Essentials of a Valid Will
1. Capacity. The first essential requirement of a valid will is that the testator must have full capacity to make a valid will. The following persons therefore, have no capacity to make a valid Will:
(a) Infants (persons below the age of 18 years in Nigeria). Infants do not have capacity to write a valid Will unless they are on military service in danger situations, or seamen or airmen in full service.
(b) Insane persons; but such persons can make valid Wills during their lucid intervals, i.e. periods when they are sane.
(c) Drunken persons, unless it can be shown that they knew what they were doing despite their state of intoxication.
(d) Corporate bodies, e.g. companies cannot make Wills because of the absence of a mind.
2. Free Will. Wills are supposed to be voluntary provisions for people or for noble causes out of the property of the testator. If the testator is shown to have been coerced or unduly influenced by anybody, that person cannot benefit from any bequests made to him or her. It must be noted that begging a testator for provision in his Will without more, does not amount to undue influence.
In Singh vs. Amirchand, it was shown that the testator was of infirm mind which his doctor capitalized on and unduly influenced him to provide for him (the doctor) in his Will. The Will was set aside. The following Nigerian cases are on the same very important point. See also the cases of Johnson vs. Maja (1951); Okelola vs. Boyle (1998), which are on the same point.
3. Sound Disposing Mind. The testator must possess corpus mentis. If he is shown to be generally of infirm mind when the bequests were made (i.e. when the Will was written), the Will loses its validity and will be set aside at the instance of any person having a valid, i.e. sufficient interest in the property of the testator. So held the court in the landmark case of Banks v. Goodfellows.
Pretermitted Heir
A pretermitted heir is a term used in the law of property to describe a person who would likely stand to inherit under a will, except that the testator (the person who wrote the will) did not know, or did not know of, the party at the time the Will was written.
The most common category of pretermitted heir is the pretermitted child, born after the execution of the will, or the pretermitted spouse, whom the testator does not marry until after the execution of the Will. Many jurisdictions provide that a pretermitted spouse will receive either her intestate share (what she would have received had the testator died with no Will), or the elective share (a set amount or formula provided by law for spouses who are disinherited in the Will).
A pretermitted child or spouse may be explicitly disinherited in the Will, or may be excluded from taking under the Will if he/she received an advancement on his/her inheritance in anticipation of the marriage. A pretermitted spouse may also disclaim any interest in the testator's estate through an antenuptial or prenuptial agreement.
Custody of Will
After the Will is executed (i.e. written and signed), copies should be sealed and distributed preferably to the following:
(a) High Court Probate Division
(b) The legal practitioner who drafted and supervised the execution
(c) The testator’s bankers
(d) A locked safe at home.
A note of warning: it is important that relatives and children do not know the contents of the Will until the demise of the testator. This is because:
(a) Those not provided for can destroy the estate if they can.
(b) Those who are substantially provided for in the Will can become dangerous to the testator himself. They may want their share faster than waiting for the testator’s natural death.
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