The Advantages of Writing A Will

There are many prejudices regarding the writing of Wills. Many people, especially in the developing countries such as Nigeria, believe that writing wills is tempting fate, a way of reminding the angel of death that the testator is still alive.

Such an action would amount to challenging the angel of death or inviting him. Others see writing of wills as remembrance of death, a reality which many people will rather not want to discuss.  

However, there are many advantages of writing a Will, among which are the following:

1. Exclusion of Rules of Customary Inheritance. Under the original English law, a Will excludes the rules of inheritance under native law and custom. If a Will exists, the brother of a deceased male cannot just take over the assets (and usually the children and even wife of the deceased) as his properties. But note should be taken of the following qualifications.
(a) Many State Wills Laws have brought certain aspects of customary law back by providing that no testator can bequeath any property which he cannot otherwise bequeath under the applicable customary law. 

 For example, the Plateau State Wills Law, applicable in Plateau and Nasarawa States provides likewise.  So, if a testator cannot by custom bequeath his main house to anyone else except his eldest son, then the law protects this customary law provision.  See Idehen v. Idehen and Lawal Osula v. Lawal Osula supra.

(b)  As stated above, most States Wills Laws provide that if the testator could be shown to have died a Muslim, the dispositions he makes in his Will beyond the Islamic legal maximum will become null and void.  This is obviously to avoid the effects of the Supreme Court decision in Yunusa v. Adesubokun. 

2. Exclusion of Statutory Rules of Inheritance. It overrides statutory rules of inheritance.  Anyone covered by S. 39(1) of the Marriage Act comes under the umbrella of received English law on intestacy or similar statutory law in operation in Nigeria. The presence of a Will can alter this provision substantially.

3. The testator can choose people who he wants to act as his personal representatives. To this end, he can choose his next-of-kin who may be his best friend who he knows to be upright. 

4. A grant of Administration (when a person dies intestate) is unnecessary. The Grant involves the additional expenses of a bond and sureties and these can be avoided when the High Court grants a Probate to an executor under a Will.  The expenses to secure a grant are higher than those paid for probate registration, which is now around 3% of the value of the estate.

5. Upon the death of the last Administrator of an intestate person, a fresh grant has to be taken out, whereas by the doctrine of transmission, the executors of the last surviving executor of a will could complete the winding up of the estate of the testator.

6. The testator has the power under the Wills Law to appoint guardians for his infant children and he can in similar manner give direction as to the disposal of his remains, e.g. by cremation or to be buried in his academic or legal practice wig and gown.