- SOURCES OF WILLS LAW IN NIGERIA
- THE NATURE AND CHARACTER OF A WILL
- TYPES OF WILL
- CAPACITY FOR MAKING WILLS
- WHO CAN MAKE A WILL
- STATUTORY REQUIREMENTS OF A WILL
- CANCELLATION AND REVOCATION OF WILLS
- STATUTORY MODIFICATIONS TO WILLS MAKING
Sources of Wills Law in Nigeria
The law of wills in Nigeria is derived from various sources, which include:
1.Statutory Law: The principal statute governing wills in Nigeria is the Wills Act of 1837, which is applicable in most states. Some states have their own Wills Laws, such as the Wills Law of Lagos State 1958.
2.Customary Law: Customary law plays a significant role, especially in the context of intestacy and the distribution of property among indigenous communities. Customary laws vary significantly across different ethnic groups.
3.Case Law: Judicial decisions from Nigerian courts provide interpretations and applications of statutory provisions and principles of common law related to wills. See the case of Aoko v. Fagbemi (1961) and Idehen v. Idehen (1991) 6 NWLR (Pt. 198) 382.
4.Common Law and Equity: Nigerian wills law also draws from English common law and principles of equity, given Nigeria’s colonial history and the reception of English law.
The Nature and Character of a Will
A will is a legal document by which a person, known as the testator, expresses their wishes as to how their property is to be distributed at death, and names one or more persons, known as executors, to manage the estate until its final distribution.
Characteristics of a will
1.Ambulatory: this is where a will does not take effect until the death of the testator.
2.Revocable: this is where a will can be revoked or altered by the testator at any time before death.
3.Testamentary Intent: This is where the testator must have the intention that the document will serve as their will.
4.Formal Requirements: this provides that a will must comply with certain legal formalities to be valid.
Types of Wills
1.Formal Will: This is the most common type of will, executed according to statutory requirements, usually in writing, signed by the testator and witnessed by two or more witnesses.
2.Holographic Will: this is a will entirely handwritten and signed by the testator. Its validity varies by jurisdiction; it is recognized in some Nigerian states under customary law.
3.Nuncupative Will: this is an oral will, often made by a person in imminent peril of death. It is generally limited to personal property and is subject to strict requirements.
4.Joint and Mutual Wills: Joint wills are made by two or more persons in a single document, usually a couple, to dispose of their property while mutual wills are separate wills with reciprocal provisions.
5.Living Will: Although not a will in the traditional sense, it is a document in which a person specifies their wishes regarding medical treatment in situations where they are no longer able to express informed consent.
Capacity for Making Wills
For a will to be valid, the testator must have the legal capacity to make a will. This includes:
1.Age: This is where the testator must be of legal age, which is 18 years in Nigeria, as stipulated by the Wills Act of 1837.
2.Sound Mind: This is where the testator must have testamentary capacity, meaning they understand the nature of the act of making a will, the extent of their property, and the claims of those who might expect to benefit. See the case of Banks v. Goodfellow (1870) LR 5 QB 549.
Who Can Make a Will
1.Adults: this makes any adult of sound mind can make a will.
2.Military Personnel and Mariners: Special provisions exist for military personnel and mariners, allowing them to make privileged wills under less stringent requirements.
Statutory Requirements of a Will
The statutory requirements for a valid will under Nigerian law generally include:
1.Writing: This is where the will must be in writing.
2.Signature: This is where the will must be signed by the testator.
3.Witnesses: This is where the testator's signature must be witnessed by at least two individuals present at the same time. See the Wills Act of 1837 under section 9.
Cancellation and Revocation of Wills
Cancellation of wills refers to the act of revoking a will or part of a will by physically marking it, such as crossing out or tearing. A will can therefore be revoked by:
1.A Subsequent Will or Codicil: This is where the testator may execute a new will or a codicil that expressly revokes the previous will.
2.Destruction: This is where the testator can revoke the will by intentionally destroying it.
3.Marriage: In many jurisdictions, including Nigeria, a will is automatically revoked by the subsequent marriage of the testator, unless the will was made in contemplation of that marriage.
Statutory Modifications to Wills Making
Statutory modifications in Nigeria include provisions that address issues like the testator's capacity, formal requirements, and the protection of family members who might be inadequately provided for. For instance:
1.Wills Law of Lagos State 1958 which includes specific provisions for the protection of family members.
2.Administration of Estate Laws which address the distribution of estates and may override certain testamentary dispositions to ensure fair distribution among beneficiaries.
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