Making A Will In Nigeria 1

A Will is defined as “a document by which a person (called the testator) appoints executors to administer his estate after his death, and directs the manner in which it is to be distributed to the beneficiaries he specifies” – Re Barnett, Dawes v. Ixer (1908) 1 Ch. 402.
A Will could also be defined as a testamentary instrument voluntarily made, executed and attested to law by which a person makes a deposition of his real property, to take effect after his death. The maker of the document is called a testator (or testatrix where the maker is female).

Until the death of the testator, a Will is a mere declaration of intention.  Thus, it could be changed as often as the testator wishes. For that reason it is described as Ambulatory, meaning that it roves, that is, moves, unfixed until the death of the testator when it crystallizes into an instrument of disposition. A beneficiary under a Will where the testator is still alive has a mere “Spes” or “Hope and not any interest in the property as the testator can always change his mind at any point in time. This character distinguishes a Will from a conveyance or other dealings inter vivos in property, which has immediate effect or has effect from a known date in the future.


From the above, a Will is ambulatory because it “speaks from the grave upon Death” for this same reason it is testamentary (the book of Hebrews 9:16-17).
Section 9 of the Wills Act, and section 4 of the Wills Law of Lagos State requires that every Will shall be in writing; it therefore invalidates a nuncupative (oral) Will. However, under customary law, an oral will is valid. In Bankole v. Tapo (1961) 1 All NLR 140, an oral disposition of land by a testator was upheld to be sufficient to transfer the property to the beneficiary.
Though, the essence of the requirement of a Will to be in writing is to prevent fraud. It should be, however, noted that for an oral Will to be valid under the customary law, it must satisfy the following conditions –
1.     It must be made voluntarily;
2.     The testator must be of a sound mind – Banks v. Goodfellow (1870) LR 5 QB 459;
3.     It must name the beneficiary or beneficiaries - ;
4.     It must be in the presence of witnesses – Ayike v. Ibiduni (1959) 4 FSC 280;
5.     It must identify the property.
A codicil is a mini and supplementary Will by which a testator changes what is contained in a Will by adding, altering or revoking. All principles on capacity and validity of a Will apply to codicils also.
There are several types of Wills. They are –
1.     STATUTORY WILLS – This is regulated by the relevant statute. Strict compliance is required for the validity of the Will.
2.     NUNCUPATIVE (ORAL) WILLS – This is an oral Will made before two or more credible witness. It is not a condition precedent that the maker of this type of Will must be on his death bed (death-bed wishes) in order to be valid – Adeyinka v. Ibidunni (1959) 4 FSC 282.
3.     WRITTEN CUSTOMARY WILLS – There is no consensus on the acceptability of this type of Will in Nigeria. It does appear however that acceptability by the surviving members of the family and the genuineness of the written document purporting to be ‘customary Will’ may confer some measure of validity on the gifts contained in it.
4.     MUTUAL WILLS – This is where two or more persons execute the same Will, conferring mutual benefit or reciprocal benefits on each other. It is common between husband and wife. In this, none of the testators can revoke or amend without the consent of the other.
5.     JOINT WILLS – This is like a mutual Will, but it is where two or more persons execute the same Will by which they give out their personal or joint properties to beneficiaries of their choice. Though it is in one document, it is seen as separate Wills of the testators.
6.     HOLOGRAPH WILLS – This is a Will made in the handwriting of the testator which lacks some of the basic pre-conditions for a valid Will. In most cases, holographic Will may not preclude intestate devolution of the estate of the testator.
7.     PRENUPTIAL WILLS – This is a Will made by any of the spouses before marriage. Generally, marriage under the Act revokes a Will by operation of law.
8.     PRIVILEGED WILLS – This is another form of nuncupative Will but made by a certain category of persons accorded special privilege to make a Will without necessarily complying with the statutory requirements. This category includes persons in active military service, regardless of his rank – section 11 of the Wills Act, 1873.
9.     CONDITIONAL WILLS – This is a Will that is executed by a testator and made subject to a condition.
1.                A will displaces the application of the rules of customary law to a person’s estate upon intestacy – Sogbesan v. Adebiyi (1941) 16 NLR 26.
2.                The testator has a satisfaction of having ordered his affairs before his death, that is, the case of family property which would have resulted upon intestacy would be forestalled. The devise will operate to vest separate and individual interest not communal interest upon each beneficiary. It will also specify the quantum of interest of each beneficiary.
3.                A will displaces the application of the rules of statutory devolution, that is, the rule in Cole v. Cole (1898) I NLR 15; section 49 of the Administration of Estates Law, Laws of Lagos State.
4.                The testator has the satisfaction of benefiting those he loved or owed a duty of care – Maja v. Johnson.(1951) 13 WACA 290
5.                The testator has the benefit of appointing people he trusts as his executors, who has the duty to carry out his wish.
6.                Trusted persons can be appointed as guardians of testator’s infants (young children).
7.                Executors of a will’s power of execution arises immediately upon death not contingent on the Will being proved as in the case with issuance of letters of administration upon intestacy. Thus, wide powers can be conferred on executors.
8.                It gives the testator the opportunity of making specialty gifts, that is, showing generosity to other people e.g. organisation donation for whatever purpose.
9.                The testator is given the opportunity to give his funeral directives.  Point to note – is that; this should be in a separate document kept in a place or with a person accessible for it when needed.
10.             Upon the death of the last of those issued a grant of letters of administration, a fresh grant has to be applied for and obtained. Whereas, by transmission, the executors of the Will of the last surviving executor could complete the winding up of the estate of a testator. Thus, probate is cheaper to secure than letters of administration.
Every person with a sound mind can make a Will. Section 3 of the Wills Act, 1837 provides thus –
“It shall be lawful for every person to devise, bequeath, all properties or dispose of, by his Will executed in 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 his death, and which, if not so devised, bequeathed or disposed of, would devolve upon the heir at law...”.
Thus, persons of requisite statutory age, with a sound disposing mind and memory can make a Will notwithstanding his tribe, religion, or physical status – Apatira v. Akanke (1944) 17 NLR 149.
The following persons can also make a Will –
1.     A MOSLEM
The nature of a Moslem to make a Will depends on the State where the testator is domiciled (residential home). In States that apply the Wills Act, testators have unrestrained right to dispose their properties notwithstanding their Islamic faith.
In Adesubokan & Ors. v. Yanusa (1971) All NLR 227, where the testator, Yunusa Atanda Saibu, a native of Lagos died without sharing his properties equally amongst his children, the plaintiff/respondent challenged the validity and sought a declaration that the probate dated 29/6/66 granted to the defendant be revoked as the said Yunusa Atanda Saibu (deceased) was a Moslem, died as a Moslem, and left heirs and wives who were all Moslems. The trial court set aside the probate on the ground that the testator has right to make a Will and must ensure equal share of his properties amongst his sons since his properties were located in Zaria. On appeal, the Supreme Court held that the Maliki Law which favours equal distribution clearly violates the provisions of the Wills Act, 1837 under which a testator can dispose of his properties, real and personal, as he pleases.
By section 34(1) of the High Court Law, nothing in the High Court Law shall deprive any person of the benefit of any native law or custom including Moslem law which is not incompatible directly or by implication with any law being in force. And in the above case, the Wills Act, 1837.
It must, however, be noted that in States where they have their own Wills Law having restriction on Moslem testators who are Moslems can only make Wills in accordance with Islamic injunctions on inheritance, which is in accordance with the Maliki Law. For example, section 3(1) of the Wills Law, Oyo State; and section 3(1) (b) of the Wills Law, Jigawa State.
It has been suggested that it is better for a Moslem in these States (Oyo and Jigawa) not to bother to make Wills, as the mode of disposition is already spelt out for them under the Maliki Law – Prof. Sagay.
A disabled person can validly make a Will. Notwithstanding his disability, a blind person can validly make a Will – Insitful v. Christian (1951) 13 WACA 347; Agidigbi v. Agidigbi (1996) 6 NWLR 454.
However, when a blind person is making a Will, it must be shown that the Will was read over to him and he perfectly appeared to understand the contents affixing his hands to it. Order 49, Rule 23 of the High Court of the Federal capital Territory, Abuja provides that where the testator is blind or illiterate, a court shall not grant administration with the Will annexed unless the court is satisfied by proof or by what appears on the face of the Will that the Will was read over to the deceased before its execution or that he had at that time knowledge of its contents – Henry Charles Christopher v. Samuel Insutful Tawiah 13 WACA 347.
A Will requires some formal as well as informal or intrinsic conditions to be valid. The formal requirements are that the Will must be in Writing and must be duly executed.
Section 4 of the Evidence Act provides that a document [Will] shall not be deemed to have been made by a person unless the document or the material part thereof was written and signed or otherwise acknowledges its authenticity.
Where a Will is regular on its face, it enjoys the presumption of due attestation. This is the implication of the common law maxim – Omnia praesumuntur rite esse acta. Thus, the court will deem that a Will is duly executed where it appears on its face to be ex facie regular based on the Omnia maxim.
As long as it is clear what the intention and wishes of the testator are, the court will not, except in few cases, allow formalities to frustrate those intentions – Rolleston v. Sinclair (1924) 2 IR 157. Presumption will be made in favour of Wills which on their faces appear regular even where the witnesses are unable to recollect the circumstances of the execution of the Will.
In Foot v. Santon (1856) 164 ER 489, a Will was attested by two persons and neither of them recollected the circumstances, although they recognised their signatures. The Will was presumed duly executed.
The presumption of due execution will apply depending on the circumstances of each case. Where the Will appears ex facie to have been duly executed, the presumption applies. If the form is irregular and unusual, the presumption will not apply. In the case of In the Estate of Randle (Nelson v. Akofiranmi) (1962) ANLR 130, the court applied the presumption of due execution to admit the Will to probate, even though the testator only put his thumb-impression and the witnesses signed above the thumb-impression. Since the Will had an attestation clause, it was presumed as duly executed. The court further held that the guiding principle should be a consideration of the “whole circumstances of the case”.
The burden of proving is on the propounder of the Will. Thus, the onus is on the party who propounds it to show clearly that prima facie, it is duly executed (primary burden of proof). If this is discharged, the burden will shift to the other party challenging its proper execution (secondary burden of proof) to prove that the Will is not properly executed or that it is tainted with fraud or forgery – Adamu v. Ikharo (1988) 4 NWLR (Pt. 89) 478.
It should be noted that proving due execution of Wills may be in the reversed order in courts because in Civil cases, “the party who asserts must prove”, but this is not the case in probate cases (it is the reverse).
The propounder must also prove testamentary capacity – that the document is the last Will of a free and capable testator. Once it has been proved that a Will has been executed with due solemnities by a person of competent understanding and apparently a free agent, the burden of proving that it was executed under influence is on the party who alleges it – Johnson v. Maja (1951) 13 WACA 920.
Positive and relative evidence must be proved in proving due execution of Wills, and the evidence must be affirmative – Lawal Osula v. Lawal Osula (1995) 9 NWLR (Pt. 419) 259; (1993) 2 NWLR. The presumption is not rebutted for failure of witnesses to remember or know details – Blake v. Knight Vol. 163 E. R 821. If witness states that there was no due execution and this is not rebutted, the Will, will be pronounced against it.
Section 276(1) of the Armed Forces Act makes an exception to the general principles of due execution of Wills.
Section 105 of the Act states that a Will made by a person subject to service law shall be valid for disposing of any money or personal property which is due or belongs to him at his demise if it is in writing and signed or acknowledged by him in the presence of, and in his presence attested by one witness, being an officer of the forces or any government official.
This means that under the Act, a Will made by a person does not require the general presence of at least two witnesses, but only one witness, and the witness must be either an officer of the armed forces or any government medical officer. However, such a Will must satisfy the following conditions –
1.     The testator must have a sound mind;
2.     The Will must be his act, the exercise of his voluntariness;
3.     The Will must be in writing; and
4.     The testator must sign or acknowledge the Will.
Testamentary capacity means legal capacity to make a Will. The law requires that a testator must have a sound disposing mind both at the time of giving instructions and execution of the Will.
Section 3 of the Wills Acts 1837 as earlier stated gives freedom of testation to everybody. Testamentary capacity of a person makes a person’s freedom of testation subject to any customary law relating thereto to which a testator was subject in his life time. Thus, a person’s right of testation was held by the Supreme Court to be limited by the customary law relating to that class of property as it is provided by customary law not to be devisable by will. The locus classicus are Lawal Osula v. Lawal Osula (supra), Agindingbi v. Agindingbi (supra), etc.
These cases arose from the Benin Customary law relating to the devolution of the property where a testator lived and died called Igiogbe. The testator’s first son is by customary law the rightful heir to the Igiogbe and a person cannot by his will based on statutory freedom of testation devise the property to any other person not being his first sonIn Egharevba v. Oruonghae (2001) 11 NWLR (pt 714) 318, the Court of Appeal sitting in Benin reiterated this position. The section would also seem to limit the freedom of testation of a person who practices the Moslem faith. Such a person’s testamentary freedom especially in the States that have adopted the Sharia as part of the States’ Laws is limited by Islamic injunction with respect to devolution of the property of a person of Moslem faith. The person’s freedom of testation is limited to devising by Will not more than one-third (1/3) of his estate. The remaining two-third (2/3) shall be divided amongst recognized beneficiaries in a manner provided by the Sharia Adesubokan v. Yinusa (supra).
Also, section 2 of the Wills Law of Lagos State which operates to protect the interest of persons not favoured or disinherited by the testator but who have legal claims on him e.g. his wife or wives, or husband, or children of the deceased. Such a person can apply to the court for adequate provision on the ground that the deceased did not make reasonable financial provision for the applicant. The court in that case can intervene to ensure there is equity in the distribution. This right is only exercisable within six (6) months of grant of probate following which it becomes statute barred.
a.              Section 7 of the Wills Act, 1837 puts the age at which a person acquires testamentary capacity at twenty one (21) years. Section 7 provides that no Will made by any person under the age of twenty one (21) shall be valid. However, under section 6 of the Wills Law, Lagos, Testamentary capacity in Lagos State is eighteen (18) years. Section 3(i) of the Family Law Reform Act of England 1969 puts the age of Testamentary Capacity of Wills made from 1st January 1970 at eighteen (18) years also. The only exception to this rule are people who are allowed to make privileged Wills by virtue of section 11 of the Wills Act, that is, a seaman or mariner at sea or Soldier in actual Military Service in respect of his personal estate. Such a privileged testator is also not restricted by the formalities of execution and witnessing laid down in section 9 of the Wills Act.
b.              The testator must not be unduly influenced by any other person. The will must be truly his.  He must have knowledge of and approve every part of it – Eyo v. Inyang (2001) 8 NWLR (pt 715) 304.
c.              There must also be a mental state of the testator. A person is said to have mental capacity to make a Will when he is corpus mentis, that is, has a  sound and disposing mind at the time he gave instructions, and at the time he executed the Will – Adebajo v. Adebajo (1971) 1 ANLR 599.
A person is said to have mental capacity as laid down in Banks v. Goodfellow (supra), where it was held that what constitutes a sound and disposing mind is a question of fact that a person who can converse rationally and conduct his business is not sufficient to prove mental capacity. The most prominent issues of incapacity arise from unsound mind, senility, drunkenness and undue influence. The propounder of a Will has to prove the testator’s mental capacity where it is in issue.
The following tests were put forward in the judgment by Cockburn C.J. in the case of Banks v. Goodfellow (supra) –
1.              The testator must understand the nature of the act that he is making his will and its effect.
2.              He must understand and recollect the extent of the property of which he is disposing.
3.              He must understand and appreciate the nature and extent of the claims upon him by both of those whom he is including from his Will.
4.              The manner in which the property is distributed must be rational that no disorder of the mind has poisoned his affection or perverted the exercise of his will.
Though anybody can be a witness, but there are grave consequences on the witness or spouse of the witness especially as the gifts made in the Will are concerned. It is however not advisable for a beneficiary to be a witness because according to section 15 of the Wills Act, the Will remains valid notwithstanding its attestation by a beneficiary, the witness-beneficiary and the spouse of the witness-beneficiary, and the spouse lose the benefit of any gift made to them. Thus, a witness who benefits under a Will loses any property or benefit taken. The same rule applies to the spouse of a witness (that is, a spouse at the time of attesting the Will, and not one who marries a witness after attesting the Will). However, a witness who benefits is not prevented from testifying to prove the execution of such Will or its validity.
Section 8 of the Wills Law, Lagos State provides the following –
1.     A person attesting a Will shall not benefit under the Will; any gift made to such person shall be utterly null and void.
2.     The disqualification of gifts to beneficiary-witness extends to his or her spouse, that is, the spouse of a witness to a Will cannot take any benefit under the Will.
3.     A benefiting witness is only disqualified from taking the gift made under the Will, but he is a competent witness to testify on the facts of due execution of the Will.
4.     Where the Will is still duly executed, if the signature of the benefitting witness is disregarded, the benefitting witness can still benefit from the right made in the Will. This is in cases where there are at least three (3) witnesses to the Will, the beneficiary can still keep his gift if the courts discountenance the attestation of the beneficiary so that there will be at least two (2) witnesses to validate the Will.
A solicitor owes the client the duty to explain to him that a beneficiary or spouse cannot be a witness to a Will due to the consequences, but where the solicitor fails to do such, he will be held liable for negligence – Ross v. Counters (1980) Ch. 297.
These are –
1.     Gifts made for settlement of debt.
2.     Marriage between witness and spouse-beneficiary after execution of a Will.
3.     Witness or spouse holding gift in trust for another person.
4.     Where a gift is confirmed in another Will.
5.     Where there are more than two (2) witnesses.
6.     Where attestation is not mandatory (privileged Wills).
7.     Where beneficiary signs a Will not as a witness but merely to confirm acceptance of legacy less than his entitlement.
8.     Gifts in a Will saved from revocation under the doctrine of relative revocation
9.     Where the witness became a solicitor to the estate provided there is a charging clause.
In Ize-Iyamu v. Alonge (2007) All FWLR (Pt. 371) 1570 at 1587, the trial court held that for a Will to be valid –
1.     It must be in writing;
2.     It must be signed by the testator or his representative, and dated;
3.     The signature of the testator must be witnessed by at least two witnesses;
4.     The witnesses must attest and subscribe the Will in the presence of the testator; and
5.     The signature of the testator shall be at the foot or end of the Will – section 4(1) of the Wills Law, Lagos State. Though this is no longer necessary as the signature can be anywhere, as long as there is a signature and it is apparent from the face of the Will that the testator intended by his signature to give effect to the will – Wills Amendment Act 1852.

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