How to prepare a will in Nigeria; Understanding the basics.

To know how to prepare a will in Nigeria, it is important to understand certain definitions and concepts surrounding the making of a will.

What is a will?

A will is a testamentary document made voluntarily with a sound disposing mind by a testator, duly executed according to law where he disposes of his property according to the wills law and gives directives as he may deem fit. A document is not a will unless it is testamentary i.e. unless it speaks from death. A testator is the maker of a will. A female maker of a will is called a testatrix.

What is a codicil

A codicil is a miniature will which could add to, vary or revoke part of a will. It has all the attributes of a valid will. It must comply with the same requirement as to the essential and formal requirements of a will. A codicil cannot exist on its own, it must supplement an existing will.

Uses of codicil

1. To amend a will
2. To revoke a will
3. To revive a will and
4. To republish a will

How to prepare a will in Nigeria; Types of wills

1. Holographic wills : This is the will entirely handwritten and executed by the testators.
2. Customary/ nuncupative wills : This is an oral will made in contemplation of imminent death from injury recently incurred. This is usually done in accordance to customary laws. However, an oral will under customary law is not valid unless the following conditions are satisfied: i. It must be made voluntarily. ii. The testator must have a sound mind. iii. It must name the beneficiary. iv. It must be in the presence of witnesses and v. It must identify the property.
3. Joint will :This is a single will executed by two or more testators by which they give out their common property by transferring their separate titles to one person.
4. Lost will : This is a duly executed will but which cannot be found at the time of testator’s death but the contents can be proved by oral evidence.
5. Mutual will : This is where two persons usually a husband and wife establish identical or similar testamentary provisions disposing of their estates in favour of each other in their separate wills.
6. Privileged will : This is a will made under concession or exception to the rule that a person below 21 years cannot make a will.
7. Condition will : This type of will is made subject to the occurrence of a particular incidence.
8. Pre-nuptial will: This is a will made before the celebration of marriage between couples. The couple are usually in contemplation of a marriage before making such will.
9. Non – intervention will: This is a will that authorizes the executor to settle and distribute the estate without court supervision.

Reasons/ Advantages of making a will

There are many advantages of making a will which we discussed extensively here.

Disadvantages of making a will

1. It is believed that people kill testators before their natural death because of greed, having been aware of a will and the benefit to be accrued to them upon the demise of the testator.
2. The trustees could convert the property after the death of the testator especially in case of secret will where it is hidden from people.
3. Psychological thought of death approaching faster than natural is possible especially for the negative thinking persons.
4. It is against some culture especially in Nigeria where it is believed that every property owned belongs to the husband. As a result, a woman has no property to dispose of in a will.

How to prepare a will in Nigeria; Principle of due execution of a will

1. Signature: A will must be in writing and signed by the testator himself or by another person in his presence. Where the testator is an illiterate, the will should contain a jurat to show the testator’s approval and acknowledgement for the will. It should contain the language and name of the interpreter and his signature. A will may be valid even though the signature appears at or after, following, under, beside, opposite or at the end of the will, but no gift or bequest or bounty should come after the signature. Any gift that falls under the signature will fail but the will is still valid.
2. Presence of witnesses: A will must be signed in the presence of at least two witnesses present at the same time. Presence in this case means visual presence, thus a blind man cannot attest to a will. The witnesses must see the act of the testator signing and must be both present. They must not sign before the testator. The witness need not sign in the presence of each other but they must sign in the presence of the testator. The testator can ask another person to sign the will on his behalf in the presence of two witnesses. He can acknowledge the signature of another person there before the two witnesses. A witness cannot sign for the other nor can a third party sign for him. He must sign himself.

Effects of being a witness in a will

If a will is not duly executed, the entire will is invalid. But where a witness is a beneficiary, the will is still valid but the gist given to such a witness will fail. It is important to note that a witness need not know the content of a will.

What constitutes a signature?

1. Thumbprint
2. Sign or mark
3. Direction to somebody to sign in one’s presence.
4. Rubber stamp.

How to prepare a will in Nigeria; Capacity to make a will

1. Age: for one to make a will, he must have attained the age of 16 – 21 years. The differences here depends on which jurisdiction is involved. In a state where the Wills Act is applicable, the age of 21 years while some other states stipulate the age to be 18 years. However, persons under this age can validly make a will if they are in active military service or a seafarer. The following persons may execute a privilege will: i. Soldier being in actual military service. ii. A seaman being at sea. iii. A mariner being at sea. iv. A crew of commercial airline in air.
2. Mental capacity: Generally, the law requires that the testator to will must possess the intention to make a will otherwise called animus testicandi. This requirement presupposes that the testator posses the mental capacity which shows a sound disposing mind and memory. The requirement of a sound disposing mind was laid down as follows: i. The testator must have a recollection of his property. ii. He must know that he is involved in giving out the property. iii. He must know the object of his bounty i.e. know the people he is giving the property to i.e. the beneficiaries. iv. He must know the manner in which he is distributing the property. The mental requirement of a will is at two stages. The first stage is when he gives instruction to the Legal Practitioner to document his will. This is usually at the point of giving instruction to draft a will. He must be conscious at this stage.  The second stage is the point of execution of the will i.e. when he is called upon to sign in the presence of two witnesses. He should be able to know that it is the will which he earlier gave instruction to the Lawyer to draft that he is about to sign. Where a person gives instruction to make a will when he is insane and later becomes well, the will is invalid. But when a person makes a will when sane and later becomes insane, the will is still valid.

How to prepare a will in Nigeria; Factors that can vitiate a will

1. Fraud: Fraud can vitiate the validity of a will where it is established that the testator had been defrauded to make a will.
2. Mistake : This could occur where the testator is misled or a mistake is committed in the course of executing the will.
3. Undue influence : Undue influence is capable of affecting the testamentary capacity of the testator because it affects the free will of the testator to dispose of his estate as he desires.
4. Suspicious circumstances :This involves situations where a fiduciary relationship exists between the testator and beneficiary. For example, where the Solicitor who prepares the will is a beneficiary.
5. Insane delusion : Insane delusion is the conception of a disordered mind which there is no evidence. The question of delusion is of fact. Where it is established that the testator has been subject to any delusion, a will made by him should be disregarded with great distrust.
6. A blind man can make a will. However, a blind man cannot in law attest or witness a will because his disability will prevent him from attesting to the making of the will by the testator. Where an illiterate or blind man makes a will, it must be shown that the content was read over to him and he appeared perfectly to understand and approve of same before execution it.

Types of gifts/legacies

There are 5 types of legacies

1. Specific legacy: This is a gift that is specified and identifiable out of a class of gifts. It is important where the testator wants a particular gift to be given to a particular person because of the nature of the gift or kind of person. However, where at the time of a testator’s death, the gift cannot be found, the beneficiary gets nothing because the gift has suffered what is known as ademption. Example of such clause is: “I give my Toyota car which I bought in London to my daughter, Emem-Abasi”. In order to avoid the effect of the principle f ademption, a saving clause may be inserted such that when the gift is not found at the point of the death of the testator, a replacement can be made instead. Such a clause could read as follows; “I give my Toyota car which I bought in London to my daughter, Emem-Abasi and in case the gift is not found at the point of execution of this will, a replacement in money shall be given out of my residual estate by my Executor.”
2. General legacy: This is a gift not identified among the personal property of the testator. It does not suffer the doctrine of ademption. Eg. “I give a car to my daughter, Emem-Abasi”
3. Demonstrative legacy: This is gift of a general nature but directed to be given in a particular place or source e.g “I give to my friend Ekomobong $10,000 from my Zenith Bank Account No: 3007288011″. It must be noted that either a general gift or a specific gift can be demonstrative, that is, showing the source where it is to be obtained.
4. Pecuniary legacy: This is a gift of money eg I gift to Ubong my brother N50,000.00
5. Residuary legacy: This is a gift that remains in the general estate of the testator or certain gifts that fail which was realized after the death of the testator.

knowing the 5 types of gifts will aid you to know how to prepare a will in Nigeria.

Failure of gifts

1. Doctrine of ademption: A gift is said to have suffered ademption or failed where at the time of the testator’s death, the gift cannot be found. However, the insertion of a substitution clause can save the situation
2. Gift to witnesses and their spouses: A person who witnesses a will cannot benefit from the will or his spouse but if he does, the will is still valid but the gift will fail. But where there are other witnesses other than the witness who is a beneficiary of the gift, the gift would be valid.
3. Where the beneficiary causes the death of the testator, the gift fails because a person cannot be allowed to benefit from his wrong.
4. Lapses of gifts: A gift lapses when the beneficiary of a gift dies or predeceases a testator. The gift will lapse since no one can take a gift in a will who does not survive the testator. However, there are exemptions to lapses of gifts as addressed as follows: i. Where the beneficiary before his death has a surviving child of his blood, such a gift will not fail but rather inherited by the surviving blood. ii. Where the gift is given to a class of people in which the gift cannot fail at the death of one of the parties. iii. Where there is a declaration against lapse accompanied with a valid substitutional gift. iv. Where there is a substitutional clause inserted in the will. v. Where the gift is for the satisfaction of debt or moral obligation.

To know how to prepare a will in Nigeria means to avoid including gifts that would fail in your will.

How to prepare a will in Nigeria; How to revoke a will

1. By burning or tearing with intention to revoke: The act of destruction must be glaring at the time the testator manifested his intention to revoke. The destruction must be total. There are two elements that must be fulfilled before a will can be revoked under this heading. i. There must be sufficient destruction. ii. There must be the intention to destroy. Partial destruction coupled with intention depending on the extent of destruction may not revoke the will. Where the will is executed in duplicate, the destruction of one copy with the intention to revoke, is revocation of both wills. The following acts could constitute destruction: mutilation, burning, tearing beyond recognition, cutting or scratching out the signature of the testator and the witness. Where the revocation is done by another person, it must be by his direction and in the presence of the testator. Total destruction is no doubt sufficient destruction.
2. By marriage: Every will made by a man or woman shall be revoked by his or her marriage. The marriage must be lawful, but it does not apply to a customary law marriage. It also does not apply to a will made in contemplation of a marriage.
3. By a later or subsequent will or codicil: A valid will or codicil may be expressed to revoke an existing will with a clear intention of doing so.
4. By a written declaration of intention to revoke the will: For a written declaration to be effective, the document must be executed as a will.

 How to prepare a will in Nigeria; Needed information in preparing a will

1. Personal details through clients interview
2. Requirements of law
3. Extent of the testators bounties/properties
4. Previous will made validly
5. Executors
6. Mode of distribution
7. Directions as to mode of burial

How to prepare a will in Nigeria; Contents of a will

• The full name and address of the testator.
• The names and address of the executors who will be in charge of the testator’s assets and ensure that the wishes under the will are carried out.
• The full names and addresses of the beneficiaries in the will, and where the beneficiaries are minors, the particulars of the guardian appointed for them.
• A full list and particulars of the testator’s assets; all the assets of the testator both real and personal should be listed, and how he wants the assets shared among the beneficiaries.
• The names and addresses of witnesses to the will.
• Funeral arrangements of the testator

We provide Real Estate Attorney services which includes drafting of a will and other will related matters.

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