DEAD YET IN-CHARGE
toyinsrunway
Without trying to scare you I need to remind you that death is a respecter of no one, it comes to the old as well as the young, the male or the female. However the question is; what become of your life’s labor after you are gone to the grave beyond? are you so careless as to allow all comers to feast on them at your death?
While it is understandable that you are careless what happen after you are dead and gone but are you also careless about your love ones after your demise? Is it not better to secure their future even in death? and what better way to do it than to have your your WILL written, spelling out how you wish for your properties to be shared after your death, particularly as an African and in Africa where tradition gives more authority to our extended or distant relatives over the deceases estate.
A. WHAT IS A WILL:- A Will is a testamentary document voluntarily made and executed according to law by a Testator (the deceased) with sound disposing mind wherein he/she disposes of his/her property (real or personal) according to the WILLS Law and gives other directives as he/she may deem fit.
B. LEGAL REQUIREMENTS OF A WILL (SECTION 4 OF WILLS LAW)
1. It must be in writing .
2. It must be signed by the Testator or signed in his name by other person in his presence and by his direction. Usually the Testator must sign at the foot of the Will
3. The Testator must make or acknowledge his signature in the presence of at least two witnesses present at the same time.
4. The witnesses must attest and subscribe the Will in the presence of the Testator.
5. The Testator must possess corpus mentis (sound mind) at the time of making of the will.
6. It must carry date.
C. LAWS GOVERNING WILL: Though Wills Law is generally similar across States and Nations of the world, however there exists areas of variance, it is therefore advisable to get the relevant wills law applicable in your state of interest or residence. However in Nigeria and Lagos State in particular the applicable wills laws are:
• Example: Wills Law; CAP.W2, Laws of Lagos State
• The Wills Act 1837
• The Wills Amended Act, 1852
• High Court (Civil Procedure) Rules, 2013
• The general principles of Common Law and Equity.
D. THE PURPOSE OF A WILL
A Will is a legal document which says how your wish is to be carried out when at death. By making a Will you will be able to say how your property is to be distributed, how you desire to be buried, who your executors should be, who should and should not benefit from your estate, etc. Though, there are customary laws which are followed in distributing property when a person dies, there is also the statutory law. The making of Will falls under the statutory law.
Some misconceptions about will writing is that writing once will aides the untimely death of the testator, of course this far from the truth. Some spouses also have the belief that their partner could assassinate them if they are aware that a Will has been made especially where it favours them but the truth is that crime is not largely committed purely on motivation, crime is deep seated in the criminals mind. Many crimes have been committed without any external motivation.
More so, where a Will is not made, it can cause a great hardship to the entire family in the event of a sudden death. In our society, when a man dies, tradition expects his property to be evenly distributed among his family members (both nuclear and extended family). This mode of distribution in most cases ends with friction among family members.
Although some customary laws do stipulate that the widow must be looked after, today she is usually not cared for. Some relations think only of their selfish interest and think nothing about the bereaved immediate family.
Making a Will helps to ensure that your property does not go to enrich greedy relatives, but remains for your family so that they can continue to live a normal life after your death.
E. WHY IS IT DESIRABLE TO MAKE A WILL
Many people are reluctant to make a WILL often described as a "remembrancer of death". However there are ample reasons why it is desirable to make a Will since death is inevitable. The reasons are:
• A Will enable the Testator to decide how and who his or her properties should go to.
• A Will excludes the rules of inheritance under native law and custom
• It excludes statutory rules of inheritance.
• The Testator can choose people he wants as his personal Representatives.
• A grant of administration involves the additional expense of a bond and sureties and these can be avoided on grant of probate.
• Upon the death of the last Administrator, fresh grant has to be taken out, whereas by transmission the executors of the last surviving executor could complete the winding up of the Estate of the Testator.
• An executor has authority to act as from death and even before the issuance of probate he could do certain things on behalf of the estate. An Administrator on the other hand may not act until a grant of Letters of Administration has been issued.
• The Testator may by his Will appoint guardian for his infant children and he could in Similar manner give directives as to the disposal of his remains.
F. CONTENT OF A WILL:-
A Will:
a. Must be in writing with signatures by the Testator and two witnesses who must witness the signing of the Will at the same time.
b. Should commence with the full name, address and occupation of the testator.
c. A clause revoking all former Wills and codicils
d. The appointment of Executors and Trustees
e. A Trustee charging clause.
f. Specific legacies (Gifts of personal estate-Gold rings etc)
g. Specific devises (Gift of Land)
h. Gift of the residue of the estate (property not specifically dealt with)
i. Date of execution
j. Attestation clause
k. Signature of the Testator and
I. Signature of two witnesses present at the same time.
G. CAPACITY TO MAKE A WILL
Every adult (male or female) can make a WILL however, it is important to bear the following in mind:
a) Infant: who is an infant? Any person below the age of 18 years or 21 years as the case may be is an infant, An infant unless in actual military service cannot make a Will or Any seaman, or mariner or crew of commercial airline being at sea or in the air may depose of his estate even if he/she is under 18years (section 6 of the Wills Law).
b) Mentally disabled person: such a person cannot make a valid Will whilst his disability subsists. He must possess corpus mentis (sound mind).
c) BLIND PERSON: Such person can make a Will but it has to be shown that the Will was read to him and he appeared perfectly to understand the contents. But a blind man
cannot witness a Will.
d) Women: Any woman of 18 years and above or less than 18 years with the above qualifications can make a Will. .
e) Illiterate: An illiterate person can make a Will but it must be shown that the contents were read over to him and he appeared perfectly to understand and approve of same. Accordingly an attestation clause similar to that used for a blind person must be inserted
in the Will of an illiterate.
H. DOES MARRIAGE AFFECT A WILL
EVERY Will Made by a man or a woman shall be revoked by his or her marriage (other than a marriage in accordance with customary law - section 17 of the Wills Law, Lagos State) unless it is made in contemplation of the marriage or a Will made in exercise of a power of appointment.
I. CAN I WRITE MY OWN WILL?
Yes. You can write your own Will but you must make sure that your will is valid. That is, you must write it according to what the Law says if not, it will amount to mere wish and not a Will.
J. IS IT BETTER TO CONSULT A LAWYER TO MAKE A WILL?
Yes. If you can afford it, it is better for a lawyer to write your will for you. This is because a lawyer will not find it difficult to comply with the legal requirements. Often time, people are not sure whether they have said the right thing or written a document in the right. Manner, in such situations, a lawyer will be able to give the right advice.
K. CAN YOU MAKE A WILL TO COVER PROPERTY YOU DON'T OWN
No. According to section 1 of the Wills Law of Lagos State, you can only bequeath or dispose all or any property (real or personal) in which the person is entitled either in law or in equity or at the time of the death of the Testator. In the same sense, you can bequeath a family property not partitioned.
L. CAN A FAMILY MEMBER PROTEST IF HE OR SHE IS NOT FINANCIALLY PROVIDED FOR BY THE TESTATOR’S WILL?
Yes. Where a person dies and is survived by a wife or wives or husband of the deceased, a child or children of the deceased, any of such person or persons may apply (within six months of the grant of probate) to the court for an order on the ground that disposition of the deceased estate effected by his WILL - is not such to make reasonable financial provision for him or her. Section 2 of the Wills Law, Lagos State.
M. HOW CAN WILL BE REVOKED?
1. By another Will or codicil - section 13
2. By destroying the Will (burning or tearing) section 13
3. By marriage- section 11
N. WHEN WILL A WILL TAKE EFFECT?
Every Will must take effect only after the death of the testator. Section 17 of the Wills Law of Lagos State, Heb: 9:16-17
O. WHERE TO KEEP YOUR WILL
• The testator normally direct where his Will should be kept but usually it is advisable to keep the will on the Court, Bank or with the Lawyer who wrote the Will and perhaps, his personal safe.
P. CAN I CHANGE MY WILL OR ADD NEW THINGS OR UPDATE IT?
Yes. A Will can be changed as many times as the Testator wishes. Any addition or amendment you make to a Will is called CODICIL and it must be done in accordance' with the WILLS Law.
Q. EXECUTORS/TRUSTEES
These are persons who administer the deceased estate as directed before or after obtaining Probate Letter. Two Executors are desirable where there are infants unless a Bank or an Insurance Company or Public Trustee is appointed. However, not more than four should be appointed because probate cannot be granted to more than four Executors in respect of the same property.
Finally it is advisable not to make the fact that you have written your will subject of casual discussion, informing everybody on the street that you have made a Will. Keep it secret because, if the content is revealed before your death, the friction you are trying to avoid can be more.
You are also expected to make reasonable financial provision to your immediate family even if you have other persons in mind while making your will.
Don't sell off all your property before you die, (Note: in the Bible: Proverbs 13:22 that "A good man leaves an inheritance to his children's children").
God bless you, and thank you for listening.
Comments: Your comments, contributions, opinions, views, etc is highly welcome.
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