The Prerequisites of a Valid Will; A Critical Analysis
Chapter One
RATIONALE AND JUSTIFICATION OF THE STUDY
The importance of will in the life of a people cannot be overestimated. Death is an inevitable end of earthly life. We are living witnesses to the destruction of family units at the end of the patriarch’s life due to disagreement over inheritance. Homes have been broken and scattered, and children and relations have become mortal enemies in their struggle to share the properties of the deceased.
While it may be true that because of the feud and unending litigation that sometimes attends some Wills, some people have become scared about Wills, and the overwhelming majority are thirsty for knowledge about Wills. They want to know why they ought to make Wills and their advantages over other manners of disposition of property in consideration of death.
This research work is meant to be a guideline on how to make Wills that will stand the test of time.
Chapter Two
LITERATURE REVIEW
WHAT IS A WILL?
Generally, the word “WILL” may mean an instrument, or it may mean all the testamentary document by which a testators property is disposed off, or devised.
According to Osborne,[1] a Will is a disposition by which the person making it (the testator) provides for the distribution or administration of (his) property after his death. It is always revocable.
A Will according to Swinburne2 is a lawful disposition of that which any would have done after his death.
Black Stone3 defines the Will as “The legal declaration of a man intention which he Wills to be performed after his death”.
The celebrated nineteenth century English writer Jarman4 says:
A Will is an instrument by which a person makes a disposition of his property to take effect after his decease, and which is in its nature ambulatory and revocable during his lifetime.
In the words of P.T. Afangideh5, a WILL is a legal instrument for the transfer of property or obligations from the testator to the beneficiaries through the medium of Executors, which transfer is ineffectual until the death of the testator. A WILL therefore, is a law, a decree, a testament made by the testator on matters touching and concerning his estate, family and future.
WILLS according to the Blacks Law Dictionary6 is defined as a document by which a person gives his or her estate to be distributed upon death.
A WILL is a creation of statute. For it to be valid, it must comply strictly with the provisions of the relevant statute. The courts are strict in the observance of statutory prescriptions on Wills.
Scarman J. in Re Fuld (Deceased)7 clarifies the position succinctly as follows:
Darkness and suspicion are common features in WILL cases: Because it is often difficult, and sometimes impossible to discover the truth, the law insists on two types of safeguards in WILL cases. The first type of safeguard is part of the substantive law – the requirements of proper form and due execution. Such requirements …are no mere technicalities. They are the first line of defence against fraud upon the death. The second type of safeguard is the second line of defence. It is invoked when there are circumstances which give rise to suspicion: it is the safeguard of strict proof. In case where no suspicion reasonably arises, the court will allow inferences, presumptions as they are sometimes called, to be drawn from the regularity of a testamentary instrument upon its face, or the fact of the execution. But if there are circumstances, whatever be their nature, which reasonably give rise to suspicion, the court must be on its guard. It must ensure that the burden of proof rests upon the party propounding the WILL: and he must satisfy the conscience of the court that the instrument so propounded is the last WILL of a free and capable testator”. Over the years, the courts had devised as indicated above by Scarman J, a long line of authorities to ensure that no fraud was perpetrated against the wishes of the testator and, in fact, the WILL was made by him voluntarily when he possessed full capacity to make it.
In summary, a WILL will be given a working and functional definition which will graphically bring out and bear out the dictum of his Lordship in the aforementioned case thus:
It is a testamentary and revocable document, voluntarily made, executed and witnessed according to law by a testator with sound disposing mind wherein he disposes of his property subject to any limitation imposed by law and wherein he gives such other directives as he may deem fit to his personal representatives otherwise known as his executors, who administer his estate in accordance with the wishes manifested in the WILL.
CHAPTER THREE
TESTAMENTARY CAPACITY AS GROUND FOR A VALID WILL
TESTAMENTARY CAPACITY
Testamentary capacity simply connotes many things to many people. Simply put, it means the capacity to make a testament that is a WILL. Statutes may delimit the extent of capacity. For instance, S.1 (1) WILLS Edict 1990 of Lagos States provides:
“It shall be lawful for every person to bequeath or dispose of by his WILL executed in accordance with the provisions of this Edict all property to, which he is entitled either in law or in equity at the time of his death”1
They may also curtail capacity by removing some property from within the testamentary capability of the testator. S. 3(1) of the WILLS Law of the Old Western Region applicable in all the states forming the old Western Region is also an example. It states:
“subject to any Customary Law relating thereto, it shall be lawful for every person to device, bequeath or dispose of by his will executed in a manner hereinafter required, all real estate and all personal estate which he shall be entitled to, either at law or in equity at the time of death.”2
In Oyo State, a person who before his death was subject to Islamic Law is denied testamentary capacity under the Wills Edict of that State.3
Statutes can extend capacity where none would have been available. A seaman or marine or soldier in actual military service may make a will even though he is a minor, and such will, need not comply with the rigorous formalities prescribed by law.4
The general law that is common law and equity may affect the testamentary capacity of the testator. He lacks capacity to dispose of his property at the time when he does not possess sound disposing mind or where he has been coerced and over powered to make dispositions he would not otherwise have made.
It is obvious from the above that the term testamentary capacity is generic and appears to cover general capacity of the testator to make a will. So, if the testator lacks capacity either because of his mind or other infirmity or for non-compliance with the law under which his Will is made, he is described simpliciter as not possessing necessary testamentary capacity.
CHAPTER FOUR
UNDUE INFLUENCE AS A VITIATING FACTOR
UNDUE INFLUENCE
A WILL is invalid if it is obtained through an influence which destroys the free agency of the testator and substitutes another’s volition for his. It is difficult to put a realistic concept of undue influence into a capsule. Definitions in court opinions and in instructions to jurists are not without value, but the gist of the matter cannot be understood without considering what the courts have held does or does not amount to proof of undue influence.
Furthermore, any objective phases of undue influence are apt to be veiled in secrecy. Hence, proof of undue influence must be largely, or even entirely circumstantial everyone is more or less swayed by his associations with other persons. Obviously, the courts would not characterize all such environmental influence as undue. The most usual language is that in order to constitute undue influence, the conduct of the other must be such as to destroy the free agency of the testator, or substitute another’s volition for his. To be classed as undue, the influence must place the testator in the attitude of saying; “it is not my will but I must do it”. In the ordinary case of undue influence, the Will is that of the testator in the sense that it is executed by him and he realizes this, but its held invalid because it does not represent his true wish or desire.
CHAPTER FIVE
SUMMARY
CONCLUSION
From the foregoing, it can be deduced that a Will is a testamentary document enforceable, protected and binding at law. Generally, a WILL must be in writing and must be executed in a mode prescribed by state statute. In some limited instances, an oral Will may be valid depending on state law. Although the language of a Will is largely immaterial, a valid disposition of property requires certainty as to the property and the individuals or entity receiving the property. No prescribed form is required for a Will and it is not essential for the validity of the Will for the Will to dispose of all of the testator’s estate or name an executor.
Additionally, one must be at least 18 (eighteen) years old to make a Will and have testamentary capacity. For adults, mental capacity to execute a Will is determined at the time of the execution of the Will. Generally, a testator is held to have capacity to make a Will if the testator understands the nature of the business in which he or she is engaged, has a recollection of the property which is intended to be disposed of, the objects of the testator’s bounty (family members) and the manner in which he or she wishes to distribute it.
Testamentary capacity generally means that the testator knows certain things at the time he or she executes the Will. Basically, a testator is deemed to have capacity to make a valid Will if the testator;
- Understands that he or she is executing a Will;
- Is capable of recalling the property which he or she intends to dispose of;
- Is capable of recalling the objects of his or her bounty (heir, family members, etc) and;
- knows the manner in which he or she wishes to distribute the property among those persons.
Old age, by itself, does not make the testator ineligible to make a Will. Likewise, eccentric behaviour or character or illness or emotional distress does not necessarily render the testator incapable of making a Will. It is possible for a person to be very ill but nevertheless remain alert, stable and capable of giving natural instructions and advice.1 Even if a person has been adjudged insane, he or she may still be capable of making a Will if he or she has testamentary capacity at the time the Will is executed.
Additionally, a testator must also have testamentary intent. Testamentary intent means that the testator must intend that the paper he or she is signing be a Will.
However, even when all the ingredients which go to make a valid Will are present, it may nevertheless turn out to be invalid, voidable or unenforceable as a result of the presence of undue influence. The doctrine of undue influence extends not only to cases of coercion or tricks of fraud but to all cases where influence is acquired or abused where confidence is reposed and betrayed.
For a Will to be valid, the testator must have made the Will of their own volition and it must reflect their desires for the disposition of their property. If an influence was sufficient to destroy the free agency of the testator, the Will may be challenged and subsequently set aside.
Finally, a Will must be in writing and signed by the testator or by some other person in his presence and by his direction and the Will should be signed and acknowledged by him or her in the presence of at least two competent witnesses. These two witnesses shall sign the Will in the presence of the testator and each other.
It is worthy to note at this point that a competent witness is a person who, at the time of making the attestation, was qualified to testify in court to facts to which he attests by subscribing his name to the Will. Although some states or countries may allow a beneficiary or other interested party to be a witness on the Will, the better practice is to use two independent witnesses.
RECOMMENDATION
From the fore-going, we cannot but underline the fact that if a Nigerian testator wants his Will to be effective to pass his property, whether by the general law or the customary law of inheritance, he must comply with all the requirements of the formal validity of a Will under the general law. The conception of making Wills is foreign to the indigenous system which knew no writing, and it is only reasonable that any attempt to adopt the Will form in order to confirm or vary the Customary Order of succession should satisfy the requirements of the Wills Act. Thus in Apatira & Anor V. Akande & Ors2 a Moslem made a Will in English form but with respect to signature and attestation, the Will did not comply with the requirements of the Wills Act 1837 and 1852. The two attesting witness of the Will signed it on two different dates after the testator had already executed and signed the self-made Will. The testator thus could not be said to have signed or acknowledged “his signature in the presence of two witnesses both being present at the same time” according to the requirements of the Will Act. The deceased in this case had however satisfied the requirements of the Islamic law in this respect. On these facts, the supreme court held that the fact that the deceased was a Nigerian and a Moslem could not make any difference to the necessity of complying with the requirements of the Will Act. But where a Moslem has made a Will in proper form as in George V. Administrator-General3 and Ayoola & Ors V. Folawiyo & Ors4 there is nothing to prevent Customary law or as Dr. Elias said “any other code of Islamic law from applying to govern the devolution of the estate”.
Another condition of validity to a Will is that the testator must have capacity. If the testator lacks capacity as prescribed by law, the Will becomes invalid and all interests it purports to confer fail. Once incapacity is proved to the satisfaction of the court, the Will fails. Thus, the person engaged professionally to prepare the Will has the responsibility and duty to ensure therefore that the Will is valid in the sense that the testator has the necessary capacity. If he observed that there are suspicions which tend to indicate lack of capacity, he must make direct enquires to ascertain whether in fact there is capacity. Such suspicion can be raised in an old senile testator or one who suffers from bodily ailments which may affect his mind. It will not be out of place to address capacity where the testator has a complicated family history because a dissatisfied dependant may go to any length to fault the Will on various grounds including lack of capacity.
The legal practitioner engaged in the preparation of the Will is duty bound to ensure that the Will is not frivolously or maliciously faulted for lack of capacity. Knowing when the law requires that the testator must possess the necessary capacity, he in turn must advise the testator accordingly and put in place devices which may tend to support capacity.
Lastly, where a Will is made without the volition of the testator, he has the right to rescission. A transaction conducted under undue influence is voidable at the instance of the party raising it. It is an equitable jurisdiction that the court exercises to rescind such unconscionable transaction. It follows therefore that reasonable steps must be taken to avoid a transaction founded on undue influence in order not to be caught by laches and acquiescence.
BIBLIOGRAPHY
- Abayomi, Kola: Wills, Law and Practise: Mbeyi & Associate (Nig.) Ltd Lagos, 2004.
- Afangideh, P. T.: Wills, Probate & Estate Administration in Nigeria and the Commonwealth: Citigate Publishers Calabar, Cross River State, 2001.
- Atkinson, Thomas E.: Law of Wills: (2nd edn), West Publishing Company, 1953.
- Cheshire and Burns: Modern Law of Real Property: (5th edn.); Stevens and Sons Ltd London, 1984.
- Garner, Bryan A.: Black’s Law Dictionary: (8th edn.): West Publishing Company, 1999.
- Kimmer, Scriven and Standfield: Vickery’s Law and Accounts of Executors, Administrators and Trustees: (21stedn.) Cassel Educational Ltd, London, 1987.
- Lawson, F. H.: Introduction to the Law of Property: Oxford University Press, 1958.
- Megarry, Robert and H.W.R. Wade: The Law of Real Property (5th edn) Stevens & Sons Ltd London, 1984.
- Morris, J. H. C.: Property Statutes: (3rd edn); Sweet and Maxwell London, 1977.
- Oluyede, P.A. O.: Nigerian Conveyancing Practise, Drafting and Precedents Heinemann Education, 1994.
- Mabogunje V. Adequnmi (Supra); also Adebajo V. Adebajo (Supra).
- Nasr V. Rossek (1973) All NLR 627; Bua V. Dauda (Supra)
