WILLS AND TESTAMENTARY DISPOSITIONS

A GENERAL OVERVIEW

PAPER DELIVERED ON 6TH NOVEMBER 2006 TO

THE ROTARY CLUB OF IKEJA

AT

AIRPORT HOTEL, IKEJA

BY

CHIEF BOLAJI AYORINDE (SAN)

PAPER DELIVERED ON 6TH NOVEMBER, 2006

TITLE: WILLS AND TESTAMENTARY POSITIONS

1] 2] PROTOCOL It is a great privilege to be called upon to address eminent people of your status and calibre in the society. Indeed, life has no pleasure nobler than that of friendship and associating for a common and the good purpose of uplifting your immediate society. That is why you join yourselves here so frequently. Seeing you so happy amongst yourselves is a pleasant experience and a lesson to all of us who have the privilege to mix with you once in a while. I thank the District Governor for allowing me to choose my topic. I have chosen therefore to speak about Wills and why they are necessary. 3] One of the great secrets of serenity and happiness which people who are getting on in years have over and above others is the knowledge that come what may, they have tidied up their affairs. That is why the happiness that very young people chase about calmly resides naturally in wiser senior citizens. I say wiser senior citizens because there are indeed senior citizens abound who have no idea of how their affairs should be structured. On the other hand, there are even younger persons who can say with all confidence that even if they were to be excused from this side of the divide, they have made adequate arrangements to support their loved ones and causes that are very important to them. And anyway, age is very relative and I have heard it said before that forty is the old age of the youth while fifty is the youth of old age.

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WHAT IS A WILL? A Will is a testamentary and revocable document voluntarily made, executed and witnessed according to law by a testator with sound disposing mind. In a Will, which is in the form of a document, the maker of the Will disposes of his property subject to any limitation imposed by law and in it, he gives such other directives as he may deem fit to his personal representatives otherwise known as his executors who administer his estate in accordance with the wishes manifested in the Will.

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HOW TO MAKE A WILL? The form and execution of a Will is strictly regulated by law. For a Will to be validly made, a Will must have the following attributes: a) The Will must be signed at the front or end by the testator or by some other person in his presence and by his direction; b) The signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and, c) Such witnesses must attest and subscribe to the Will in the presence of the testator, but no particular form of attestation is necessary.

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The main body of a Will consist of gifts made by the testator or the maker to several persons or institutions. There are usually two classes of gifts. These are called Legacies and Devices.

LEGACIES These are gifts of personal property such as money, chattel, and chooses in-action. There are many types of legacies. A legacy can take several forms. It can be specific, general, demonstrative, pecuniary or residuary. (a) SPECIFIC LEGACY: Is a gift of an identified personal property of the testator which is distinguished from all his other property. The essential elements of a specific legacy are: i. ii. iii. It must be specific It must be distinct, separate and distinguishable from other property It has to be properly described to be able to ascertain it from others of its type. Without a proper description, identification may be difficult. For example; I give my walking stick which I purchased in Nairobi Kenya in 1980 to my son Kayode. (b) GENERAL LEGACY: This is a gift of an unidentified and undistinguished personal property, for instance: "I give to Emeka a Peugeot 505 car". Testator does not have to own a Peugeot car at the time of making the Will and the executors must provide fund from the estate for the gift. A general legacy may fail for uncertainty if its value cannot be ascertained at the death of the testators - Re O Connor (1948) 2 All ER 270 (c) DEMONSTRATIVE LEGACY: This is a legacy in the form of a general legacy but directed to be satisfied from a specified fund or pool of property. Lord Thurlow in the English case of ASHBURNER V MACGUIRE described a demonstrative legacy as being;

"In its nature a general legacy but there is a particular fund pointed out to satisfy it". For example, "I give to Malik 50,000 naira to be drawn from my account at Union Bank Pic lIupeju, Lagos. (d) PECUNIARY OR RESIDUARY LEGACY: This is just a gift of money e.g. I give to my sister Veronica =N= 10,000.00. The pecuniary legacy may be stated to be given at a particular time period e.g. "I give to my wife Agnes the sum of =N= 1,000,000 every year for her maintenance. This is called an annuity to be paid every year. (e) RESIDUARY Legacy is a gift of personal property left after payment of specific, general, demonstrative and pecuniary legacies and all debts, liabilities and expenses charged on the personal estate. A residuary legacy clause is inserted in a Will to prevent partial intestacy for property which the testator may not have disposed off in the Will and for gifts which may have failed. (A situation of intestacy is when there is no Will at all or the Will is invalid). 7] THE 2ND CLASS OF GIFTS ARE CALLED DEVISES Devises are gift of real property such as land. Devises too can take different forms. It can be specific, general and residuary. A Specific Device is a gift of an identified real property belonging to the testator. It is distinguished from all the other real properties of the testator. For example "I give to my son, Adebola my house at No 1 Maitama Avenue, Abuja. A specific devise is subject to ademption and if the property is no longer in existence at the time of the testators death, the beneficiary gets nothing.

A General Devise is an unidentified and undistinguished gift of real property. For example "I give to my daughter, Folashade, all my landed property in Nigeria" A Residuary Devises is a gift of real property left after satisfaction of specific and general devises and all debts liabilities and expenses. 8] In making a Will certain religious, cultural and social considerations may affect the mind of the maker. We can briefly consider one of such like the DISPOSTION OF PROPERTY UNDER ISLAMIC LAW In Moslem communities, Islamic law governed disposition of property. Under it a testator does not have full testamentary freedom as the Quoran stipulates the manner in which property is to be disposed off at death. The testator can dispose off only one third of his property and the remaining two thirds must be disposed of according to Islamic rules of inheritance stipulated in the Quoran The effect of Islamic law on the right of a testator to make a will under the provisions of the Wills Act 1837 was examined by the Supreme Court of Nigeria in the case of ADESUBOKAN V YINUSA (1971) ALL NLR 225- The testator a Yoruba man and a Muslim by faith from Lagos State died in Zaria, Northern Nigeria, where the property of the subject matter of the will was situated. Muslim law of the Maliki School applied as part of the customary law in Zaria. The testator by his will, devised property to several persons, including his heirs at law and others. The validity of the Will was contested on the ground that the testator had not given the mandatory portion of his property as enjoined by Islam to his heirs at law. It was held at the court of first instance that the Will was invalid and the Court set aside the probate which had already been granted to the Will. The main ground for this decision was that the testator did not comply with Islamic injunction in the disposition he made in his Will. On appeal to the Supreme Court the Will was

upheld on two alternative grounds. Firstly, that there was no evidence that Muslim law of the Maliki School was part of the customary law of Lagos State which was binding on the deceased being his State of Origin. Secondly, that on assumption that Muslim law applied, such Muslim law was incompatible directly or by implication with the provisions of the Wills Act 1837. The logic behind the decision of the Supreme Court was that the deceased had two options for the devolution of his property and one was exclusive of the other. Once he opted for devolution under the Wills Act, the question of customary or religious injunction could not come in. It can therefore be concluded that once a person opts to make a Will, it can not be subjected to Islamic Law.

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At this point, I would like to touch one of the most important features of a valid Will. This is that a maker of Will must have full testamentary capacity. Testamentary capacity involves two elements: The first is age and the 2nd is the mental capacity. Age: A person must have attained the minimum age stipulated under the law for making a Will. The minimum age varies from 18 to 21 years in different jurisdictions. Mental Capacity: A person must also possess mental capacity to make a will. The degree of mental capacity required to make a Will was laid down in the case of BANKS V. GOODFELLOW 1870 LR5 QB 549. Cockburn CJ laid down the test to be used in establishing whether a testator possessed mental capacity to make a Will. According to the learned Chief Justice of England.

"As to the testator's capacity, he must in the language of the law have a sound and disposing mind and memoryA recollection of the property he means to dispose off, of the person who is the object of his bounty and the manner in which it is to be distributed between them". Again, in the case of JOHNSON V. MAjA 1951 13 WACA 290. The testator's will was challenged by his widow on the following grounds: 1) That the testator lacked mental capacity. 2) That the will was improperly executed; and 3) That the testator was under the undue influence of his mistress when he made the Will. There was evidence that the testator had suffered from cerebral affliction. The court found however that the testator was normal and that he executed the Will while he was in private practice as a Barrister\and Solicitor and he could not have been mentally incapacited. I suppose that his decision means that anybody currently practising law has the requisite mental capacity to make a valid Will. Some people may disagree with that. In ADEBAJO V. ADEBAJO 1973 3 ECSLR PT 1 AT 544 (a case involving the late owner of the defunct stationary stores), the Supreme Court held that the testator made detailed and equitable provision for all his wives and children and other relatives and that such provisions are indicative of a person with sound and disposing mind and memory. 10] MENTAL CAPACITY AT EXECUTION OF Will: A testator must possess mental capacity at the time of executing the Will. If a testator suffers from insanity and executes a Will while insane the Will is invalid. Any subsequent recovery Will not validate the Will.

However, where there was lucid interval and during such interval, a Will is executed, the Will is valid. Also, if a testator executes a Will and subsequently becomes insane, the Will remains valid and the supervening insanity does not invalidate it. There is however an exception to the rule that the testator must possess mental capacity at the time of executing the Will. If the testator had mental capacity at the time of giving instructions and those instruction were given to a solicitor, and the testator, before executing the Will, lost mental capacity, the Will be valid if the Will was made according to those instruction and the testator understood that he was executing a testamentary document for which he had earlier given instructions. These points were taken in the case of PARKER V FELGATE 1883 8 PD 171 and ADEBAjO V. ADEBAjO which I earlier mentioned. 11] Another aspect that deserves a brief mention when

discussing this topic is the power of the testator to amend a Will several times over. This ensures that one does not become a slave to one's Will. Amendment of a Will is done by way of A CODICIL. The various operating laws in Nigeria stipulate the legal effect of alteration in Wills. Sections 14, 16 and 2S Wills law 1990 Lagos State, provide for the amendments of Wills. If you alter a Will, the alteration must be such that what you deleted or altered must not be visible to the naked eyes. This is to prevent any confusion. It is always better to have a Codicil redrafted formally.

A SUMMARY OF LEGAL REQUIREMENTS FOR AMENDMENT OR ALTERATION of a Will include the following: 1) The various laws contemplated only alterations made after the execution of the Will. It would therefore seem that any alteration made before execution is effectual and there is no need for the execution of such alteration. 2) Amendments that do not conform to statutory provisions are invalid. But if the original text is apparent probate will be granted to the Will as if there had been no alteration. Probate means the giving effect by the High Court to the contents of a Will. 3) Amendments or Alterations must be witnessed and attested. It is a statutory requirement that any alteration must be executed and attested in the same manner a Will is executed and attested. 12] MAKING A WILL If you desire to make a Will the first step is to contact your Lawyer. In some more advanced countries like the United Kingdom, Do-ItYourself Will packs are to be found in bookshops and supermarkets. One can pick up the form, fill it in and send it to the Probate Registry of the High Court where it is registered and kept for a fee. In Nigeria it is advisable to instruct your Lawyer. Your Lawyer will usually obtain from you very detailed information. You must be as accurate as possible when giving the information. It is always said that 3 persons which you can not but give accurate information to are your doctor so he can properly treat you, your priest or imam so that prayers are directed to the point of need and finally your Lawyer for very obvious reasons. A check list of details which your Lawyer may require from you will include: a. Your Personal Details.