IMPORTANCE OF A WILL IN NIGERIA
INTRODUCTION
Making a Will and planning your estate effectively takes time and effort. The reason why many people avoid engaging in the practice of planning their estate is that they do not want to spend too much time thinking about the inevitability of death. The prospect of death is an uncomfortable topic, but planning your estate does not need to be. Planning your estate can be an uplifting activity because you can plan how your assets will benefit others in the future.
If you are considering whether you should take the time to make a plan or create an estate plan, you should first understand what will happen if you do not plan your estate. Dying without an estate plan is known as dying intestate, and it has several possible negative consequences. One of which is the assets belonging to the person will need to go through the probate process, and the process of administering an estate without a Will is a very lengthy one, another is having unintended heirs. All of these can be prevented if a Will is made or rather if time is taken to plan or create an estate plan.
Definition
A Will or Testament is a legal document by which a person, the testator, expresses their wishes as to how their property is to be distributed at death, and names one or more persons called the executor, to manage the estate until its final distribution. [1] Simply put, it is a legal document in which you, the testator, declare who will manage your estate after you die. It helps a person determine what happens to his properties/estate after his death; it also helps him to give any instructions he may wish to be carried out if he is no longer alive. Apart from deciding who gets your assets, a Will can also serve to declare whom you wish to become the guardian for any minor or dependents.
The Validity of a Will
In preparing a Will, a testator (person making his will) must have the capacity to do so, meaning he must be of legal age (from 18yrs and above) and have mental capacity (he must be of sound mind). Furthermore, for a will to be valid it must be;[2]
- It must be made voluntarily
- It must be in writing (either typed or handwritten)
- It must be signed by the testator
- The signature of the testator must be acknowledged by at least 2 witnesses (it is advised that a beneficiary to a Will must not act as a witness to the Will).
- The testator must be mentally Stable
- It must name the beneficiary or beneficiaries
- It must identify the properties.
In the probate courts today, there are many parties in legal battles contesting the provisions of a will and the court is likely to set aside a Will if there is a conclusive proof that the testator did not have the mental capacity to understand what he was doing at the time the Will was made or if the testator was unduly influenced to dispose of his properties as he did in the Will.
A person who dies without making a will is described as a person who ‘died intestate’, and in such situations, certain members of the family shall apply to the probate registry of the High Court to be granted letters of administration of the deceased’s estate.
When Should a Will be made?
A Will can be made by a person who has acquired any assets that can outlive him or her. Also, when a person has dependents, then a Will should be made. The Wills Act stipulates that a valid Will can only be made by a person who is from 18 (Eighteen) years of age[3].
Therefore, an underage person cannot make a Will, except if he is a seaman, mariner, or part of a crew of a commercial airline. The hazardous nature of their jobs makes the law envisage that there is more likelihood for them to die in the course of their duty. Hence, the law allows them to make a valid Will even though they are less than the statutory age.
THE IMPORTANCE OF A WILL
- To determine how assets will be shared (Making your wish known):
A Will is used to share a Testator’s assets, both current and fixed assets to his beneficiaries. A Testator has discretion in determining how this will be done.
A Testator can also take care of specific matters in his Will, i.e., if the Testator, has a Company, he can take care of issues like who will be the directors of the Company upon his demise and the transmission of shares in the Company. The only limitation to this power is imposed by Section 1 of the Wills Act which provides that a Testator cannot dispose of properties that he has no power to dispose of under the customary law to which he/ she is subject. An example of this is the Idiogbo (this is the house in which the Testator lived during his lifetime under Benin culture). Under the Benin Customary Law, the house can only be passed to the first son of the deceased and not anyone else. Therefore, when making a Will, a Testator cannot give the Idiogbe to another person.[4]
- To appoint Executors of the Estate:
Executors appointed in a Will are in control of a Testator’s estate upon his death. The Executors are responsible for the transfer of the property to the beneficiaries, as they do not immediately divest on the beneficiaries upon the demise of the Testator. A Will allows a Testator to choose trustworthy persons as his Executors, who will take into consideration the interests of the beneficiaries. When a person dies intestate (without a Will), only certain categories of people can become Executors and these persons may not deal with the estate fairly.
- To avoid your properties being shared according to customary law:
In the absence of a Will, a deceased person’s property will be shared according to customary law. Most customary laws are archaic. Some customs do not allow properties to be given to female children and wives of the deceased. To circumvent these harsh and backward customs, it is necessary to make a Will.
- To avoid incessant suits in court:
It is very common in Nigeria that upon a man’s death, his children will start fighting amongst themselves. This is even more common or worse where the deceased has many wives and died without a Will. Where a Testator makes a valid Will before his death, the likelihood for the Court to upturn it is slim. This makes the wishes of the Testator stand. Incessant suits over the estate will be also avoided.
- To take care of other incidental matters like guardianship and funeral arrangements:
A Will is not only used to distribute assets. It can also be used to appoint guardians for one’s young children and wards. This is to ensure that the affairs of that child or ward are taken care of even after the Testator’s death. Specific funeral arrangements of the Testator can also be included in a Will.
- The tedious process of assessing Letters of Administration:
Getting letters of administration to administer a deceased’s estate takes time and it is a tedious process. This could lead to the depletion of the estate of a Testator while waiting for the grant of letters of administration, unlike a Will which comes into operation quicker.
- Peace of Mind:
Knowing that one’s estate will be taken care of according to one’s wishes gives a Testator peace of mind. There are numerous stories of the legacies of wealthy men falling into ruins because they fell into the wrong hands. Having a Will allows a Testator to choose capable people to carry on his legacies after his demise.
CONCLUSION
The benefits of making a Will cannot be overemphasized; however, such benefits only arise if you leave a valid Will that cannot be challenged or disapproved after the death of its maker. On this note, it is also important to give clear instructions about how you want your assets to be administered, managed, shared, or distributed.
Furthermore, it is important to seek proper legal guidance for the avoidance of future problems in the execution of the Will.
[1] Maji Ojeah, Wills Act & the requirement under the Nigerian Law 2019, accessed via https://www.manifieldsolicitors.com/2019/01/15/wills-act-and-the-requirements-under-the-nigerian-law/ accessed on 2nd Sept, 2022
[2] Ibid 1
[3] Section 7 of the Wills Act
[4] Faith Saiki, Importance of Making a Will in Nigeria, 23 Dec 2019, accessed via Importance Of Making A Will In Nigeria – Wills/ Intestacy/ Estate Planning – Nigeria (mondaq.com), accessed on 22 August, 2022