A Will when made by a testator has no effect before his death, but rather becomes active and fulfils the intention of the maker after his death. Prior to the existence of the Wills Act(1) and the various Wills Law(2), the distribution of a deceased’s property was done orally under the customary law or Islamic law. With the advent of the Wills Law, express provisions were made for persons to bequeath or distribute their properties either in law or in equity via a Will duly executed in accordance with the provision of the Law. This does not apply where the testator had no power to dispose of his properties by Will or under the customary law to which he was subject(3).
A Will or Testament is therefore a legal document by which the testator, expresses his wishes as to how his property is to be distributed at death, and names one or more persons called the executor, to manage the estate until its final distribution(4) . It helps a person determine what happens to his properties after his death and to give instructions he may wish to be carried out after his demise. A Will can also help the testator state who he wishes to become the guardian for any minor children or dependents. The testator must however have an intention to distribute his properties as where a Will complies with all the formalities but there is no intention by the testator to distribute his properties, the Will may not be valid. Where the testator wishes to add to, alter, or revoke his Will he may make use of a Codicil. A Codicil is a supplementary Will by which a testator amends, alters or revokes what is contained in a Will. It is important to note that all the principles on capacity and validity of a Will applies to a Codicil.
It is however important to note that a formal Will is a creation of statute and as such the provisions of the statute must be taken into consideration when drafting any such Will, Asika v Atuanya(5). There are various statutes applicable to Wills in Nigeria: Wills Act 1837, Wills Law of various states, Administration of Estate Laws of the various states, High Court (Civil Procedure) Rules of various states, Evidence Act, Marriage Act. The matters or the issues arising from Wills, Succession and Administration of Estates under the Constitution of the Federal Republic of Nigeria are not covered by the Exclusive and Concurrent list which makes it come under the Residual list. The Lagos State Government has since domesticated the Wills Act and made local legislations with respect to Wills Law. This paper takes a cursory look at the legal requirements of a valid Will using the Wills Law of Lagos State as a case study.
Features of a Will
- It is testamentary as it speaks after the death of the testator. Okelola V. Boyle (6).
- It is ambulatory as it is capable of being changed and revoked during the lifetime of the testator.
- It is voluntary as it has to be made independently without undue influence or pressure.
- It is made, signed and witnessed according to law.
- It identifies the property and names the beneficiaries of the gifts in the Will.
- The testator must be of a sound disposing mind.
Requirements of a Valid Will
The following are the key requirements of a valid Will:
- It must be in writing;
- It must be signed by the testator;
- It must be attested to by witnesses.
It Must Be in Writing
An essential requirement of a formal Will is that it must be in writing. A Will can be handwritten or typed. The Wills Law of Lagos State(7) and the Wills Act provide that no Will shall be valid except it is in writing. However, Section 1 of the Wills Law of Lagos State provides that the law shall not apply to any property of the testator which was subject to any customary law.
It Must Be Signed by the Testator
The Wills Law provides that no Will shall be valid unless it is signed by the testator or signed in his name by some other person in his presence and by his direction, in such place on the Will so that it is apparent on the face of the Will that the testator intended to give effect to the signature(8). A signature is a distinctive pattern by which it can be said who signed a document, it can be a person’s name, mark, rubber stamp, initial or thumb print(9). A Will is deemed to be valid if the signature is placed at, after, following, under, beside, opposite, or to the end of the Will.
In other words, a Will not signed by the testator is invalid, the absence of the testator’s signature goes to the root of proving the validity of any Will. Any distribution of property underneath the signature of the testator shall be invalid although the distribution of properties listed before the signature in the Will remains valid(10). Any alteration or correction in the Will after the testator has signed and the witnesses have appended their signature shall be invalid except the signature of the testator and the subscription of the witness is made in the margin, opposite or near such alterations and corrections(11).
It Must Be Attested to by Witnesses
In the case of Smee v. Bryer(12), probate was refused on a Will which had no room for any mode of execution at the end of the page of the written Will even though a signature was found in the middle of a blank page that followed the written Will. The effect of the failure to comply with the conditions/requirements of the law on the validity of a Will was laid to rest in the case of Dawodu V Isikalu & Anor(13), where the Supreme Court held that “a testator who desires to make a Will must satisfy the requirements of the law for the Will to be valid, else it will
The testator may appoint a minimum of two persons to witness his Will by appending their names and signature to the Will. There is however no limit to the number of witnesses who may attest to a Will provided that the witnesses have attained the age of 18 years and possess sound mental capacity. The exception to this is that a blind person cannot attest a Will because his disability makes it impossible for him to see the signature of the testator and the act of signing the document. The witness should however be one capable and available to give evidence in court whenever he is called upon.
At least two witnesses must append their signature on a Will for it to be valid. An attestation clause is where the witnesses attest to the Will jointly in the presence of the testator(14). The persons who attest a Will are competent to prove the validity or invalidity of the Will. A Will shall not be made invalid on account of the witness becoming incompetent afterwards witnessing a Will(15).
Beneficiaries of a Will are not to be witnesses of the same Will, as this will cause the gift intended for that beneficiary to fail. The Will shall however still be valid and such person witnessing can be called upon to prove the execution of such Will or to prove the validity or invalidity thereof(16). There are exceptions to the fact that a beneficiary cannot be a witness in the same Will , this includes:
- Where, there are at least 2 other witnesses apart from the beneficiary or spouse of the beneficiary. (17)
- When the gift to the beneficiary is confirmed in a codicil which is not witnessed by the particular beneficiary.
- When a beneficiary marries a witness after executing the Will.
- When gifts are given to persons in their capacity as trustees and not as beneficiaries.
- The gift was made in settlement of debt owed by the testator to the witness.
- When the Will does not require witnesses such as soldiers in active military service.
- Where the person present merely signs that he agrees with the contents of the Will but not as a witness.
After the requirements of a Valid Will has been adhered to by the testator, it should be noted that a Will is however revocable during the life time of the testator and it does not matter if the Will declares itself to be irrevocable. A Will can be revoked by making another Will or Codicil, by writing with a declaration of intention to revoke which must be signed and attested to in the presence of two witnesses (18), or by destruction by means of burning , tearing or otherwise of the Will which must show an act of physical and sufficient destruction and there must be an intention to destroy for destruction to be valid(19).
Capacity of a Person to Make a Will
Every person who has attained the requisite legal age and has sound mental capacity can make a Will. A blind person can make a Will(20) provided there is a “jurat“. The purpose of the jurat (which is usually in writing at the bottom of the Will) is to state that the contents of the Will were read over to the blind person and he appears to have perfectly understood the contents before affixing his signature to it. In the same vein an illiterate may make a Will provided there is a “jurat“ stating that the contents of the Will were read over to the deceased before its execution and that he has full knowledge of the contents of the Will.
The capacity of a person to make a Will includes Attainment of Requisite Age, Requisite Mental Capacity.
Requirement of Legal Age
Various Will Laws have made provisions for the requisite legal age for making a valid will. The Wills Act(21) provides that the legal age is 21 years while Section 3 of the Wills Law of Lagos State(22) provides that every testator must have attained the age of eighteen (18) years to make a valid Will. However, this provision is subject to the exception stated in Section 6 (1) of the Wills Law of Lagos State which provides that any seaman, mariner or crew of commercial airline being at sea or in the air may dispose of his estate though under the age of eighteen years.
As a general rule, the law presumes that a testator has and possesses sound disposing mind at the time of making the will(23). However, such presumption is rebuttable and the onus to rebut this presumption is on the person contesting the mental capacity of the testator by leading positive affirmative evidence to that effect. The testator must have had a sound disposing mind at the time of issuing instructions and at the time of executing the Will, Okelola v Boyle; Nola & Ors. v. Douglas & Anor (24).
The test to determine the mental capacity of a testator was laid down in Banks v. Good Fellow(25). The conditions to be satisfied by the persons who propound a Will are laid down as follows (cumulative):
- The testator must understand the nature of the act;
- He must understand the extent of the property he is disposing of;
- He must understand the claims on him; and
- The manner in which the property is distributed must be rational in that no disorder of the mind has poisoned his affection or prevented the exercise of his Will.
In Adebajo v. Adebajo (26), the deceased’s Will was challenged on mental capacity as he was sick before making the Will. The Supreme Court stated that considering the circumstances of the making of the Will as well as its detailed provision for all his relations in addition to members of his own immediate family, the Will was that of a fair mind solicitous of their welfare and anxious about their future happiness. The content of the Will revealed a clear and coherent mind(27). Where a person uses undue influence in obtaining a benefit under a Will, that gift automatically fails.
While the fulfilment of the legal requirements gives validity to a Will, there are instances where disputes may arise over the Will of a deceased person. Some of these instances include; the lack of due execution, incapacity of the testator (requisite age or mental capacity), lack of the testator’s knowledge and approval of the contents of the Will, where the testator made the Will as a result of undue influence (under pressure not persuasion), where the Will was forged, where there is an allegation that a Will was revoked by marriage, subsequent Will or Codicil, destruction, or revival of an earlier Will or Codicil or by alteration or obliteration resulting in the need for the executors of the Will to prove the Will as provided for under the Lagos State High Court civil procedure rules 2019(28).
There are a plethora of reasons and benefits of writing a Will. One major benefit is that one can be assured while still alive that upon demise, the loved ones will be catered for as if one is still alive to provide for them. However, a Will is not valid unless it fulfils the above requirements. Where it fails to meet the above requirements, a previous Will may apply (if the Probate Registry can identify an earlier Will) or the estate will be declared intestate and the intestate succession laws will apply.
When a Will is made, it should be safeguarded and kept in safe custody. Under the law(29), a Will may be kept in the Probate Registry. A Will can also be kept in a Bank’s vault or in a personal safe box of the testator or with the testator’s solicitor. It is however advisable that the Will be deposited at the Probate Registry in order to make the process of search and discovery of same easy.
Having your Will invalidated not only means that the final wishes of the testator are not being honoured, but it may have a shattering financial impact on the intended beneficiaries.
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- Wills Act 1837.
- Wills Law of Lagos State CAP W2 LFN (2004);
- Kaduna State Wills Law, Cap 163, Laws of Kaduna State 1999, 3. Abia State Wills Law cap 37 Laws of Abia State, Kwara State Wills Law, cap 168 Laws of Kwara State 1991 etc.
- Section 1 Wills Law of Lagos State CAP W2 LFN (2004).
- Charles H.P ” Last wills and testaments”
- (2008) ALL FWLR part 433, p.1293 at 1317.
- (1998) 1 SCNJ.
- Section 4 of the Wills Law of Lagos State CAP W2 LFN (2004) and Section 9a of the Wills Act 1837.
- Section 4(1) (b) of the Wills Law of Lagos State CAP W2 LFN (2004).
- Odunewu v Martins (2011) 8NWLR pt1250 at 585.
- Section 4(2) of the Wills Law of Lagos State CAP W2 LFN (2004).
- Section 14 of the Wills Law of Lagos State & see the case of Greville v Tylee (1851)7 MOO PC at p. 327.
- (1884) 1 ROB; BEC 616 at 623.
- (2019) LPELR -40633(SC).
- Apatira v Akande (1944) 7. NNLR 149.
- Section 7 of The Wills Law of Lagos State.
- Section 8 of the Wills Law of Lagos State CAP W2 LFN (2004). This section reinforces the importance of the consideration of undue influence.
- Proviso to Section 8 of the Wills Law of Lagos State CAP W2 LFN (2004).
- Re Spracklan’s Estate (1938) 2 ALL ER 345
- Cheese V. Lovejoy (1877) 2 P & D251, Perkes V. Perkes (1820) 106 ER, 740
- Insitful V. Christian 1.3 WACA 345
- Section 7 of the Wills Act 1837.
- CAP W2 LFN (2004).
- Wellesley v Vere (1841) 2 Curt 917.
- (SC 30/1993)  9; (2019) LPELR- 48285 (CA).
- (1870) LR 5 QB 549.
- 3PLR/1971/3 HC.
- However, there are exceptions duly contained in the cases of Parker v Feltgate (1883) LR 8 PD171 and Singh v
- Amirchand (1948)1 All ER 152; Nola & Ors. v. Douglas & Anor (2019) LPELR -48285(CA).
- See generally Order 62 of the Lagos State rules 2019. Order 62 rule 1 of the High court of Lagos State (Civil Procedure) Rules 2019 and Section 35 of the Administration of estate laws of Lagos State 2004.