Often times when people are advised to make a will, there seems to be a psychological thought that the solicitor has a death wish for them. But, the undisputed fact is that, man has to live just as he has to die and when he dies, his spouse(s), child(ren) and other members of the family succeed him. In order to independently choose how his estate will be disposed after his death and cater for the welfare of his young children and his wives; not only does a man need to make a will but also, making a valid will, becomes unavoidably imperative. Will is a document by which a person (called the testator) appoints executors to administer his estate after his death, and directs the manner it is to be distributed to the beneficiaries he specifies. In other words, Will is a testamentary document that contains the intention or wishes of a person on the distribution of his property which is to be carried out after his death. The testator must have animus testicandi , the intention to make a valid testament at the time of making the Will.
Writing Will: Legal Requirements
One may confuse writing Will for written Will if outmost diligence is not exercised. This therefore necessitates the relevance of the difference between the two in order to exhibit and establish their legal requirements. Writing Will, in the context of this writeup, implies the solicitation or advice of representing the manner in which one wants one’s property to be distributed after one’s death in a document. While written Will refers to the actual documentation of the way in which one wishes one’s property distributed after one’s death.
Although, there is no legal compulsion on a sane and capable adult to write Will during his lifetime, it is legally mandated that anyone who has decided to write Will must comply with the provisions of Wills Law for the proper disposition of his property upon his demise.
Besides the above, Will may either be written or oral. The former is most pronounced under statutory law while the latter is a popular customary practice. A written will is usually contained in a document and signed by the testator and at least two capable witnesses who are not beneficiaries. While an oral will, (which is also known as Nuncupative will or in Igbo called Ike Ikpe) is a will communicated verbally to witnesses rather than in writing, usually when the person is near death. The difference between these two forms of Will is necessary because one of the requirements of a valid statutory Will which must be complied with is that, it must be in written form. This is evident in the fact that, all states laws relating to Wills stipulate that a will must be in written form.
In the case of Apatira v Akanke, the testator who was born and died as a Muslim left a supposed statutory will which did not comply with the Wills Act. It was argued that in spite of the statutory deficiencies in the Will, it should be treated as a will under Islamic law which does not require any writing or attestation. It was held by the court that the testator intended to make a will in accordance with Wills Act but failed to comply with the statutory requirements. Evidence of such intention was found in the fact that the testator’s disposition of his property was contrary to the rules of Islamic Law Will. On this authority, it is clear that, mere writing of a will is not a conclusive evidence that such a will is valid statutorily because it may not comply with other statutory requirements. Such defective wills are at best accepted under customary law.
Effects on Minorities and Women
In this context, a minority refers to the state of being an infant (a young child of the deceased, who has not attained the age 18 years). A man who dies intestate or testate but with a defective will because it is fundamentally against the rules of a statutory will has subjected his young children and wife to a lot of intestate disputes which are usually lengthy and acrimonious. Absence of a valid testamentary document evidencing the manner in which the deceased wants his property to be disposed often has a lot of negative effects on the deceased’s successors. These successors are usually helpless minors (children) and women (wives). These effects will form the substantial part of the foregoing paragraphs.
1. Writing Will Abrogates the Rules of inheritance under different Customary Laws: Most times, the deceased may be subject to different forms of native laws during his lifetime which may have different unfavourable provisions for his infants and wives but making Will under statutory law often shows the real intentions of the testator__ how he wishes his property to be distributed after his death__ instead of putting this before a court that will then evaluate and determine the custom that will be applicable to the distribution of his property contrary to the deceased’s interest and most times, unfavorable to his wife and children.
In Olowu v Olowu, the deceased a Yoruba man of Ijesha origin spent most of his life in Benin City, married Bini women who beget for him all his children. He applied to the Oba of Benin in 1942 and was culturalized as a Bini citizen. He acquired landed properties in Benin City and else where. He died intestate in 1960. Letters of administration having been obtained, the first defendant distributed the estate according to Benin Customary law. The plaintiffs brought an action for a declaration contending that the applicable law was Ijesha customary law. The Supreme Court held: that the deceased having changed his customary law, that is, his personal law from Ijesha custom to Bini customary law through the process of culturalisation, Bini Customary law was the applicable law for the distribution of the estate.
2. Will Writing usually Excludes the Rules of Customary Inheritance: There are in some customs, the rules that a woman whether as a female child or as a wife does not and cannot inherit. The writing of a valid statutory Will will nullify this inequitable and barbaric distribution of the deceased’s property and clearly makes adequate provisions for the deceased’s wives and their children who often times may be minors. If such customary practices on the distribution of property are to be applied, the deceased’s children (usually females) may not have any right to inherit their father’s property.
In Nzekwu v Nzekwu, the custom which permitted that the head of a deceased husband’s family could singlehandedly alienate the deceased’s property, while his wife was alive was held: uncivilized and repugnant to natural justice, equity and good conscience. In Mojekwu vs Mojekwu, a rule of customary law which precludes daughters from inheriting in their fathers’ property was held repugnant to natural justice, equity and good conscience and also incompatible with the provisions of the Constitution of Federal Republic of Nigeria. Niki Tobi, JCA (as he then was) in his characteristic style while commenting on the patriarchal nature of Igbo custom on inheritance said “… for a custom or customary law to discriminate against a particular sex is to say the least an affront on the Almighty God Himself. Let nobody do such a thing. On my part, I have no difficulty in Golding that the custom is repugnant to natural justice, equity and good conscience.”
3. Deceased won’t have the control over who will administer and be beneficiaries of his property: Another effect of not writing Will is that, after the deceased must have passed away, he may no longer have a say on the administration of his estate. Since he never chose his trustee or administrator during his lifetime, he may also not be the one to decide the beneficiaries of his property. For this reason, the owner of property may subject his young children (offspring) and wives to a lot of matrimonial attack from the extended family members. If a wrong person becomes one’s trustee, definitely, there will be a lot of wrong beneficiaries.
In Tapa v Kuka, the deceased was a Muslim, and a Nupe from Bida, Niger State. The plaintiffs were the cousin and sister respectively, of the deceased. They applied for the grant of letter of administration of the deceased’s property in Lagos. The defendant widow entered a caveat. The court held that the law to be applied was the personal law of the deceased which was Muslim Law. The decision is in deceased’s sister’s favour not his wife.
4. Will Writing provides financial security for the deceased’s loved ones: The provison of section 3(1) Wills Act 1837 applicable to former Western Region of Nigeria (Delta, Edo, Ondo, Osun, Oyo and Ekiti States) provides that: “It shall be lawful for every person to devise, bequeath or dispose of, by will, executed in matter hereinafter required, all real estate and all personal estate which he shall be entitled to either at law or in equity at the time of his death.”
This provision invests on the testator the discretion to make adequate financial provisions for his wives and children as he deems fit without any encumbrance. However, there is a modified version of the same law in the provision of section 3(1) of Western Nigeria Wills Law which subjects this particular provision to “any customary law relating thereto”.
Nigerian Law Reform Commission in its 1987 Report on the review of Pre 1900 English Statutes recommend the provision of Section 2(1) of model Wills Law which states that:
“Notwithstanding the provision of section 1 of this Edict, where a person died and is survived by any of the following persons
(a) The wife or husband of the deceased;
(b) A child of the deceased;
(c) A parent, brother or sister of the deceased who immediately before the death of the deceased was maintained either whollynor partly by the deceased; that person may apply to the court for an order on the ground that disposition of the deceased’s estate affected by his will is not such as to make reasonable financial provisions for the applicant.”
The above implies that if a deceased fails negligently or forgetfully to cater for his young children and wife they can still apply to court for financial provisions if the will is written under relevant State statutory Law.
5. Writing Will avoids the unintended consequences of intestacy: Rigid rules such as in lex situs, idi-ogbe, idi-igi, ori-ojori, administration of estate law under common law or statutory law when the couples contract marriage under the Act, et cetera, may not be favourable to the deceased’s wives and the infants the deceased leaves behind. So to avoid making one’s lovely family members suffer after one’s death, there is a need to make adequate provisions for them in a written Will.
6. Customary Pressure Faced by Widow in the Family: In some culture, when a man dies the belief is that it is the woman, his wife, who kills him so she could inherit his property. For this reason, they subject the woman and her children to a lot of inhumane treatment and devoid them of having a share in any part of their breadwinner’s property which would have, had the the deceased’s husband made Will, been avoided. In some cases, the extended family members send the woman and her children away from her husband’s house. Thus, the deceased’s children may not have any proper upbringing, the infant male child may later become a notarious criminal while the female child may turn to a woman of easy virtue and his wife becomes hopeless and homeless. This would not have occurred if there had been a proper provision for them in a written will.
The only way to make sure one’s family benefits from one’s property as a man is by making a valid will. As a man living in the 21st century whose life expectancy is not more than 70 __ he is expected to make adequate provisions for his wife and children so they won’t suffer the brunts of his lackadaisical attitude towards capacity to make Will after his departure. Even though there are certain provisions in the Wills Law which subject the disposition of testator’s Will to customary law, this in the writer’s considered opinion, is not a reason for a man to die intestate as the exception itself is not a qualification of the testator’s capacity to make a will but a protection of his family members in the case where a mean testator decides not to make any provision for his young children and wife in his will. Also, the qualification is a protection of the sacrosanctity of customary or religious practice the testator was subject to during his lifetime.