Outcomes

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

1. Mention types of legacies
2. Explain circumstances under which legacies may fail
3. Explain how a will can be revoked, and exceptions
4. Explain the revival and republication of a will
5. Identify ethical issues on legacies in a will and revocation of a will

 

Contents

1. Types of Gifts
2. Failure of gifts
3. Revocation of a will
4. Revival and Republication of Wills

 

Nature of gifts in a will

There are two classes of gifts in a will. Gift in a will may be either

• A device; or
• A legacy/bequeath

Device has to do with land while gift of any movable property is a bequest/legacy.

 

Major classifications of gifts

• Specific gift – Re Rose (1949) Ch 78
• General gift
• Demonstrative gift

Ashburner v. Macguire (1786) 1 Bro LL 108 – read this case for a clearer understanding of the classifications.

 

• Specific gift: when a gift is described in a will so as to make it easily ascertainable and identifiable it is said to be a specific gift. If there is doubt about the identity, nature or location of the gift, then it is not specific. Gift that is traceable is specific. Nature + particulars +direction = specific
• General – this is not identifiable, it only gives the nature of the gift. Whereas a specific gift would tell the nature, location and identity of the gift.
• Demonstrative – it gives the nature of the gift, it goes ahead to state where to find it – the direction – however upon getting to the direction it is not easily identifiable. Once an indication has been given that that’s the only thing they have there, its specific. Otherwise its demonstrative. Nature +direction – particulars = Demonstrative

 

Examples of Specific gifts

1. The house at 23, Agu Street, Ikoyi, Lagos to my wife;
2. My money in GTBankPlc to my wife;
3. My shares in Julius Berger Plc to my wife;
4. Toyota Camry Reg No 567 EKY, Lagos to my wife; and

 

Examples of General gifts

1. A Duplex to my driver, Joe
2. N2 million to my wife, Mercy
3. 10,000 shares in a reputable company to Sam, my cook;
4. A Toyota Camry car to my secretary, Ify;
5. A house to my second wife, Comfort.

 

Examples of demonstrative gifts

1. A Duplex along Hopewell Street, Victoria Island, Lagos to my driver, Joe
2. N20 million from my account at GTBank to my wife
3. 10,000 shares from my shares in Julius Berger Plc, to Sam, my cook;
4. One of my Toyota Camry cars to my secretary, Chy;
5. A house at Enefaa Chamberlain Estate, Lekki, Lagos, to my second wife, Comfort

 

Other Forms of gift

1. ANNUITY – a periodic gift -- Re Earl of Berkeley (1968) All ER 364

1. CONDITIONAL/CONTINGENT LEGACY--- to be taken on fulfillment of some condition(s) – the gift is only gotten once they fulfill a condition
2. Pecuniary Legacy – gift in the form of money– whether in cash, in Bank or otherwise;
3. Residuary gift – remainder of the estate. It is found in the residuary clause in a will – this clause gives directives on how to dispose of, manage or otherwise administer the properties that are remaining or left out after the various gifts in a will have been disclosed to their beneficiaries. Residuary gift is contained in the residuary clause. Residuary clause includes the following

1. All properties which the testator forgot to include in the will
2. All gifts that fail under the will

• Properties acquired by the testator after he had made the will

1. Gifts renounced by their beneficiaries. Note: renunciation of probate is different from renunciation of a gift.

 

ANNUITY

• Ten bags of rice to Obalende Motherless Babies Home, Lagos, every quarter of a year for ten years
• N30 million to each of my sons every year, for twenty years
• N2 million to Mr Jasper, the Principal of Achievers High School, Ibadan, annually for five years
• N2 million to the Principal of Achievers High School, Ibadan, annually for five years
• N1 million to each of the first 5 best-graduating students of the Nigerian law School, every academic session for ten years

 

PECUNIARY

• N2 million to my wife
• My money in GTBank to my wife
• N2,000,000 from GTBank to my wife
• N2,000,000 every year to my first son, for twenty years

 

Effect of absence of the residuary clause: may lead to partial intestacy. The implication is that his properties will no longer be subject to the wills act only. The rules of intestacy and customary laws and customs would still apply to them.

 

CONDITIONAL GIFTS

• N60 million to Samuel Dele of 12, AguStr, Ikoyi, Lagos, if he becomes a medical Doctor;
• N40 million to AkpanUtuk of 11, BuaStr, Ikoyi, Lagos, if he marries anyone of my daughters.

 

Failure of gifts

• Ademption– this relates to specific legacywhere the gift no longer forms part of the estate.Only specific gifts are subject to ademption. In other words, general gifts are not subject to ademption it has also been decided in a plethora of cases that demonstrative gifts are not subject to ademption. So if the gift is no longer in existence, it will adeem. If at the date of the death of the testator the property is no longer part of the property of the testator, it will be adeeemed.

It goes to the gift. The property must have disappeared and is no longer a part of the estate for it to be ademption. The property must have changed in character radically and fundamentally. Mere change in form doesn’t amount to ademption. If the property has changed name but is still the same, then it cannot be said to be ademption.

• Abatement –insufficiency of estate to provide the gift i.e. insolvency of estate.
• Lapse – Beneficiary died before the testator. 33, Will Act. – It goes to the beneficiary.
• Uncertainty of gift or beneficiary; public policy, promotes illegal purpose. Crime. Offends rule against perpetuity. A gift made in furtherance of an illegal purpose will fail. Also fraud on testator, a man cannot be allowed to benefit from his own fraud, or use the law as an engine of fraud.
• Disclaimer by the beneficiary – this is disclaimer of the beneficiary, renunciation.
• Attestation: 15, beneficiary /spouse is attesting Witness. Attestation by a beneficiary or his/her spouse. The gift would not stand so its better to give the person an inter vivos gift. One cannot be a beneficiary and attesting witness under the same will, and this extends to the persons spouse. There are however exceptions to this general rule: i) the person signed the will as a trustee, ii) the person signed the will but there were two more witnesses, so the two other witnesses would be counted for the purpose of satisfying the requirement of the law for due execution of a will, iii) where the gift given was in satisfaction/fulfillment of an obligation owed to the said beneficiary and attesting witness, iv) if the marriage between the witness and the beneficiary took place after the making of the will, the gift will not fail. So if they were not married at the time the will was made, the gift would be valid. v) If the gift made to a beneficiary who is witness in a first will is confirmed in a second will to which the beneficiary is not a witness to, the gift would not fail vi) where the gift is given for the benefit of another, so if he holds it in trust for someone else, the gift would not fail.
• 18 Wills Act -- marriage, divorce, annulment of marriage.
• Gift is conditional upon a condition not fulfilled
• Property not owned by the Testator – nemodat quod non habet
• Operation of law
• Conditional gifts
• Public policy/illegality
• Presence of other vitiating factors such as mistake, fraud, suspicious circumstances

Where there is more than one will in existence, they are not invalid and can both be admitted to probate if they are not inconsistent. However if they contain inconsistent provisions, the later will would take effect.

 

Factors that can cause failure of gifts in a will.

• Presence of vitiating factors/elements
• Ademption
• Lapse
• Public Policy/Illegal purpose
• Uncertainty
• Abatement
• Disclaimer
• Conditional gifts
• By operation of law
• Beneficiary/spouse attesting the Will

 

LAPSE – 33, Wills Act; 24, Will law, Lagos
Occurs where beneficiary predeceases testator

EXCEPTIONS to lapse:

1. Class Gift – JOINT TENANCY OR TENANCY IN COMMON: you can identify this by the words used – give to x,y,z in equal shares or equally indicates tenants in common and so the share of the  property belonging to the deceased will go the heir.  Where they are joint tenants, the rule of survivorship would apply and so the surviving two beneficiaries would share the property as if it was originally gifted to just them. Gift made to a class would not fail but rather would go to the living.
2. Substitutional gift
3. Gift made in settlement of debt owed, or promise made, by testator
4. Beneficiary is the testator`s child and died leaving an issue ---- Section 33 Wills Act, 24, Wills law (Lagos); 28 Wills Law (Western Nig); 26, Wills law (Abia);  Re Meredith
5. Residuary Clause

 

ADEMPTION
Ashburner v. MacGuire (1786) 2 Bro LL, 108; s. 24, wills Act

• Occurs where gift is not in existence at the time of testator`s death. Beneficiary will lose gift by reason of ademption in any of the following cases ---
  • Gift lost or sold before testator`s death
  • Property subject to contract
  • Property compulsorily acquired by the State: depends of time of acquisition --- Re Galway
  • Natural character of gift fundamentally altered or extinguished --- Re Kupyer
  • Property subject to option to purchase

 

Exception to Ademption

• Where property/gift has changed in form not in character;
• Change of name is not ademption;
• Acquisition, take-over, merger, etc, not ademption;
• Sub-division, consolidation of shares not ademption

 

Vitiating elements

1. Fraud – Wintle V Nye ;in Re a Solicitor (1975) Q B 475 ; Wingrove v. Wingrove; Wilkinson v. Joughlin
2. Suspicious circumstances – Okelola v. Boyle; In re a Solicitor
3. Mistake – Okelola v. Boyle; Hastilow v. Stobie (1865) 1 pt D 64.
4. - Undue Influence – Johnson v. Maja; Hall v. Hall; Parfitt V Lawless
5. Subsequent marriage- A will made by a single man, will be vitiated once he gets married
6. Date – not essential, but note the role

 

Undue influence

• Onus is on the challenger to prove – see Johnson v. Maja (1951); Craig v. Lamoureaux (1920)
• Persuasion is not undue influence –
• Inducement short of coercion is not undue influence --- Hall v. Hall
• Immoral considerations do not constitute undue influence ---Maja v. Johnson

 

Factors to consider where undue influence is alleged

• Was the Will duly executed?
• Was it a free exercise of testator`s volition
• Was the testator of sound disposing mind at the time of execution?
• Did the testator have knowledge of and approve of the contents of the Will

See Okelola v. Boyle

 

Suspicious circumstance

• Arises where fiduciary relationship exists
• Does not necessarily vitiate a Will/Gift
• Where raised, propounder must discharge the suspicion; otherwise will/gift would fail --- Okelola v. Boyle; Wintle v. Nye; In Re A Solicitor

 

Mistake

• Of fact, will void ---Hastilow v. Stobies; Okelola v. Boyle
• Of law, will not void

 

Beneficiary or his/her spouse witnessing a will

• Effect is that the beneficiary loses the gift (Ross v. Counters; Re Pooley), and Solicitor that prepared the Will without advising the testator on the attestation may be liable for negligence (Ross v. Counters)
• Note the Exceptions:

Other exceptions include:

• Gift made in settlement of debt – s 15, Wills Act; s 8. Wills Law, Lagos
• Beneficiary married witness after execution – Aplin v. Stone
• Witness is only a trustee of the gifts – Crewell v Creswell
• Gift is subsequently confirmed in another Will, not attested to by the beneficiary in question – Re Marcus
• Where there are at least two other witnesses to the will apart from the beneficiary – s. 8, Wills Law, Lagos
• Privileged Wills – Re Limmond
• Where the witnesses is subsequently appointed solicitor to the estate and the will contains a charging clause --- Re Royce. –It is a provision that entitles professionals who render professional services under the will to charge and be paid under the will. The general rule is that whoever administers the will should not be paid but the presence of this clause enables them to be paid.

 

 

Mode of Revocation of a Will

1. Duly executed Will or Codicil:Where all the provisions of a will are inconsistent with an earlier will, the later will would prevail and strike out the earlier one. If its only a portion then the portion that is inconsistent would be struck out. So its struck out to the level of its inconsistency. Mere inconsistency doesn’t invalidate the will. A will could be revoked expressly or impliedly.

• Express revocation – in the present will it would be expressly stated in the will that he revokes or cancels all earlier wills e.g.“ I formally
• Implied – it isn't stated but the provisions of the earlier will would be cancelled

1. By Destruction: For personal destruction to be effective the testator must have destroyed the will with the requisite intention – so two things must be present 1) an intention to revoke with and 2) actual act of destruction. Note that destruction need not be whole. Destruction includes burning, tearing, mutilation.
2. By a Subsequent Valid marriage. Exceptions: 1) If the will was made in contemplation of the marriage, provided the marriage later took place between the contemplated parties 2) marriage under native law and customs/ Islamic law even though valid does not revoke a will. Native law and customs is not effective to revoke a will, that’s why its important to know the nature of the marriage 3) void ab initio marriages does not revoke a will.
3. Duly executed written declaration of intention to revoke, executed in line with section 9 of the Wills Act – s. 20, Wills act;  13 Wills Law, Lagos. Note that instructions are different from written declaration
4. Alteration (S. 21 Wills Act) – when a will is altered that part has to be re-executed in line with s 9 to be valid.

 

Revocation by subsequent marriage

• Only a marriage under the Act can revoke ---- s. 18 Wills Act, 11, Wills Law, Lagos
• Voidable Marriages still revoke the will --- Re Robberts
• Only lawful/legal/valid marriage can revoke a will ----- Re Gay

 

Exceptions to revocation by subsequent marriage

• Void marriage --- Mette v. Mette
• Marriage under native law & custom --- 11, Wills Law, Lagos
• Will made in contemplation of marriage – Re Langston
• Will made in exercise of power of appointment --- 11, Wills Law, Lagos; Re Park
• A Will made before marriage under the Act but after marriage under native law & custom to the same spouse --- Jadesimi v. Okotie-Eboh :– there was no fresh marriage, the marriage under the act was just a confirmation of the marriage under native law and custom. Marriage under the act and marriage under the law are equal –pari passu

 

Revocation by subsequent will or codicil

• Express revocation --- where the subsequent will or codicil contains a revocation clause --- Henfrey v. Henfrey
• Implied revocation --- where the subsequent will or codicil does not have a revocation clause but has provisions inconsistent with previous will or codicil --- Dempsey v. Lawson

 

Revocation by written declaration

• See section 20, Wills Act; In the Goods of Durance(1872) LR2 P&D 406 In the Goods of Gosling (1886) 11 PD 79
• Written declaration to be effective in revoking the will must have been executed in accordance with section 9, Wills Act

 

Revocation by destruction

• TO BE VALID, two elements must co-exist:
  • (1) Actual (physical) destruction
  • (2) Intention to revoke by destruction

See Hobbs v. Knight (1838)

• Symbolic destruction not enough --- cheese v. Lovejoy
• Revocation of a will by destruction does not revoke a codicil to the Will --- In the Goods of Turner (1872):- Every codicil must be attached to a will, and must refer to the will. But if that will is revoked it does not mean the codicil is revoked –In the goods of turner
• Destruction need not be total, substantial destruction is sufficient

----- Perkes v. perkes

 

Forms of revocation by destruction

• Personal destruction by testator with the requisite intention
• Destruction by another person --- to be Valid/effective, must satisfy the following conditions ------

(i) Must be on testator’s written instruction

(ii) Must be carried out in the testator’s presence

 

CODICIL

• See Greenwood v Cozens 164 ER 1037;
• In the Goods of Clements (1892) Pt 254
• Supplemental to a will. It must in creation obey all the rules governing making of wills.
• It must refer to the Will, to which it is supplemental to by date. Must be numbered.
• Like a will, it is subject to same rules of failure of gifts; i.e lapse, ademption etc.
• Subject to same rules of construction.
• When admitted to probate, it becomes part of the will.
• Draftsman must end it by confirming will.

A codicil must refer to an existing will, therefore you can’t make a codicil if you’ve not made a will. Uses –1) It could be used to revoke a will 2), It could used to revive a will 3) Amend a will. 4) Republish a will

 

Republication (s.34 wills act)

Means confirmation or affirmation of the content of the will. Done in two ways:

1. Re execution with proper formalities as provided by S. 9 Wills Act
2. Duly executed codicil containing reference to the Will or codicil republished. Re J.C. Taylor (1888) 57 LJ CH 430

• Note: that republication will not bring back a revoked will.

 

Revival of a revoked will –

1. 22 Wills Act. It is done in 2 ways;

1. Re-execution in solemn form. S. 9
2. By a duly executed will/codicil with the requisite intention to revive the revoked will.

Note:

1. Revival validates alteration not attested in a will.
2. Intention to revive is not inferred; must be expressed on the face of the will or codicil

 

Custody of will

A Will may be kept in any of the following places for safe custody ---

• Probate registry
• With testator`s Solicitor
• In a bank
• With a trusted younger relative or friend
• Could be kept by the testator in his house or any other place he considers safe

 

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

 

1. Must take full instructions from the testator;
2. Must take instructions in his (lawyer’s) office. Note the exceptions;
3. Must be meticulous so as to include all relevant properties;
4. Diligence & dedication
5. Duty of care;
6. Duty of professional secrecy & privilege (not to disclose confidential communication);
7. Duty to render honest and candid advice;
8. Fiduciary duty --- to act bona fide, in honesty, in the best interest of the client
9. Duty to act within the bounds of law – avoid fraud, sharp practices, etc
10. Duty to avoid conflict of interest --- suspicious circumstances, etc
11. Duty of honesty & transparency;
12. Duty to charge adequately, but not excessively
13. To draft the Will to professional standard;
14. To advise the client on the need for residuary clause; why a beneficiary or his spouse should not act as witness; on the options, procedure, and conditions for execution of the Will; custody of the will, testamentary restrictions, etc