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Law Report

Why You Should Write A Will

Posted: Apr 3, 2016 at 4:23 am   /   by   /   comments (0)

Monday Ubani


A will is a written statement that ensures that the properties of a person devolve on his or her heirs according to his or her express wishes and directives. This makes a will very important as it is a document that speaks after the death of the testator. In property practice in Nigeria, a will may deal with not only real property, but also with personal and movable properties.


Importance of a will


A will helps a person to determine what happens to his properties after his death.

It helps him to give any instructions he may wish to be carried out if he is no longer alive.

A will is a creation of statutes. A will is sacrosanct because the wishes of the testator in the will are his last wishes and testament which applies to his declared estate.


The major features of a formal will


  1. It is testamentary, that is, it speaks after the death of the testator. This distinguishes it from other documents which take effect during the lifetime of the testator, for example deed which become operational upon delivery.
  2. It is ambulatory which means that it is capable of being changed and revoked during the lifetime of the testator. It is revocable as long as the maker is living.
  3. It is voluntary which means that it must be independently and freely made without pressure and undue influence from other persons.
  4. It is made, signed and witnessed according to law.
  5. It identifies the property and names of the beneficiaries of the gifts in the will.


Requirements of a will


A will must have the necessary characteristics and comply with the formalities as laid down by law. There must be an intention by the testator to dispose the properties. Where a will complies with all the formalities but there is no intention, then it is not a will. If it complies with all the requirements and there is intention but it does not describe itself as such, it will still be held as a will.

The person making the will is called a testator, where the person is of the female gender, she is called a testatrix. Where a person makes a will he is said to have died testate, where none is made, he is said to have died intestate. The person entitled to the properties or benefits under the will is called the beneficiary. The personal representatives appointed under the will to administer the estate of the deceased are called executors, if she a woman, she is called executrix. Where the deceased dies intestate, administrators are appointed to administer the estate.

Many of the disputes over will of the deceased person deal with allegation or controversy over

  1. Lack of due execution of the will.
  2. Incapacity of the testator- where the testator lacks the required age or mental capacity to make a will.
  3. Lack of knowledge and approval- where the testator does not have the knowledge or never approved the content of the will or was induced by fraud or mistake to make the will.
  4. Undue influence – where the will was made under pressure (not persuasion) of the testator.
  5. Forgery – where the will was forged.
  6. Revocation – where there is allegation that the will was revoked by marriage, subsequent will or a codicil, destruction, revival of an earlier will or codicil or by alteration or obliteration.


The advantages of making a will


  1. To avoid the problems of intestacy; where no will is written, the estate of the deceased will be governed by the rules of intestacy (i.e. customary laws). For example, persons whom the deceased may not wish to benefit from his estate may gain from it, while those whom he may desire to benefit from the estate may be deprived. We have witnessed cases where family members become sworn enemies over properties of the deceased.
  2. To have the choice of appointing personal representatives (executors) to administer his estate. By this, he can choose persons whom he trust and who have his interest to carry out his wishes after his death. This contrast with a situation where he dies intestate and the courts may have to appoint administrators for his estate without the deceased having any choice in their appointment.
  3. To confer extended powers on executors beyond that contemplated in the rules of administration of estate in the jurisdiction.
  4. The testator can select and appoint guardians to look after his children if he desires.
  5. The testator has the opportunity to make a positive display or demonstration of his wishes and desires. For example, he may desire to give to charity, to give to his friends or mistress; or to say how and where he should be buried.
  6. A will saves time and money; this is because the personal representatives derive their authority from the will and begin to act immediately. Where the deceased dies intestate, administrators will have to apply and wait for letters of administration to be issued before they begin to act. The grant of letters of administration is expensive and where an administrator acts on the estate without a grant of probate, his action may be set aside.
  7. It may give peace of mind to the testator because he has wound up his affairs and hopes his wishes would be carried out after he is no more.


Requirement of legal age


The testator must be of age approved by the relevant laws. Various laws prescribe the age for which a person can make a will and the age requirement may be set out as follows.

  1. Under the Will Act, the legal age by which a person can make a will is 21 years.
  2. Lagos State: the legal age is 18 years.
  3. Kaduna State: the legal age is 18 years.
  4. Abia State: the legal age is 15 years.
  5. Oyo State: the legal age is 18 years; hence no will can be made under these ages.

However, there are exceptions to the requirement of age and this applies to seamen, soldiers and mariners. The will executed in such cases must, however, express the testamentary intension of the maker even though he is under aged.


Requirements of a valid will


  1. It must be in writing. It can be written by the testator himself but it is advisable to involve a lawyer.
  2. It must be signed by the testator.
  3. The signature of the testator must be acknowledged by him in the presence of at least two witnesses.


Application for grant of probate and letters of administration


Probate is the authority that validates the powers and functions of an executor, although the authority of the executor to act derives first from the will. The validity of an executor to continue to act depends on the confirmation of his powers by the grant of a probate. Indeed, an executor may not be able to perform certain acts except there is grant of probate. An administrator, however, derives his powers to act from the grant letters of administration and where no such is granted he cannot act. The grant by the court of letter of administration is the authority by which anyone claiming to be an administrator would derive his authority. Thus while a probate confirms the representation of an executor, a letter of administration confers the representation of an administrator. An executor of a will can deal with the estate even before the grant of probate pending its subsequent ratification; but an administrator cannot generally deal with the estate before grant of letter of administration except if his actions are for the benefit and interest of the estate, in which case and based on the doctrine of ‘relation back’ his act will be related back to the date of death of the deceased to validate the steps taken by the administrator.

Where a will is not proved, the presumption is that the deceased died intestate and all his properties would be by operation of the native law and custom which is practiced in the area devolve on those entitled on his intestacy. Until the grant of letter of administration, his real and personal estate is vested in the court for the purposes of realization, preservation and prevention of waste in the estate. In such a case, administration is usually sought for and obtained to manage his properties. But even before administration is granted, the court has the power when circumstances require, on the death of a person, to immediately appoint and authorize an officer of the court or some other fit person to take possession of the property of the deceased within its jurisdiction, or to put it under seal and keep it until it can be dealt with according to law.


Ubani is a former chairman of NBA, Ikeja branch.