Outcomes

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

1. Explain limitations on the testator
2. State the nature of information required to prepare a will
3. Mention the various parts of a will
4. Explain the effect of the various parts
5. Draft a will and a codicil.
6. Identify ethical issues arising from 1, 2 and 5 above

Contents

1. Limitations on Testamentary capacity
2. Particulars of information required to prepare a will
3. Parts (Contents) of a will
4. Effect of the various parts
5. Drafting a will and a codicil
6. Ethical issues

Limitations on a testator

• Customary law – e.g. Section 3 Wills law Edo state: this means the testator can make a will subject the rules of customary law.
• IDEHEN V IDEHEN (1991) 7 SCNJ – here the culture said the house where the man lived upon his death would devolve to the first son.
• LAWAL-OSULA V LAWAL- OSULA (1995)
  • EGHAREVBA V ORUONGHAE (1995) – the idighe does not apply outside Benin
• It can also apply through Islamic law – you cannot waive what you ought to do under Islamic law

YINUSA V

Also note nemo dat quod non habet – you cannot give what you don’t have

• By statute – Provision for family and dependent

See section 2(1) Wills Law Lagos State

Who can bring the application?  If it can be proven that they are a dependent then they can bring an application

When can (should) the application be made? Within 6 months after probate was given, after which they would be statute barred.

The application must be made to the high court and they have to prove that they were a dependent and recipient of financial assistance from testator in his/her lifetime.

Taking Instructions

Use a checklist

• Full names of testator, address and occupation. When to ask for former names or alias
• Appointment of executors (and trustees) – note minimum number

Who can he appoint as trustees – he need to appoint trusted individuals. The minimum is two and maximum for purposes of probate 4. He can appoint more than 4 but probate will only be given to the first 4. Qualities: They should be willing to work together and have the requisite knowledge to handle/administer the property, competent, adult

• Charging clause- does he want the solicitor involved here to be paid. Ordinarily it is done for free but as a way of incentive they may suggest that solicitors and other professionals involved have the right/power to charge reasonable professional fees
• Extent of testators estate
• Properties owned by the testator:
• Shares
• Insurance policies

Drafting of a will shouldn’t be rushed through, ask if he has any debts etc.

• Intended beneficiaries
• Spouse
• Children – if there are any unofficial children
• Other dependants
• Disposition – who gets what; in what capacity (joint tenancy or tenancy in common)
• Funeral expenses (should be left out the will because the will may not be read until after the man has been buried or may not even be found)
• Residuary – whatever is remaining
• Medical certificate – to show the man was medically sound and had testamentary capacity at the time of making the will.
• Attesting witnesses – this is important because beneficiaries and spouses cannot attest to the will
• Custody of will – it should be kept in the court, they can keep sealed copies at home

When drafting be careful to ensure that you are precise, accurate and communicate the intent of the client, it is effectiveness of communication and not literary content.

PARTS OF A WILL

1. Commencement – THIS IS THE LAST WILL (AND TESTAMENT) OF ME MR JOSIAH ABDULI MUSTURA ALIAS ONE NIGERIA previously known as…., MALE ADULT OF 44 OKETANA STREET , LAGOS.

When drafting a will the will should be in numbered paragraph so para 1 is the commencement. It is suggested that the date is included with the commencement.

2. Revocation clause: The second clause is the revocation clause and it comes immediately after the commencement – I revoke all testamentary documents previously made by me. Inconsistencies in the will would be interpreted in favour of the later will.
3. Appointment of executors (and trustees) – I appoint the following as executors and my trustees, then you need to include their full name and addresses. Trustees and executors are not the same thing although they are both fiduciary. Minimum of two but in certain circumstances one would be accepted and for probate maximum of 4 would be recognised. Where no executor is appointed then they apply for letter of execution annexed to the will
4. Charging clause – AND I DECLARE that any solicitor who render services to this will should be given reasonable remuneration.
5. Disposition clause: I give…. This is where all the gifts are given. Life interest can be given and whoever holds a life interest can* hold that property and depending on what is given and how it is to be given, the words to be used should be noted. Where there is no gift there is no will, that document doesn’t amount to a testamentary document*.
6. Residuary clause: whatever is left should go into the residuary clause. Failed gifts would also form part of the residuary estate, property not included in will after will was made. Where there is no residuary clause in the will it would amount to partial intestacy and this means two documents will be obtained – probate and the letter of administration. The letter of administration would administer the properties that would have formed the residuary estate and the next of kin would be the administrators. “ I GIVE the whole residue of my estate to such my children living at my death as attain the age of 21 years and if more than one in equal shares” 
7. Testimonium
8. Execution
9. Attestation – minimum of two witnesses. Persons who shouldn’t attest to a will include: spouses, beneficiary under the will, blind persons.
10. Franking – prepared by

Ethical issues

1. Duty of the lawyer to charge his client reasonably
2. Rule 1 – duty of the lawyer to uphold and observe the law
3. Not to go to solicitors house to receive instruction
4. Duty to be diligent
5. Duty to declare conflict of interest e.g. if his wife is a beneficiary

Commencement clause of  codicil – “This is the first codicil to the will dated ……..day of ……..made by me”