THE IMPORTANCE OF WRITING A WILL

THE IMPORTANCE OF WRITING A WILL

WHAT IS A WILL?

Black’s Law Dictionary (6^th Edition) defines a Will as,

“An instrument by which a person makes a disposition of his real and personal property, to take effect after his death, and which by its own nature is ambulatory and revocable during his lifetime.”

In a similar vein, Animashaun & Oyeneyin, in their book titled “Law of Succession, Wills and Probate in Nigeria”, define a Will as,

“...a document by which a person makes disposition of his property, real or personal, to take effect after his death. A person who makes a will is called a testator (if male) or a testatrix (if female).”

In other words, a Will is a legal document in which the maker (testator) states how he wants his property to be distributed among his named beneficiaries after his death. When a person dies without writing his Will, the person is said to die intestate, while a person who dies leaving a Will behind is said to die testate.  This means, where a person dies without writing a will, his estate will be divided according to statute rather than your wishes.

RULES OF INTESTACY

1.     Partners to whom you are not married get absolutely nothing even if they were co-habiting with you at the time of death.

2.    If you are married, the amount going to your spouse will be restricted with the possibility that strangers would benefit.

3.    Part of your estate could go to your parents, if they are still alive.

4.    If you die with no relatives, all your estate would go to the government.

Let us at this juncture, let us take a look at the teachings of Paul, an apostle of Jesus Christ, in his letter to the Hebrews in chapter 9 verses 16 and 17, there it says-

“16.  For where a testament is, there must also be the death of the testator.

 17.  For a testament is of force after men are dead: otherwise it is of no strength at all while the testator liveth.”

Now, this hinges in the fact that a will comes to live as soon as its makes dies.

A Will should equally appoint some persons called executors or trustees who are the ones that will ensure that the wishes expressed in a Will are carried out, though an application can be made to a court to appoint administrators to administer a Will that fails to appoint its executors.

REQUIREMENTS OF A VALID WILL

Meanwhile, for a Will to be valid, it must comply with certain requirements. These requirements are spelt out under section 6 of the Wills Law of Oyo State and they are as follows:

·                     A Will must be in writing;

·                     It must be signed by a testator or signed in his name by another person in his presence and by his instruction;

·                     A testator’s signature must be appended in the presence of at least two witnesses or be acknowledged in their presence;

·                     The witnesses must append their own signatures in the presence of a testator.

The major features of a formal will are as follows

1.     It is testamentary, that is, it speaks after the death of the testator.

2.    It is ambulatory, which means, it should be capable of being changed and revoked during the lifetime of the testator.

3.    It is voluntary, that is, it must be independently and freely made without pressure, undue influence or duress from other persons.

4.    It must be made, signed and witnessed according to law.

5.    It must identify the property and names of beneficiaries of the gifts in a will.

It should be noted that a Will must be witnessed by a minimum of two persons for it to be valid. It must also be signed by its maker in the presence of such witnesses. A witness should not be given any gift under a Will that he witnesses. It is also advisable to use younger and healthier persons as witnesses because in case of any court action over that Will, such younger persons would be alive to give evidence in court.

Similarly, executors named in a Will should be younger and healthier persons who are likely to outlive the maker of a Will.

In writing a Will, it is advisable to use a lawyer, though the fact that a person who is not a lawyer writes his Will personally does not in itself render the Will invalid.

It should also be stressed that a Will is a testamentary and ambulatory document which means that a Will does not have any effect in the lifetime of its maker. It may be reviewed or changed as many times as it pleases its maker or even be totally cancelled after it has been made. This is called a codicil. It is an instruction that is added later to a will, usually to change a part of it. It is known as a mini and supplementary will by which a testator adds to, alters or revoke what is contained in a will. It may affirm the contents of a Will, alter or amend the will, correct provisions of the will, revoke a will, revive or publish a will.

Beneficiaries under a Will can only take and enjoy their gifts upon the death of a testator. The fact that a person writes his Will does not mean that he is no longer the owner of his property.

After a Will has been properly written, it is important to keep such Will in a very secure place and for this reason, a Will may be kept in any or a combination of the following places:

1.            Bank.

2.            A lawyer’s care.

3.            Probate Registry.

Some places in the past have been described as safe places, but, not completely safe. These places includes – a safe in the house, religious centres like churches and mosques.

CAPACITY - who can write a Will?

As a matter of fact and law, everybody that I am looking at here today can competently write their Wills. However, the law states that the following persons cannot write a Will:

1.            A minor, that is a person below 18 years of age, except a mariner or sailor who can even write an oral Will;

2.            An insane person.

The mental health of a testator cannot also be over-emphasized as it is possible to invalidate a Will on the basis that a testator lacks mental capacity to write his Will when he does write it. A Will is, by law, expected to express voluntary wishes of its maker. Therefore, a Will is bound to be set aside once it is proved that the maker is mentally unstable as at the time of writing his Will or that he writes his Will as a result of undue influence or duress.

This issue arose in the case of Adebajo v. Adebajo (1973) NSCC 8 where a widow challenged the validity of her late husband’s Will in court on the ground that the testator was  not of sound mind, memory and understanding as at the time he signed his last Will and Testament. The matter started from the High Court and ended in the Supreme Court. Even though the Court eventually declined to invalidate the Will, a lot of time and money were wasted over the case.

It is in this light advisable that a testator carefully selects his witnesses. Having a medical doctor and a lawyer to witness a Will is, to say the least, the beginning of wisdom so that in case of any challenge in court of the testator’s mental capacity, a medical doctor can testify as to the mental condition of such testator as at the time he signs his Will.

It should also be noted that the witnesses must not be beneficiaries of the will. A witness, who benefits under a will, loses any property or benefit taken. A benefiting witness is only disqualified from benefitting, but not disqualified from testifying.

WHY SHOULD YOU MAKE A WILL?

Some people erroneously believe that the idea of writing a Will is only applicable to the sick or the elderly who are expecting to die soon. Some other people believe that once a person writes his Will, death is coming soon. This is not true because even failure to write one’s Will does not guarantee longevity of life. It should be stressed that reasons for writing a Will far outweigh any misconceptions that people entertain. It is therefore important to write a Will for the following reasons:

·         To ensure that your property get to your desired beneficiaries.

·         To ensure peace after your demise.

·         To ensure that you appoint your executors.

·         To give yourself an opportunity to express your last wishes.

·         To save your loved ones the trouble of applying for letters of administration.

·         To avoid problem of intestacy.

WHAT YOU CAN GIVE THROUGH YOUR WILL

Some people think they do not have any business with the writing of a Will because they are not rich. As a matter of fact, a person does not have to be as rich as Aliko Dangote or Mike Adenuga to qualify for writing his Will. Any person with some tangible assets can write a Will so as to prevent family members from fighting over whatever that is left behind. A list of what a person can give through his Will is inexhaustive but some of the assets that can be transferred through a Will are as follows:

·         Landed property i.e. house, farmland or undeveloped land.

·         Furniture

·         Clothes

·         Books –secular and religious

·         Domestic utensils

·         Jewelries

·         Insurance benefits

·         Pension entitlements

·         Balance in bank accounts

·         Shares in companies

·         Personal treasures e.g. musical instruments

·         Vehicles

·         Benefits in partnership business

·         Electronics

·         Royalties

·         Your body organs, etc.

PURPOSES OF A WILL

Many people ignorantly think that a Will can only be used to share property. As a matter of fact, a Will can be used to do a number of things and some of them are as follows:

·         To give funeral directions e.g. “I direct my Executors and Trustees to ensure that I am buried, after opportunity has been given to as many people as possible to view my corpse lying in state, in my house at Osi Road Benin, Edo State. My tomb should be located next to my mother’s tomb in the compound”.

·         To give special protection e.g. “Maintenance of Mrs. Chukwuma: She shall be given #60,000 a month. The amounts may be reviewed by my Trustees from time to time having regard to the cost of living in Nigeria and funds available in the Chukwuma Trust Account”.

·         Maintenance of a trust account

·         Protection of business interests

·         Provision of education to your children

·         Protection of a spouse’s interests

·         Financial assistance to others

·         Charity & Scholarship

·         Special care for a physically challenged dependant

·         Provision of financial security

·         Maintenance of peace

·         Setting up annual lecture in your memory or annual religious programme

·         Setting up a foundation e.g. Nobel Laurel.

PARTING WORDS

As I leave the podium this afternoon, I would love to depart with the memorable words of a retired Justice of the Supreme Court of Nigeria, Niki Tobi, in his book titled, Cases and  Materials on Nigerian Land Law. He said and I quote him as follows:

“With the sophistication in society and the practice of modernity, a number of persons nowadays make wills before they die. If this is done, and the will is validly made in law, then the property of the deceased will be distributed according to his testamentary wishes as contained in the will. In this latter case, the deceased is said to have died testate and there is therefore really no room for any speculation as to how the property should be distributed. The testator has said it all in his will which must be followed to the letter, since persons alive cannot rewrite the will of a testator”.