Introduction
A Will is more than a fundamental legal instrument, it is the final voice of a person regarding the disposition of their property upon death[1]. It reflects a person’s wishes, values, and intentions concerning the future of their estate and the welfare of their loved ones.
In many societies, including Nigeria, the absence of a valid will often lead to family dispute, prolonged litigation, and the distribution of property in a manner that may not align with the deceased’s true intentions.
Despite its importance, a significant number of Nigerians die intestate, leaving the administration of their estates to statutory rules or customary inheritance practices that may produce unintended consequences. The preparation of a will therefore serves not only as a mechanism for orderly estate distribution but also as a means of safeguarding family harmony and protecting the interests of beneficiaries[2].
Within the Nigerian legal system, the making and administration of wills are governed by a combination of statutory provisions, judicial decisions, Islamic law and customary law principles. These legal rules establish the conditions for a valid will, regulate its execution and revocation, and provide the framework for probate and estate administration.
This article examines the legal framework governing wills under Nigerian law and highlights the practical considerations that must be observed in the drafting and execution of wills.
Meaning and Nature of a Will
A will is a testamentary disposition of a person’s property, made voluntarily by the testator, and executed by the testator either personally or by another person acting on the testator’s direction, in the presence of at least two witnesses who attest to the execution of the document[3]. It is a legal declaration by which a person, the testator, names one or more persons to manage his estate and provides for the transfer of his property at death. It is ambulatory in nature, meaning that it has no legal effect until the death of the testator and may be revoked or altered at any time during the lifetime of the maker, provided he retains testamentary capacity[4]. Where a testator intends to add to, alter, or revoke any provision in an existing will, he can effect such changes by means of a codicil. A codicil is a supplementary testamentary instrument through which a testator modifies, amends, or partially revokes the provisions of a prior will, without necessarily executing an entirely new will[5].
It is important to note that a codicil is subject to the same legal requirements as a will. All rules relating to testamentary capacity, due execution, and validity applies with equal force to a codicil[6].
The central principle governing wills is testamentary freedom, which allows a person to dispose of his property as he wishes. However, this freedom is not absolute and may be limited by statutory provisions, customary law, Islamic law or public policy considerations.
LEGAL FRAMEWORK GOVERNING WILLS IN NIGERIA
- Wills Act 1837
- Wills Laws of each state
- Customary and Islamic law
Requirements of a Valid Will
For a will to be valid under Nigerian law, certain legal requirements must be satisfied.
- Testamentary Capacity
This refers to the legal and mental ability of a person to make a valid will. It is a fundamental requirement, and any defect in capacity may render the will invalid.
- Full Age
The testator must have attained the age of majority. In Lagos State, the minimum age for making a valid will is 18 years, as provided under Section 3 of the Wills Law of Lagos State.
An exception exists for soldiers in active military service and seamen at sea[7]. They may make valid wills notwithstanding that they have not attained full age[8].
- Sound mind (Mental Capacity)
The classic legal test for testamentary capacity was established by the court in Banks v Goodfellow[9]. The testator must be of sound mind at the time of making the will[10].
He/she must
- understand the nature of the act and the effect of making a Will,
- be aware of the extent and character of the property being disposed of,
- know the persons who are the natural objects of the testator’s bounty,
In Okelola v. Boyle[11], the court held that:
“No person is capable of making a Will who is not of sound mind, memory and understanding. The testator’s mind must be said to be capable of forming the testamentary intentions in the Will. His memory must be sound to recall the several persons who ought to be considered as his possible beneficiaries.”
Any will made under conditions of mental incapacity, insanity, or serious impairment of understanding may be declared invalid.
- Voluntarily Act
The testator must have acted voluntarily, the Will must not have been procured through undue influence, fraud, or coercion.
Restriction to Testamentary Freedom
Although Section 3 of the Wills Act 1837 stipulates that there is no restriction to testamentary freedom. However, the right of a person to distribute his property is restricted to certain customary, statutory and religious provisions that apply to the testator/testatrix[12]. While statutory law govern Wills made by persons subject to it, customary law continues to apply to devolution of property among persons subject to native law and custom. Many ethnic groups in Nigeria have well-established customary rules of inheritance that operate independently of statutory Wills law. For instance, under Yoruba customary law, property may devolve under the Ori-Ojori or Idi-Igi systems of inheritance, while Igbo customary law has its own rules, particularly relating to land and family property. These restrictions include:
- Customary Limitation: Section 3 of the Wills Law of the former Western Region subjects the testamentary freedom of a person to the applicable customary law. For example, in the case of Idehen v. Idehen[13]where the testator bequeathed 2 of his houses referred to as Igiogbe in the Bini Customary Law, it was held that such devolution to a person other than the eldest surviving son is invalid.[14]
- Islamic Law Limitation: This limitation is included in the Wills Law of Kaduna State, Oyo State, Kwara State, Bauchi State, Jigawa State and Plateau State. It stipulates that a person subject to Islamic law immediately before his death cannot dispose of more than one-third of his property by will[15]. This was held in the case of Ajibaiye v. Ajibaiye[16]where contrary to the wishes of the testator to exclude the application of Islamic law in disposing of his property, it was still held to be applicable, and the will invalid.
- Provision for Family and Dependents: This is recognized by statutes. Section 2 (1) of Wills Law of Lagos State provides that notwithstanding the provisions of a testator’s/testatrix’s will, the wife or husband as the case may be or the children may apply to the court on the ground that the dispositions in the will did not make reasonable financial provisions for his dependents. The application is made at the High Court of a State. Subsection 3 of the same provision stipulates that the application must be filed within six months from the grant of probate.[17]
Forms of a Valid Will
Section 4 of Wills Law of Lagos state provides that
No Will shall be valid unless:
- It is in writing;
- It is signed by the testator or signed in the testator’s name by some other person in the presence and by the direction of the testator, in such place on the will so that it may be apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as the testator’s will;
- The testator makes or acknowledges the signature in the presence of at least two witnesses present at the same time;
- The witnesses attest and subscribe the Will in the presence of the testator, but no form of attestation or publication shall be necessary.
Contents of a Will
A well-drafted Will should contain the following provisions[18]:
- The full name of the testator
- Address
- Date
- Revocation clause – A declaration revoking all previous Wills and codicils made by the testator.
- Particulars of beneficiaries – The name of the beneficiaries and their addresses.
- Appointment clause- Naming one or more persons as executor(s) to administer the estate. For testators with minor children, a guardian may be appointed to care for them in the event of the testator’s death.
- Charging Clause- This clause allows the personal representative or any person acting in that capacity to charge for any service they render, otherwise, their services would be taken rendered gratuitously.
- Gifts (Specific gifts & Pecuniary legacies)- Disposition of specific items of property such as land, vehicles, jewelry, or sentimental items, cash or money in bank accounts to named beneficiaries and the location of such item.
- Residuary clause – A provision disposing of all property not otherwise dealt with. This is very important, as the absence of it will lead to partial intestacy and require a letter of administration.
- Executor’s power – A clause conferring wide powers on the executor to administer, invest, and manage the estate[19].
- Substitution clause – This applies where any gift fails or ceases to exist at the death of the testator
- Execution and Attestation Clause- a provision which records the manner in which the document was signed by the testator and attested by the witnesses
Conclusion
Wills remain a crucial instrument for effective estate planning under Nigerian law, enabling individuals to control the distribution of their assets after death. Although testamentary freedom is recognized, however, it is subject to statutory, customary, Islamic law limitations and public policy considerations.
In a society where inheritance disputes are not uncommon, the importance of a valid and well-structured Will cannot be overstated. It stands as a powerful instrument for achieving order, fairness, and peace in the administration of estates ensuring that even in death, the testator’s/testatrix’s intentions continue to speak with clarity and authority.
The validity and effectiveness of a Will depends on compliance with legal requirements and careful drafting. A well-prepared Will not only reflects the testator’s intentions but also minimizes disputes and ensures an orderly administration of the estate. Individuals are strongly encouraged to seek professional legal guidance when preparing their Wills.
[1] Wills Act and the Requirement under the Nigerian Law, Manifield Solicitors. Available at https://manifieldsolicitors.com/wills-act-and-the-requirements-under-the-nigerian-law/
[2]ibid
[3] What is a Will?, AALAWSNG. Available at https://aalawsng.com/what-is-a-will/
[4] Legal Requirement of Making a Valid Will in Nigeria, Mae. Available at https://maeadeolalaw.com/legal-requirements-for-making-valid-will-nigeria/
[5] The Legal Requirement of a Valid Will, A.O Legal. Available at https://aolegal.net/faqs/the-legal-requirements-of-a-valid-will/
[6] ibid
[7] ibid
[8] ibid
[9](1870) LR 5 QB 549
[10] ibid
[11] (1998) 2 NWLR (PT. 539)
[12] Overview of Wills Law in Nigeria, Resolution Law firm. Available at https://www.lexology.com/library/detail.aspx?g=a8acaee8-4da0-49c4-bcb5-a39e7dedf211
[13](1991) 6 NWLR (Pt. 198) 382
[14] A.K. Sandabe, The Concept of Wills in Nigeria: Reflection on the Freedom and Limits of Testamentary power. Available at https://rsisinternational.org/journals/ijriss/articles/the-concept-of-wills-in-nigeria-reflections-on-the-freedom-and-limits-of-testamentary-power/
[15] ibid
[16](2007) All FWLR (Pt. 359) 1321
[17]Limitations to Testamentary Freedom, Chaman LawFirm. Available at https://chamanlawfirm.com/limitations-to-testamentary-freedom/
[18] Drafting a will: Key considerations under Nigerian Law, The Trusted Advisors. Available at https://www.trustedadvisorslaw.com/insights/drafting-a-will-key-considerations-under-nigerian-laws
[19] ibid
This article is provided for general educational and informational purposes only and does not constitute legal advice or create a solicitor-client relationship.