Procedure for Writing a Valid Will in Nigeria

A Will is generally the last wishes or instructions of a deceased person in writing. Where a person dies having a Will, he is called a testator and where there is no Will, he is said to have died intestate. A will allows for the distribution of the estate and properties of a testator in accordance with his wishes. On the other hand, not making a Will makes it easy for certain individuals to unlawfully interfere with the assets in a testator’s estate. One of the real issues that lead to a dispute over the estate of the deceased person is whether such a person made a Will and if so whether the Will was valid.

In Nigeria, a valid Will must have the binding force of law and therefore must meet the stipulated requirements of the law.

The WILLS ACT 1837 defines a valid Will; “a Will is a testamentary document voluntarily made and executed to law by a testator of sound mind, where he disposes his properties (real or personal) to beneficiaries to take effect after his death”.

There are various legislations guiding the making of Wills in Nigeria:

1. Wills Act of 1837;

2. Wills Law of various states;

3. Administration of Estate Laws of the various states;

4. High Court (Civil Procedure) Rules of various states; and

5. Evidence Act.

The procedure and requirements for making a valid Will include:

  1. Writing: all legal documents must be in writing to have the binding force of law. Thus, a valid Will must be in writing.
  • Voluntary: a valid will must be made by voluntarily by the testator. Thus, the writing of the will by the testator must be made in the absence of any expression of fraud, duress and/or undue influence.
  • Legal age: a testator must be an adult of a legal age of 18 years and above to make a valid Will. Under the Will Act, a testator must have attained the age of 21 years while Wills law of various states require a legal age of 18 years.
  • Mental capacity: The testator must be of sound disposing mind to make a valid Will. He must have requisite memory and understanding.There must be no infirmity or lunacy of any sort, no matter how slight and the testator must not have been unduly influenced to dispose of his property as he did in the Will.
  • Execution: a valid Will must be duly signed by the testator or any person of his choice on his behalf but who must sign in his presence and by his directions.
  • Attestation: a minimum of two witnesses must sign in acknowledgment of the testator’s signature in his presence and at the same time.
  • Lodgment at Court Registry: a valid Will must be taken and lodged at the probate registry of a state high court before or upon the demise of the Testator.
  • Witness must not be a beneficiary: a witness must not be a beneficiary to a valid Will. Any gift given to a witness will be null and void. The exception is only for a spouse, such a spouse can still benefit from the Will. It is generally not advisable for a testator’s spouse or children to attest or sign to a Will to avoid conflict of interest and ensure confidentiality.
  • Executors: a valid will must have named executors of the testator’s estate. They must be up to the legal age of 18 years and above. Executors can be part of beneficiaries in a Will. A minimum of two executors are required.

It should be noted that the making of Wills under customary laws and the Islamic law have their own systems, which are different from the statutory provisions.

A Will only takes effect after the death of the testator, thus, in making a Will it is important that proper legal advice should be sought and obtained. This way, the intentions of the testator as to how his assets may be distributed is strictly adhered to and not invalidated for being inconsistent with the law.

Where a person who feels entitled to the estate of a deceased person suspects or anticipates that no provision whatsoever was made for them under a Will, the only recourse is to challenge the Will.

Proving the validity of a Will

In proving the validity of Will, there is presumption of regularity of a Will that appears on its face to be ex-facie regular. Thus, the primary burden of proving the validity or proper execution of a Will lies on the person who propounds it or seeks to rely on it. After the burden is discharged, it shifts to the other party challenging the Will.

By Adeola Oyinlade & Co

Note: The content of this article is anticipated to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Adeola Oyinlade & Co provides help and offers advisory to clients on how to write a valid will in Nigeria.

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