright v Cartwright – presumption as to serious mental illness

Soundness of mind must be distinguished from state of bodily health (FAG V JOHNSON (1960) LLR 292)

Now see Banks v Good Fellow for test of mental capacity

 

How do you determine if he possesses requisite mental capacity?

The test of mental capacity was laid down in Banks v Good Fellow as follows –

• The testator must understand the nature of the act;
• Must understand the extent of the property he is disposing of
• Must understand the claims on him
• The manner in which the property is distributed must be rational

If any of these questions is answered in the negative the will be taken to be invalid on grounds of lack of the requisite mental capacity on the part of the testator.

 

The rule is that the testator must possess the requisite mental capacity at the time of giving instruction and at the time of execution. If after issuing instructions but before the time of executing the will he loses mental capacity the will is invalid because the rule has been broken – the material time for possessing mental capacity is at the time of giving instruction and at the time of execution.

 

Exception to the rule

Where a testator who had a sound disposing mind at the time of giving out instructions later loses such sound disposing mind to the extent that he no longer has a sound disposing mind at the time of executing the will, such will may still be declared valid and admitted to probate if the following 5 conditions are present:

1. That the testator had a sound disposing mind at the time of giving out the instructions
2. That he gave out the instructions directly to a legal practitioner
3. That he didn’t give out the instructions through any intermediary or third party
4. The lawyer in drafting the will followed the instructions religiously – he complied with the instructions strictly.
5. Even though he has lost mental capacity at the time of executing the will, the testator was still able to understand the nature of his act – the act of executing the will. This is satisfied if the man is able to recollect that he is just signing his will in respect of which he had earlier given some instructions, even though he is no longer able to understand the extent of his property and who the beneficiaries are. – SeeParker v Feltgate

“Testator gave instructions directly to his solicitor at a time he (testator) was mentally capable, &

The solicitor complied strictly with the instructions, then it does not matter if the testator subsequently loses his mental capacity, provided he understands at the time of execution that he was executing his will for which he has earlier given instructions- Parker v Feltgate”

This situation must be distinguished from the facts of Singh vArmichand (1948) 1 All ER 152 – in this case the instructions was given at the time when the testator had mental capacity through an intermediary to the solicitor, as such there is the possibility that the contents of the will may have been tampered or interfered with.

 

Precautionary measures to establish mental capacity

See Re Walker (1912) – a legal practitioner should be made to confirm in writing the testamentary capacity of testator

See also Kenward Adams (1975) – Precautions for aged testators

See generally Okelola v Boyle – everything depends in the fact of each case

 

VALIDITY OF A WILL

For a will be to be valid -

• Testator must have testamentary capacity
• Must have acted voluntarily
• Will must be in writing
• Will must be executed in accordance with section 9 Wills Act, 1837
• There must be no restrictions on capacity/ testamentary freedom

 

Mode of execution of a will (it must be executed in accordance with s.9 wills act)

• Testator may execute personally in the presence of two witnesses; or
• In case of pre-signed will, he must acknowledge his signature in the presence of at least two witnesses; or
• May delegate another person to sign for him
• See Onwudinjo v Onwudinjo; Apatire v. Akande; Groffman v Groffman
• Note that blind person cannot be a witness to a will – In Re Gibson

 

There are three ways of executing a will in order for it to comply withs.9 of the statute

1. The testator may choose to sign the will personally. For the signature to be valid (conditions for validity of personal signing):
2. Such personal signing must be done in the presence of at least two credible adult witnesses
3. The two or more witnesses must be present at the same time while the testator is signing or during the signing.
4. Each of the witnesses sign the will or attest the will in the presence of the testator
5. The witnesses need not sign the will in the presence of each other.

 

2. Where the testator has already signed the will in private (in the absence of the witnesses), he must acknowledge his signature in the presence of at least two witness (none of whom must be blind) who must be present at the same time during the acknowledgement and who must in turn each sign/ attest to the will/ subscribe in the presence of the testator but they (the witnesses) need not sign in each others presence.

 

3. The testator may appoint someone else to sign the will on his behalf. But the following conditions have to be met for this delegated signing to be valid:

• The appointed delegate must sign the will in the presence of at least three persons namely the testator and at least two other credible adult witnesses (the testator and the two other witnesses must be present at the time the delegate is signing – so there will be at least 4 persons present during the signing)
• All the three people must be present at the same time when the delegate is signing
• Each of the witnesses must attest to the will in the presence of the testator (so the delegate can leave after he has signed, he need not be there when the witnesses are signing)
• The witnesses need not sign the will in each other’s presence

 

Documents incorporated into a will

Document not executed as a will, but referred to in a will, are valid as part of the will, subject to the following conditions –

• Such document must be in existence at the time of executing the will
• The will must clearly identify the document
• The will must refer to the document as already in existence

 

Privileged Testators

They are exempted from provisions of s 9 wills act – see s.11 Wills Act 1837 & s 6 Wills Law, Lagos. See also s276 Armed Forces Act 2004; s193 Air Force Act. Note that privileged wills relate only to money and personal property (Personal property refers to chattels, movable property. It doesn’t extend to landed property) 

 

The Wills Act 1837 said that for a will to be valid it must be signed at the foot of the will, you can’t sign anywhere else. Otherwise the will is invalid in its entirety. If anything comes after a signature the will is invalid.

The Wills Act Amendment Act 1852 came to amend the wills act as to that provision.It states that the position of the signature is immaterial, it solely must appear, s 1 amendment act 1852; s.4(1) wills law Lagos; In the Goods of Osborne. However whatever comes after the signature would not be valid to make a disposition. So the will would still be valid but any gift or instruction made below the signature would be invalid. See Re Howell

 

Alterations in a will; S 21 Wills Act

• Must be counter signed in line with s.9 wills act. So the alteration must be executed in the same way the will was originally executed. It need not be the same two witnesses; the important thing is that the alteration is re-executed for the alteration to be valid.
• Otherwise alterations has no effect and the original will would stand
• Where the part altered is not apparent to the ordinary eyes, the part is deemed revoked.

Note its better to make a new will than to alter, as the later will would prevail and revoke the earlier will.

 

Proof of validity of a will/ how do you prove a will is valid?

• Presumption of regularity
• Proof of due execution
• Presumption of sound mind
• Positive affirmative evidence

Note: He who challenges the validity of a will is called a challenger, he who supports the validity of a will is called a propounder. The onus is on the challenger to produce credible positive evidence to prove. The standard of proof is balance of probability or preponderance of evidence. However where e.g. fraud is alleged the standard would be beyond reasonable doubt as it’s a criminal offence.

 

Positive affirmative evidence includes the following:

• Evidence the testator made the will himself (Cartwright v Cartwright)
• Evidence of attesting witness, with corroboration – Adebajo v Adebajo
• Medical evidence –Boughtonv knight; Okelola v Boyle
• Evidence of testators conduct before and after making the will
• Evidence of general habit and course of life of the testator –Adebajov Adebajo
• Evidence of a Legal Practitioner that the man had mental capacity before he executed the will

 

Ethical & professional responsibility of a lawyer engaged or involved in the process of making a will

• Must take full instructions from the testator;
• Must take instructions in his (lawyers’) office. Note the exceptions - rule 22 RPC;
• Must be meticulous so as to include all relevant properties;
• Exercise Diligence & dedication to the service of the client – rule 14 RPC
• Duty of care
• Duty of professional secrecy & privilege (not to disclose confidential communication) Rule 19 RPC;
• Duty to render honest and candid advice;
• Fiduciary duty – to act bona fide, in honesty, in the best interest of the client.rule 23 RPC
• Duty to act within the bounds of law – avoid fraud, sharp practices, etc.rule 15 RPC
• Duty to avoid conflict of interest – suspicious circumstances,etc. Rule 17 RPC
• Duty of honesty and transparency;
• Duty to charge adequately but not excessively – rule 48 RPC
• To draft the will to professional standard
• To advise the client on the need for residuary clause ……

 

For bar part 2 – this topic will only cover Abuja and Lagos

Note: Where there is an illiterate executor there must be an illiterate jurat, but where there is an illiterate witness an illiterate jurat isn’t needed.

See s4 of will law

If the document (the written down instructions) is executed in compliance with s 9 then it can apply as a will. However it is not so duly executed then it cannot be saved.