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Writing a will is not a rocket science, therefore, anybody who follows this article and understands it will be able to write his own will without stress. This article intends to explain the procedure of writing a valid will in Nigeria with reference to the testator, content, the beneficiaries and forms of writing it. It is also the intent of the writer of this article to arouse awareness in people about the inevitability of death and the need to write one’s will before death comes knocking to avoid using the properties against the intent of the owner of the properties.
What is a will?
A will is an instrument by which a person makes disposition of his real estate and personal property, to take effect after his death. A will could be revoked or amended by the maker during his life time as many times as he wishes. The one who writes a Will is known in law as a Testator.
The LAST WILL and TESTAMENT is the last will made by the testator before his demise. The last will revokes the previous will. The need to revoke a previous will and make a new one usually occurs where the testator intends to change the way his property should be distributed after his death. Where the testator intends to add some things to the will he might just prepare an addendum called codicil.
A Will states what will happen to the testator’s assets after his death. This includes, but is not limited to, your estate, property, possessions, money and children. The consequences of not having a will are quite serious.
A Statutory Will is one made in accordance with the provisions of the relevant statutes in force. Some of the relevant laws governing Will in Nigeria include the Wills Act 1837, Wills Act Amendment Act 1852, Wills Law of Lagos State etc.
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The Requirements of a Valid Will in Nigeria
1) A Will must be in writing by virtue of the provision of Section 9 of the Wills Act. The essence of the requirement of a will to be in writing is to prevent fraud. You can also find this provision in section 4 of the Wills Law of Lagos State which also requires a will to be in writing.
2). Testamentary Capacity
The maker of the will must also have testamentary capacity both at the time of giving the instructions to write his will and the time of the execution (signing) of the will for the will to be valid in Nigeria. Testamentary capacity means mental competence to make a will. The testator must also understand that he is making a will, know the nature and extent of his property and be able to recall the people who might be expected to benefit from his estate. These are necessary and incidental to ascertain whether or not the testator was of a sound mind, memory and understanding at the time of making the will.
3). Everybody of Age Can Make a Will
Every adult person may make will in English form. The moment a person is of age and has properties both real and personal to pass to a favored and preferred beneficiary, then he is qualified to write a Will. The age of adulthood is a matter of law provided in the Will Law applicable to the testator’s place of domicile. Section 3 of the Wills Act provides that:
“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…”.
This simply means that every person can make a will and bequeath all property whether real estate (landed property) or personal estate (chattels or goods) to anybody after certain condition precedents are met.
4). For the will to be valid in Nigeria, It must be signed by the maker in the presence of at least two witnesses. Signature for this purpose may be a cross, an initial, rubber stamp or a name or signature. A thumb print can also be accepted. Where an illiterate executes a Will, an attestation clause called illiterate jurat should be inserted asserting that the contents of the Will had first been read over to the illiterate Testator who appeared perfectly to understand and approve of same. Same applies to a blind person.
5) The signature of the Testator may be acknowledged. As alternative to signing his signature, the Testator can acknowledge his signature and the law allows it and regards it as valid provided that other conditions are met.
6)The position of the signature must be at the end of all the disposition such as to ensure that the Testator intends to give effect to the Will with his signature. It is to be noted that any disposition or directive coming after a signature will be null and void.
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7) The Will must be signed by the Testator or someone else in his presence and at his direction (or acknowledged by the Testator) in the presence of at least two witnesses present at the same time. In the presence of witnesses, means actual visual presence of two of the witnesses. It is a strict rule that must be complied with, else the Will will be voided. On no account should the witnesses attest to what they have not seen or witnessed. Therefore, they must see the Testator sign his signature or acknowledge his signature. The witnesses must see the signature before their own attestation.
8) A testator can make changes in his will while he is alive through a mini-will called codicil. Codicils is annexed to or supplemental to or related to a Will previously executed. Codicil is necessary to achieve some or all of the following:
- To correct the previous Will
- To take care of newly acquired properties
- To correct a clerical error in the previous will
- To replace or appoint new executors.
In conclusion, even though there is no rule that prescribes that ‘will’ must be prepared by a lawyer, It is our candid advice that anyone who intends to write a Will should consult a lawyer who is skillful in the act of writing of a Will so that the ‘will’ will conform with the requirements of validity and also ensure that the Will is deposited at the appropriate Probate Registry in the State because a probate is made after all the requirements of a valid will is satisfied.