Definition of a Will
Recently, I was having a conversation with my brother, and he asked me whether I had written a will. I replied in the negative, I told him not to be morbid, that I wasn’t ready to write one yet. My brother retorted that coming from me, a lawyer, my response was absolutely ridiculous. True talk; however, I still found the topic rather unappealing.
Maybe itâ€™s an African thing, I mean not wanting to write a will till we are 80 years old! But the truth is that, a will is extremely necessary, even within a nuclear family, to avoid the controversy and litigation that arises from the absence of one. Blackâ€™s law dictionary defines a Will as â€œAn instrument by which a person makes a disposition of his real and personal property, to take effect after his (her) death, and which by its own nature is ambulatory and revocable during his (her) lifetime….â€. A will may have a Codicil which is also defined by Blackâ€™s as â€œA supplement or an addition to a will, it may explain, modify, add to, subtract from, qualify, alter, restrain or revoke provisions in existing willâ€. There are several types of wills, but what usually obtains in Nigeria, is the written will prepared by a legal practitioner.
Elements of a Valid Will
Generally, by virtue of the Wills Law of Lagos State (WLLS), a Testator (the deceased maker of a will) must be at least 18 years of age (Section 6 of the WLLS mentions who can dispose of his/her estate before attaining the age of 18). However, some states have different legal ages. For example, while the legal age in Oyo and Kaduna States is also 18, that of Abia State is 15. A Testator must be of sound mind (at the time of writing the will and at the time of execution of the will), the will must not have been prepared under any form of duress, it must be in written form (oral wills may be acceptable for sailors and men in the military type services), the will must be signed by the Testator (or thumb printed or marked in the case of an illiterate or a person that may be disabled) and must be acknowledged in the presence of 2 witnesses, who must also sign in the presence of the Testator. It is advisable that a legal practitioner prepares the will and assists the Testator to fulfil the conditions required for the will to be valid. The will should be sealed and deposited at the Probate Registry for a very reasonable fee, to be opened upon the Testator’s death.
A Testator Need Not be Fair
However, I must say that, writing a will does not always end up in a peaceful resolution between family members. There was a matter which I handled for a client of mine some years ago. The matter involved a Testator who had left all his â€œworldly possessionsâ€ to only one out of his eight or ten children, even specifically excluding one of the children. Will or no will, the others were having none of it. All the other children seemed to have been born out of wedlock, except the sole beneficiary. Was this the reason why the Testator wrote his will the way he did? He alone, knew the reasons for his actions. And yes, he was only about 45 years old when died and was of extremely sound mind. All the steps that were required to be taken for a will to be valid, this Testator took.
The other children, subsequently, tried to forcefully take a few of the properties. They filed case upon case in the courts, and went all the way to the Supreme Court, so much so that, their family matter became one of the â€˜locus classicusâ€™ on wills and sharing of estates.
Over 40 years after the Testatorâ€™s death, the other children are still looking for loopholes to contest his will. The bottom line is that, a will does not have to be fair, nor do the assets included in it, distributed equitably. A Testator is free to distribute his possessions as he/she pleases or deems fit. Family trouble makers, please, take note.
Wills can spring a lot of surprises and nasty shocks. Yes, sometimes a will can be â€˜pay back timeâ€™, and sometimes, they even reveal life long secrets. For instance, the Testator reveals in his will that, the reason why he has excluded 1 of his 4 children from inheriting, is that he always knew that that particular child was not his own, even though his wife passed the child off as one of his! Or that he has 2 children out of wedlock, whom he has decided to leave the bulk of his estate to, since he had never acknowledged those children during his lifetime, while taking care of the products of his marriage excellently.
As a child, I remember going with my father to visit a friend of his. We met a woman whom I had never seen before, and her 2 children, also visiting the man. I was however, sharp enough to figure out that the woman was the manâ€™s â€˜girlfriendâ€™ and the 2 children were the products of their relationship, obviously unknown to the manâ€™s wife and his family members! The girlfriend and her children did not understand Yoruba, and not knowing that I was fluent in Yoruba, the man proceeded to tell my father that, this was his secret and it would remain buried until his will was read!
There is the law of intestacy which sets in, if the deceased was married under the Marriage Act to his/her spouse, and did not leave a will, that is, died intestate. In that situation, State law which regulates intestate succession, will determine what happens to the deceasedâ€™s property. Section 49 of the Administration of Estates Law of Lagos State (AEL) provides that the spouse shall inherit one-third of the deceasedâ€™s estate, while the deceasedâ€™s children shall inherit the balance two-thirds. It also deals with succession in other circumstances like where there is a spouse and no issue and vice versa, and also collaterals (siblings, parents etc). It does not matter whether such a child of the deceased is not a product of the marriage of the deceased. The effect of Section 42(2) of the 1999 Constitution of the Federal Republic of Nigeria, which precludes discrimination against a person by reason of birth, is that there is no legal distinction between children born in or out of wedlock.
Section 26(1)(a) of the AEL permits any beneficiaries or persons who have an interest in the deceasedâ€™s estate, to apply for the issuance of Letters of Administration (applicants should not exceed a maximum of 4 persons). These days, with the advent of DNA testing to ascertain the parenthood of an individual, it may be wise to request that an individual who suddenly â€˜pops out of the wood workâ€™ claiming to be a child of the deceased, undertakes a DNA test to confirm the paternity (or maternity) first.
The issue of collaterals, inheriting in the case of intestacy, sets in only when there is no wife and no children. Again, family troublemakers, please, take note!
I remember as a fairly young lawyer, handling a case where the deceased, a man of Igbo extraction, had been married under the Act to his wife, and their marriage produced 6 children. The eldest at the time of his death was about to turn 18, and so we applied for Letters of Administration, for the widow and another person as Administrators, pending the time the first daughter would turn 18. When we did an advertisement in the newspaper, the deceasedâ€™s siblings raised an objection, claiming that they were entitled to the manâ€™s properties, 5 out of the 6 children were girls (the youngest was a little boy), basing their allegation on a whole lot of foolish reasons. They had started to strip the deceasedâ€™s factory and also wanted to evict the widow and her children from their home.
I rushed to court to get an injunction against the siblings, to stop them from interfering with the deceasedâ€™s factory, which was the sole means of livelihood for his nuclear family, and to settle the issue of the estate. The widow had 6 children to educate. Needless to say, it was one of the first cases that I won in court in my practice as a lawyer! I felt so strongly about the injustice, family members ready to throw their brotherâ€™s family onto the streets of Lagos with nothing, and take what did not belong to them, to utilise for the benefit of their own families. I was having none of it, and I was ecstatic when justice prevailed, the court upheld our right to obtain the Letters of Administration for the widow, excluding the siblings.
My friend’s 80 something year old father recently told me that they had just settled his late father’s estate. I found it so amusing. His father had died intestate in the 1970s, and he and his siblings had squabbled over the estate for over 40 years. Of course, “awon omo won lo ma jere ogun yen” (it will be the children of my friend’s father and the children of his siblings that will reap the benefits of that inheritance)! They had already spent most of their lives fighting for it.
When you weigh the pros and cons of leaving a will, the advantages far outweigh the disadvantages. The conclusion? It is still safer to leave a will. The best way to exclude those that you do not want to benefit from your estate, is certainly to write them out of your will!