Wills in Nigeria

Understanding Wills in Nigeria: Importance, Requirements, and Process.

Introduction

“Do you want me to die”? That was the first question he asked when I suggested drafting a will. This reaction highlighted a common misconception: many people view the word will as a death sentence.

However, preparing a will is not about anticipating death; it is a critical step in future planning.  lt ensures that one’s assets are distributed according to their wishes after their passing.  This article provides a comprehensive analysis of wills in Nigeria, including their significance, legal requirements and the preparation process.

What is a Will?

A will, also known legally known as a testament,  is a legal declaration outlining the distribution of one’s estate or properties after death.  According to the case of Okeke V Okeke [2000] 3 NWLR (Pt. 649) 506, a will specifies who inherits your assets, appoints an executor to manage your estate, and may include instructions for the guardianship of minor beneficiaries.

Why is a Will Important?

A will offers several critical benefits:

1. Control Over Asset Distribution: It allows you to decide who inherits your assets, ensuring your loved ones are provided for according to your wishes. (Dawodu v. Isikalu & Ors. (2011) LPELR (CA).
2. Avoiding intestacy: Without a will, assets are distributed according to legal rules, which may not align with your preferences.  This can create challenges in allocating properties.
3. Reducing Family Disputes: A clear will helps prevent conflicts among family members over inheritance, although disputes over validity and allocations can still arise.
4. Protecting Loved Ones: A will can ensure the well-being of your spouse, children, and other dependents.
5. Streamlining Probate: A well-drafted will makes the probate process more efficient, saving time and costs for the beneficiaries.

Requirements for a Valid Will in Nigeria

For a will to be legally valid in Nigeria, it must meet specific criteria, as outlined in  Jonah & Anor v. Akpadiaha & Ors (2021) LPELR-55102(CA):

• Testamentary Capacity: The person making the will (testator) must be of sound mind and have the mental capacity to understand the implications of their decisions. See Mabogunje V Adewunmi (2006) 11 NWLR Pt 991.
• Age of the Testator : Generally, the testator must be at least 18 years old, with exceptions for minors in specific situations, such as active military personnel.
• Written Format: The will must be in writing, although no specific format is required.
• Signature by Testator: The testator must sign the will, or it can be signed on their behalf in their presence and under their direction. Special circumstances may allow exceptions (Dan & Anor (2018) LPELR 44415 (CA).
• Witness Attestation: At least two competent individuals must witness the testator’s signature and also sign the will in the testator’s presence.
• Free from Undue Influence: The will must be made voluntarily, without coercion or pressure from others.

Types of Wills in Nigeria

There are several types of wills recognized in Nigeria:

1. Simple Will: Outlines the distribution of possessions and is suitable for simple estates and family situations.   Sometimes referred to as a “testamentary will.” People with very simple estates can benefit from this kind of will. An executor, beneficiaries, and the distribution of one’s assets can all be specified in a basic will.
2. Conditional Will: Specifies conditions that must be met before asset distribution, such as a beneficiary reaching a certain age.
3. Joint Will: A joint will is written by two people, usually couples, to merge their estates and ensure unified decisions on asset distribution. Joint wills can make the procedure easier for couples who have similar goals because they assure that the surviving partner inherits the full estate if the first person dies.
4. Mutual Will: Similar to a joint will but involves two or more people, but each participant drafts their own will. People who want to make sure that their estates are handled and distributed in a coordinated way, in accordance with predetermined terms, frequently utilise these wills.
5. Testamentary Trust Will: Establishes trusts within a will, to provide long-term financial support for specific beneficiaries, such as minor children.
6. Holographic Will: A handwritten will signed by the testator without witnesses. While recognized, these wills may face legal scrutiny due to their informal nature.
7. Customary Wills: These wills are recognized under customary laws in certain communities and may have different requirements. See Ayinike V. Ibiduni (1959)4 FSC 280
8. Islamic Wills: Comply with Islamic inheritance laws.

How to Create a Will in Nigeria

To create a legally sound will, follow these steps:

1. Assess your Assets and Beneficiaries: Make a detailed list of your assets and decide on your beneficiaries.
2. Choose an Executor: Select a trusted person to manage your estate and execute your wishes.
3. Identify Beneficiaries Clearly: Specify the individuals who will inherit your properties.
4. Designate Guardians: This is mostly applicable when the testator has minor beneficiaries. It will be important to designate a trusted guardian for them in the will before they come of age.
5. Seek Legal Advice: Consult with an estate planning lawyer to ensure compliance with legal requirements.
6. Draft the Will: Have your lawyer prepare the will according to your instructions.
7. Sign and Witness the Will: Sign the will in the presence of at least two witnesses, who will also sign the document. See Ize-ayanmu V Alonge (2007) 6 NWLR Pt 1028. It is very important to get trustworthy witnesses to also sign the will.
8. Store the Will Safely: Keep the original will in a secure location, such as a safe deposit box or with your lawyer.

Can Women inherit Properties via Wills in Nigeria?

Historically, some traditions in Nigeria, restricted women’s rights to own or inherit property.  However, legal precedents such as  Mojekwu V Mojekwu [1997] LPELR-13777(CA), Uke V Iro (2001),11 NWLR (PT. 723)196, Ukeje V Ukeje (2014) LPELR-22724(SC) affirm that women can now acquire and inherit properties through wills. 

Amending or Revoking a Will

You can amend or revoke your will at any time:

• Amendments: Create a “codicil”, which is a supplementary document that modifies the existing will see Osemwingie & Ors LPELR-19790(CA).
• Revocation: Destroy the will, write a new one, or issue a clear statement of revocation.

Probate Process

After the testator’s death, the will undergoes probate – a legal process that validates the will and grants the executor authority to administer the estate to beneficiaries according to the testator’s wishes.

Conclusion

Drafting a will is an essential step in securing your legacy and protecting your loved ones.  By understanding the legal requirements and preparation process, you can create a valid will that accurately reflects your wishes.   Always seek professional legal advice to ensure your will’s validity and effectiveness.

Get a Will drafted Today – Consult a Lawyer for Further Advise!

By Gontul Kenubeh Timothy, Esq.