Wills and Formalities

Wills are written testaments (or directions) on how a person’s property will be treated after his death.

It is simply defined as "a testamentary document voluntarily made and executed according to law". 

The standard definition in High Court Laws in some States is “a formal declaration made by a person known as the testator given directive or instructions to others regarding the disposal or the distribution of his properties after his death”. 

Today, many States in Nigeria have made their own Wills Laws, all modeled after the Will Act, 1837 with little local flavour to accommodate local customs.

The testator (the person who makes a will) must have a sound disposing mind at the time he makes the will, otherwise the will be declared void. This means that the testator must not be suffering from insanity, mental derangement, or senility when making the Will. 

When a person  dies without writing a will, he is said to have died “intestate” and the provisions of the customary law to which he was subject during his life time (called the personal law) is the applicable law to govern the distribution of his assets (and liabilities).  

Personal law means the customary law of his tribe or ethnic group and not necessarily the law applicable in his normal place of domicile. In most communities the property devolves on the children with the eldest male child in control.  The eldest male child is then in a position analogous to a private trustee. 

Certain formalities must be followed in the process of executing (writing and signing) a will. If the correct formalities are not followed, then the resultant effort is not a valid will. 

Formalities include the requirements that a valid Will:

i. Be in writing.  Writing in pencil is not a valid satisfaction of this requirement.

ii. Must be signed by the testator at the foot or end but when the testator cannot sign, e.g. due to illness, he can direct another person to do so for him in his presence.

iii. Must be witnessed by two adults of full capacity present at the same time.  

iv. Must contain a Charging Clause to enable the executors who draw payments for their services. Executors always ensure that the clause is not omitted from the Will.

In the absence of the   clause, the executors cannot remunerate themselves, and their services will become pro bono (free of charge).

A Will must not be witnessed by –
(a) Spouses or relatives who are beneficiaries, otherwise they lose their bequests.

Blind persons cannot witness a Will but can write their own Wills. See Institful v. Christian. 

(b) Persons who lack capacity, e.g. on account of age, infirmity of mind or drunkenness cannot be witnesses to Wills.