A CRITICAL APPRAISAL OF ESSENTIAL AND FORMAL REQUIREMENT OF A VALID WILL UNDER THE KADUNA STATE WILL LAW 1990

BY

SULAYMON TADESE ALAMOL-YEQEEN U08SH1058

BEING THE LONG ESSAY SUBMITTED TO THE FACULTY OF LAW, AHMADU BELLO UNIVERSITY, ZARIA, IN PARTIAL FULFILLMENT FOR THE REQUIREMENT OF BACHELOR IN LAWS (LL.B.) DEGREE (HONS)

MAY, 2013

COPYRIGHT STATEMENT Sulaymn Tadese Alamol-Yeqeen All rights reserved no part of this essay may be reproduced, stored in a retrieval system or transmitted in any form, or by any means except with express permission of the author.

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DECLARATION I hereby declare that this long essay has been the result of an independent research, undertaken by me, under the supervision of Barrister Hannatu Adamu of the Department of Commercial Law, Ahmadu Bello University, Zaria. All textbooks, quotations or any other information are indicated and the sources acknowledge by means of footnotes and references.

________________________ Sulaymon Tadese Alamol-Yeqeen

___________________ Date

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CERTIFICATION This is to certify that this long essay: A CRITICAL APPRAISAL OF ESSENTIAL AND FORMAL REQUIREMENT OF A VALID WILL UNDER THE KADUNA SATE WILL LAW 1990 was written by SULAYMN TADESE ALAMOL-YEQEEN. It has been read and approved as meeting part of the requirement for the award of Bachelor of Law (LL.B Hons) in the Faculty of Law, Ahmadu Bello University, Zaria.

_________________ Barr. Hanatu Adamu Project Supervisor

_______________ Date

_________________ Dr. U.S. Muhammad Project Coordinator

_______________ Date

_________________ Dr. A.M. Madaki Head, Department of Private Law

_______________ Date

_________________ Prof. Y.Y. Bambale Dean of Law, A.B.U., Zaria

_______________ Date

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DEDICATION MOM AND DAD You are both special in every way You both are the reason why Im so strong You teach me right from wrong. And when Im sad you song to me that special song. You tell me everything I need to know. And when I need you, youre always there, all set to go So when Im all blue and sad, I call on you, my mom and dad. Our Lord! Forgive me and my parents And [all] the believers on the Day When the reckoning will be established You

ACKNOWLEDGEMENT Whosoever is not grateful to people is not grateful to Allah I give all glory to God who has always being my present help in time of need. Without you Allah, I would not have made it this far. With the whole of my heart. My thanks proceed to my lovely parents Alh. Alamol-Yeqeen Tadese who has an unquantifiable measure encouraged me in the pursuit of my dream Dad, you are my mirror, I love you so much and to the best mum in the world which is my Afusat Aduke Tadese, you are my gold and my model, I cherish you so much. Thanks for your love and support. To my siblings, Muibat Kikelomo, Talubi Dimeji, Fauzat Ajoke, life without you would have been vague for me thank you for all the love, support and above all the unity between us. Words are not enough to express my love for you all but in my little way a say I hold you all in high esteem. To my versatile, amicable, efficient, supportive and indefatigable supervisor Barr. Hannatu Adamu, you are a mother indeed and the joy of many generations, thank you for contributing your own quota in the realization of my dream by supervising my project and for the right guidance may God continue to uphold and lift you up.
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To my best friend, Nasiru Sulaeman Arisekola (most reserved) Ahmadu Bello University, without you would have been empty and vague for me, thank you for sharing my little world, you are indeed a jewel of inestimable value, thank you for everything, I cherish you. This will not be complete without mentioning the wonderful friends that God has made our path to cross in Ahmadu Bello University for a purpose, these are; Alakan Aliyu Akorede (knowing you is a blessing to me and you sharing in my world is a notable point in my life, you worth is more than rubies, you are a treasure. Thank you for everything), Jibrin Alhassan you have been more than a friend to me, thanks for giving me a shoulder to lean on, you are a rare gem. I love you so much, David Ibitayo (Ekitikate), Adebowale Muideen Omotayo, Abubakar Hammed(Yamoye), Ridwanu Ibitoye, Mustopha Abur-Rasaq(Ayetoro), Ismael Adbul-Azeez(Bajiwe), Abbas Aqeeb, Abbas Tijani (Dr.), Sherif Akinkumi, Lawal Yusuf Adeniyi(Yuslaw),Idris Ayuba(kogi),Mustapha Maru and all those that God has used to bless me in the pursuit of my career, I want to say thank you all. May God reward you all accordingly and exceedingly.

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Without my wife Monsurat Abddulkareem Ajoke, standing behind me, this journey would have never ending. Then looking confidence in me ensured that I smoothly sail past and her listening and support in the last couple of years. Thank for your deep love and unending support. Lastly, to everyone that God has used to impact my life in one way or the other spiritually, financially, academically, morally, etc. I am sincerely grateful. May God continue bless you all. Thank you for everything.

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ABSTRACT Death affects people in many ways. It is never timely, confronts the family with bereavement the need to readjust emotionally and financially, and often with an unknown future. Death is not only a personal issue but a legal one as well. No doubt a person has the unlimited power to dispose off his legal property inter- vivors in any way or manner he chooses. He may decide to give out everything he owned to total strangers or friends at the expense of his wife, children, mothers, brothers, sisters or relations and nobody can question that upon his death, the law tend to limit this freedom. Various reasons ranging from social responsibility, legal, tradition or custom, religion have been put forward in justifying this restriction. Is it, therefore, justified to limit the testamentary freedom of a testator. Thus, this essay is a modest attempt to discuss a critical appraisal of essential and formal requirement of a valid will under the Kaduna State Will Law 1990 vis-a-vis their importance to the society from the standpoint of the ongoing societal development and innovations.

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TABLE OF CASES 1) 2) 3) 4) 5) 6) 7) 8) 9) 10) 11) 12) 13) 14) Adebajo v adebajo (1973) 4 SC 22 Adeyinka v Ibiduni (1939) 4 FSC 280 Agidigbi v Agidigbi (1996) 6 NWLR Pt 454 p. 300 Andrew v Mortley (1862) 142 ER 1243 Arthur v Botienham (1970) 11 Mod. Rep 148 Amutsaghan Dafioka & Anor v Couple Edede & 5 Ors (29/2/68) unreported Adesubokun v Yinusa (1971) 1 ALL 225, (1971) NNLR 770 Banks v Good Fellow (1870) IRS QB 549 Bolanwu v Nezianya (1998) 5 NWLR Pt 119 P. 46; 1 SCNJ 63 Booth v Booth (1926) 42 TLR 454 Barry v Buttins (1838) 2 Moo DCC 1480 Brunt v Brunt (1873) LR 3 P & D 37 B. Finnis (1936) 5 2 TLR 153 Cheese v Love day (1877) LR 2 P & D 78

15) 16) 17) 18) 19) 20) 21) 22) 23) 24) 25) 26) 27) 28) 29)

Cole v Cole (1898) 1 NLR 15 Cartwright v Cartwright (1793) WL 161, ER 928 Casson v Dade (1856) 25 Bran 195 Cain v Moon (1896) 2 Q B. 283 Danmole v Dawodu (1958) 3 FSC 46 Dan-Jumba v Dan-Jumbo (1939) 5 NWLR 33 Dew v Elms (1858) 1 Sw & Tr 155 Estate of Gibson (1949) 2 ALLE R 90 Estate of Fuld Estate of Borthrmann, Caeser and Watmough v Bohrmann (1938) 1 ALL ER 271 Estate of Kremer 1965) 11 OS J 18 Federal Administrator General v Johnson (1960) LLR 291 George v George (1964) 2 FSC 88, AL NLR 136 Glougstoun v Wakott (1843) 11 LTOS Good of Woodward (1871) 2 P & D 206

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30) 31) 32) 33) 34) 35) 36) 37) 38) 39) 40) 41) 42) 43) 44)

Groffman v Groffman (1969) 2 ALL ER 108 Goods of Chateroft (1948) p. 222 Goods of Adams (1972) L. R. 2 PO and D 367 Goods of Morton (1820) 3B & Aid 489, 106 ER 740 Gil v Dill (1909) p. 157 Hack v Newborn 82 ER 834 Hall v Hall (1891) 3 Ch 389 Harness v Public Trustee (1940) 40 SR (NSIN) 414 p 416 Howard v Briathwaite (1812) 1 Ves & B 202 Idehen v Idehen (1991) 6 NWLR p. 259 Johnson v Maja (1951) 12 WACA 290 Jeckins v Gainsford (1863), Swab Trust 93 Jadesimi v Okotie-Eboh (1996) 2 NWLR 429 Keigwin v Keigwin (1943) 3, Quit 609 Lawal-Osula v Lawal-Osula (1995) 9 NWLR (Pt. 419) p. 259

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45) 46) 47) 48) 49) 50) 51) 52) 53) 54) 55) 56) 57) 58) 59)

Lowthorpe-Lutwidgeu v Elstone (1893) p. 1 Marguess v Winchester (1958) 6 Co Rep 23 Mette v Mette (1859) 1 SW & Tr 416 Nelson v Akofirunmi (1959) LLR 143 Nezianya v Okagbue (1963) ALL 352 p. 10 Nwabuoku v Ottih (1961) 1 ALL NLR 487 Oghahon v Reg. Trusstee (2002) 1 NWLR pt. 749 p. 675 Ogunmefun v Ogunmefun (1931) 10 NRL 81 Okelola v Boyle (1998) 5 NWLR Pt. 119 p. 46:1 SCNJ 63 Ogiamien v Ogianmien (1967) NWLR 245 Osula v Osula (1995) 9 NWLR Pt. 419 p. 259 OLeary v Douglas (1878) 13 LR 323 Parker v Felgate (1893) 8 P & D 471 Perara v Perara (1901) A. C. 354 Public Trustee v Bussell (1993) 30 NWLR 111

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60) 61) 62) 63) 64) 65) 66) 67) 68) 69) 70) 71) 72) 73) 74)

Perkes v Perkes (1871) 2 P&D 206 Re Goods of Savory (1851) 15 Jur 1042 Re Watts v Smithers (1939) Ch 1015 p. 1020 Randfield v Randfield (1863) 32 LF Ch 668 Re Solicitor (1939) 1 QB Smith v Tebbit (1867) LR 1 P & D 398 Suberu v Summonu (1957) Vol. 2 FSC 33 Signh v Armichand (1948) A. C. 161 Sutton v Saddler (1857) CBNs 547 Vol. 140 ER 671 Taiwo v Taiwo (1958) 3 FSC 80 The Estate of Randel Deceased (1962) 1 ALL NLR 130 Tilley v berg & Berg No. 2 (1945) 3 WWR 81 Winte v Nye (1959) 1 ALL ER 552 Winchiosea v Wauchope Yinusa v Adesubokan (1971) 1 AL AILR 225, NNLR 79

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TABLE OF STATUTES 1) 2) 3) 4) 5) 6) 7) 8) 9) 10) 11) Armed Forces Act, 2004 Constitution of the Federal Republic of Nigeria, 1999 Evidence Act Cap E14 (2004) Evidence Act Cap E14 (2011) Wills act, 1837 Wills Law of 1958 Wills Law of Kaduna State, Cap 163, LFN, 1990 Wills Law of Bendel State, 1978 Wills Law of Oyo State, 1990 Wills Law of Lagos State, 2004 Wills Law of Western Nigeria Cap 133, 1959

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LIST OF ABBREVIATIONS 1) 2) 3) 4) 5) 6) 7) 8) 9) AC: ALL ER: ALL NLR: Ch: ER: ERNLR: Exch: FSC: KB: Appeal Cases All England Reports All Nigerian Law Reports Law Reports of Chancery Division English Report Law Reports of Eastern Nigeria Exchenquer Reports Selected Judgement of the Supreme Court Law Reports, Kings Bench Division

10) 11) 12) 13)

LLR: LR: LRN: LT:

High Court of Lagos Law Report London Report Nigerian Law Report Law Times Report

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14) 15) 16) 17) 18) 19) 20) 21) 22) 23) 24) 25) 26)

NLR: NMLR: NNLR: NSCC: NWLR: P&D: QB: SC: Sw & Tr: TLR: WACA: WNLR: SCNJ:

Nigeria Law Reports Nigeria Monthly Law Report Law Reports of Northern Nigeria Nigeria Supreme Court Cases Nigeria Weekly Law Report Law Reports, Probate Law Reports, Queens Bench Division Judgement of Supreme Court of Nigeria Swabey & Transtrams Reports, Probate & Divorce Times Law Report Selected Judgement of West African Court of Appeal Law Reports of Western Nigeria Judgement of Supreme Court of Nigeria

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TABLE OF CONTENTS Title Page . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i ii iii iv v vi ix x xv xvi xviii

Copyright Statement Declaration . Certification . Dedication . . . .

Acknowledgement . Abstract . . . .

Table of Cases Table of Statutes List of Abbreviations Table of Contents CHAPTER ONE

GENERAL INTRODUCTION 1.1 Introduction . . . . . . . . . 1

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1.2 1.3 1.4 1.5 1.6 1.7 1.8

Literature Review

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3 14 15 15 16 16 17

Statement of Problem

Aims and Objective of the Study . Scope of the Study . Justification of the Study Research Methodology Organization Layout . . . . . . . .

CHAPTER TWO DEVELOPMENT OF WILLS LAW IN NIGERIA 2.1 2.2 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 20 28 33 33 36

Definition and Types of Wills

2.2.1 Other Devices of Disposition of Property . 2.3

Historical Development of Wills Law in Nigeria . . . . . . . . . . .

2.3.1 Pre Colonial Era . 2.3.2 Colonial Era .

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2.3.3 Post Colonial Era 2.4 2.5

. . .

. . .

. . .

. . .

. . .

. . .

38 42 45

The Kaduna State Will Law . Legal Terminologies . .

CHAPTER THREE FORMAL REQUIREMENT OF VALID WILL 3.1 3.2 3.3 Introduction . . . . . . . . . . . . . . . . . 48 48 53 54 54 55 57 62

Formal Requirement of a Valid Will under Wills Act 1837

Formalities of Making a Will under the Kaduna State Will Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.3.1 Writing 3.3.2 Age .

3.3.3 Dye Execution 3.3.4 Attestation .

3.3.5 Restrictions on Freedom to make a Will .

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CHAPTER FOUR ESSENTIAL REQUIREMENTS 4.1 4.2 4.3 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 74 77 83 87 89 89 92 92 95 99

Testamentary Capacity Sound Disposing Mind .

4.3.1 When Necessary

4.3.2 Knowledge and Approval . 4.3.3 Effect of Supervising Insanity 4.3.4 Periods of Lucidity . 4.4 4.5 .

Recovery After Incapacity .

Presumption of Sound Disposing Mind

4.5.1 Evidence to Support Evidence of Sound Disposing Mind 4.5.2 Delusion . . . . . . . .

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CHAPTER FIVE VITIATING FACTORS 5.1 5.2 Introduction . Vitiating Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 109 109 114 118 120 124 127

5.2.1 Undue Influence 5.2.2 Others 5.3 .

Revocation of Will .

5.3.1 Revocation by Destruction 5.3.2 Subsequent Will or Codicil . 5.3.3 Subsequent Marriage CHAPTER SIX CONCLUSION 6.1 6.2 6.3 Summary Findings . . . . . . . . . . . .

. . . .
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. . . .

. . . .

. . . .

. . . .

135 138 139 141

Recommendation Bibliography .

CHAPTER ONE GENERAL INTRODUCTION 1.1 Introduction

Death affects people in many ways. It is never timely, confronts the family with bereavement the need to readjust emotional, and financially, and often with on unknown future. Death is not only a personal issue but a legal one as well. A death certificate must be issued, and the estate of the deceased individual must devolve to others according to intention of deceased person. For a will to be legally binding a number of requirements must be met. The requirements are complex and legal advice should always be sought before making a will. The reason for this that if the requirement are not met, the will is likely to be rendered invalid, which could result in the deceaseds assets being distributed other than accordance with his or her wishes. A valid will cannot exist unless three essential elements are present. First, there must be a competent testator1. Second, the document purporting to be a will must meet the execution requirements of statutes often called the statutes of Wills, designed to
1

Section 6 cap 163 Laws of Kaduna State (1991).

ensure that the document is not a fraud but is the honest expression the testators intention.2 Third, it must be clear that the testator intended the document to have the legal of a Will.3 A competent testator is a person who is of sound mind and requisite age at the time that he makes the Will, not at the date of his death when it takes effect Anyone over a minimum age, at the usually 18, is legally capable of making a will as long as he is competent. A person under the minimum age, dies intestate (regardless of efforts to make a will), and his property will be distributed according to the laws of descent and distribution. Every state has statutes prescribing the formalities to be observed in making a valid will. The requirements relate to the writing, signing, witnessing, or attestation of the will in addition to its publication, these legislatives safeguards prevent tentative doubtful or coerced expressions of desire from controlling the manner in which a persons estate is distributed. For a will to be admitted to probate, it must be clear that the testator acted freely in expressing his testamentary intention. A will executed as a result of undue influence,
2 3

Section 7 cap 163 Laws of Kaduna State (1991). Section 8 cap 163 laws Kaduna State (1991).

fraud, or mistake can be declared completely or partially void in a probate proceeding. In this work, we intend exposing the requirement (both formal and essential) that the Will of a deceased must satisfy before his Will and the provisions therein are valid and enforceable. It must be mentioned from the beginning that, and exclusion of any these requirements in the making, formation and creation of a Will render the provision therein void and unenforceable. The area ,of our consideration, is Kaduna state hence an assessment of the formal and essential requirement of a valid Will under the law, by the end of this work, it intended that renders would have been educated on the legal expectation with respect to the making of a Will in Kaduna State. 1.2 Literature Review

Although there are volumes of materials on the subject matter of Wills as it relate to England and Nigerian as a whole, there are dearths of materials on the subject matter of Wills under the Kaduna State law specifically. Consequently, reference was made to the body of Kaduna State Wills law itself and some others Wills law with broader scope with a view to using the present to clarify and make possible

explanations of the former; the attitudes of Will law are also called in aid, so that a good exposition is made. Moreover, since the Wills Act as found in the 2004 volume of the laws of the federation of Nigeria is substantially pari material with the Will Act of England, and the Kaduna State Wills law also derives from the Wills Act cap. 163 L.F.N 2004, it could be confidently said that the attitude of the English court may possibly be that of Nigerian on selected issues. This is not to say however, that the researcher never laid her hands on any useful material, at this juncture, it imperative to acknowledge the book Wills, Law and Practice by Kole Abayomi4 which offered a very helpful purpose and critical explanation on essential forma requirement of a valid Will. Testamentary capacity simplicity connotes many things to many people. Simply put, it means the capacity to make a testament that is a Will. Statutes may delimit the extent of capacity5 For instance, section 4 (1) cap. 163 Laws of Kaduna State States it shall be lawful every person to bequeath dispose of, by his Will executed in accordance with the provisions of this Act, all property to which he is entitled, either in law or in equity at the time of his death. Although the book has made a very good attempt at making

4 5

Abayomi, K. Wills Law and Practice Mbeth and Associates (Nig) Ltd, Lagos (2004) Ibid

references to the position of the law under the various wills laws of state in Nigeria, such references are no doubt only passive as only a comprehensive look is made at the Will Act in the laws of Nigeria as England. Furthermore, Mwabueze6 has suggested that apart from the concept of testamentary capacity which simplifiers connote the capacity to make a testament that is a Will there is also the concept of testamentary power, the logic of which seems to be that to all intents and purposes one may have full testamentary capacity but because the law restricts once ability to dispose of all or some of one property, one may therefore lack the necessary power. One agrees with Abayomi K. when he argues that above sentence of Nwabueze on the matter is mere semantic in that whatever the reason for the testators in ability to dispose of his property as a pleases, in the final analysis, he is said to lack the necessary testamentary capacity 7. It is therefore not in any way necessary to speak of testamentary capacity and testamentary power as appearing to bear meanings that is deferent from one another when they actually connote one and the something.

Nwabueze B. power of Testamentary Disposition in Bendel and Western State of Nigeria (1992). N. S. vol. 1122. 7 Op. cit

In line with the development in the English law of Wills, some states in Nigeria have also qualified the total freedom of testamentary power as contained in the Wills Act of England and the various Wills law of Nigeria. The Wills law of Kaduna State and Lagos State contained such restrictions. Thus by section 5 of the Will law Kaduna State,8 The following special provisions are made for the family and dependence of the testators (1) notwithstanding the provisions of section 1 of this Law where a person dies and is survived by any of the following persons. (a) (b) The wife or wives or husband of the deceased; and A child or children of the deceased

That person or those persons may apply to the court for an order on the grand that disposition of the deceased estate effected by his Will is not such as to make reasonable financial provision for the applicant. (2) In the section reasonable financial provision in the case of application made by virtue of subsection (1) (a) of this section by the husband or wife or wives of the diseased except where the marriage with the deceased was subject of a decree of judicial separation in accordance with any customary Law and all the date of the death the decree was in force and the separation was continuing, means such financial provisions as it would be reasonable in all the circumstances of the case for
8

Cap 163 laws of Kaduna State (1991)

husband or wife wives to receive, whether or not that provision is required for his, or her maintenance. Thus by these two subsections, a spouse or child of the testator who has been left out In the Will or whose legacies are considered by him or her in adequate, can apply to court to vary the Will in order to increase such legacy in the case someone who has been left out completely.9 By Subsection 3 the right to apply to court must be exercised within six month of the grant of probate. In spite of similarity of this provision to the English one, the differences between the two are significant. For example, the right to apply for a variation of the Will is limited to the spouses and children in the Kaduna Law, whilst it is extended to all who were dependent on the testator in the English law. Thus nieces nephews, mistresses and the people with no blood collection could apply provided, they were dependent to some degree on the testator at the time of his death.10 Whilst this innovation may provide, a means of remedying flagrant cases of in justice against family members in the exercise of testamentary power, it may, as
9

Sagay, I.E; Nigerian Law Of Succession, Principle, Cases, Statutes and Commentaries; Mathouse Press Ltd (Nig) Lagos, (2006) P. 132 10 Op. cit.

has been accurately observed by Utuama, give rise to endless litigation, not only involving the washing of the dirty linen in public11 but also holding up the distribution of the testators estate indefinitely. Furthermore, the provision does not seem to make exception for under serving children and spouses. Should family members who abandoned the testator in his life time insist on a right to share in his estate? The Will Edict of Oyo State (1990), not only limits the right of a testator to dispose of property which he is precluded from disposing of under Customary Law, (as is the case under Wills Laws of all states created from the formal Western Region) but also provides that it shall not apply to the Will of a person who immediately before his death, was subject to Islamic Law. This means in effect that, all restrictions imposed by Islamic Law on the right of a Muslims of freely dispose of his estate by Will, now apply to Muslims domiciled in Oyo State. In practice, this means that such a testator has very little freedom of testamentary power, since Islamic Law has comprehensive and fixed positions for the disposal of a deceaseds estate In short there is no point in such a person making a Will. One other thing this provision in the Oyo State Will

11

Utuama; A. A; Evaluation of Wills in Law of Will in Nigeria, Utuama, A.A and Ibru, G.M. (eds) 2001, shaneson C.I. Ltd, Ibadan P. 128.

Law (1990) has done is to effectively override the Supreme Courts decision in Yinusa v. Adebusokan, and restore the decision of Mohammed Bello, J. as he then was.12 On the other hand, Wills have been extensively discussed by foreign authors. Example of these authors are Garrow and Wills; A Will is in its nature revocable during the life of the testator, for he may changed his intentions from time to time and may accordingly give expression to his changed intentions. This is sometimes expressed by saying that a Will is an ambulatory instrument.13 And also Jerman Thomas arguing that Wills are ambulatory and, therefore may be revoked at any time by x before his death T may wish for example, to cancel in the following Ways, by destruction, by executing another Will or codicil, by marriage14. Moreover, insistence, on strict compliance with the formal requirement of a Will arises from the need to safeguard the Will against Fraud. The formal validity of a Will is with regard to immovable governed by the fex situs and in the movables governed by the law of the domicile of the testator at the time of his death15.

12 13

Sagay, I.E. op.cit p. 132 Garrow and Wills, Law of Will and Administration, Butterworth, Welhugton (1960) p.2 14 Jarman Thomas, A Treatise on Wills, Sweet and Maxwell Ltd, London (1951) p.57. 15 These principles are derived from the rules of English common Law, including rules of private international law, incorporated into Nigeria by relevant provisions of the various High court Laws and in the case of Western Nigeria by the law of England (Application law cap. 60, 1959 law of Western Nigeria.

There are a number of cases on the issue. An example is the case of B. Finn;16 n a predominantly illiterate society like Nigeria, special cognizance has to be taking of this phenomenon. This is a significant number of illiterate testators will usually authenticate the content of the Will by making a thumb mark. In an English case of B. Finn, it was held that where an illiterate testator made a thumb mark in lieu of signature, this was sufficient although the normal mark in such circumstances in England was a cross. By contrast, the normal mark such circumstances in Nigeria of the thumb mark. The issue of the validity of the thumb mark in lieu of signature cross for consideration in Amutsaghan Dafioka & Anor. V. Couple Edede & 5 Ors.17 In when a Will validity was challenged because it did not bear illiterate testators signature but nearly her thumb mark. Evidence was adduced to establish that the deceased affixed her thumb mark after the content of the Will had been interpreted in Urbobo Language, her language. The thumb mark imprint was also done in presence of two witnesses who deposed to that effect separate document. The question was whatever thumb constituted signing as stipulated in the Will Law of Western Nigerian.

16 17

15 (1936) 5. 2TLR. 153 Unreported, High court of Midwestern State Sapele, Judicial division (Ekeruche), 29/2/68.

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In answering this question affirmatively, Ekeruche, J. referred to the concise Oxford Dictionary which defined to sign as to acknowledge or guarantee (letter, deed, picture, book, article, petition, e.t.c. as ones own production or as having ones authority or consent by affixing or having affixed ones name, initials or recognized mark. Even more to the point was the courts reference to the second impression of the dictionary of English law by Ear/Joweth which defines signature as follows at page164 I. A person signs a document when he writes or marks something on it in taken of his intention to be bound by its contents. In the case of an ordinary person signature is commonly performed by his subscribing his name to the document and hence but signature is frequently used as equivalent to subscription but any mark is sufficient if it shows an intention to be bound by the document. Illiterate people commonly sign by making a cross finally, the court also referred to the Western Nigerian Interpretation Law, Cap 51 of the Laws of Western Nigeria, 1959, in which the word sign with referred to a person who is unable to write his name is state to include a mark.

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The courts have been generally very flexible in interpreting the word signature The following have been held to constitute signature initial alone18 or assumed name,19 stamping an instrument20 or your loving Mother.21 Meant to represent the testatrix. In the Goods of Cheleroft22 a testatrix was on the verge of her death. Her normal signature was E Chaleroft, but she was only able write E Cha. It was held that this was sufficient Formerly, under the Kaduna state Wills Law 1990. Section 7(c) provides that no Wills shall be valid unless the testator makes or acknowledges the signature in the presence of at least two witnesses present at the sometime23. And also Wills Act of 1837, the signature was required to be at foot on end thereof of the Will. This was widely interpreted to mean that it must immediately follow the dispositive part of the Will. As a result, a testators signature was regarded as invalid of it was possible to insert any writing between the last word in the Will and the signature. The Wills Amendment Act of 1852 was brought into correct that situation. Under it a testators signature could also validity be at or after, or following or under, or beside, or
18 19

In Re Goods of savory (1851) 51 Jur. 1042 In B. G lover (1847)11 Jur. 1022 20 Jerking V. Gains ford (1863), Swab V. Trist 93 21 In B cook (1960) I WLR 353. 22 (1948) P. 222 23 Wills law of Kaduna State

12

opposite to the end of the Will or in the attestation clause or beside the signature of the witnesses or after a blank space at the end of a Will, or on a blank page even if there is no room at the bottom of the previous page.24 Thus the vital test in every case is intention of the testator can legitimately be assumed to have been given effect to, by his duly attested signature. In under to achieve a balance and extensive research work, attempt will be made to complement the work done by Nigerian and foreign authors of the Law of Wills. The Kaduna State Will Law may be reviewed to be in concomitance with the new Evidence Act25, which makes provision for documentary Evidence.26 The current Wills laws of Kaduna State do not make provision for a testator who wants to make a will but is not in a position to write anything. Will any information recorded or stored by means of any types-recorder, computer, or other device; or any other material subsequently derive from information recorded or stored; Any label, marking or other writing that identify or describes anything of which it form part or to which it is attached by any means; any photograph, film, negative, tape or

24 25

Section 7 of the Wills law. Of western Nigerian The Evidence Act cap E. 14(2004) 26 Section 258 of the Evidence Act cap. E14 (2011)

13

other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced, be acceptable? All these are capture under the Evidence Act.27 1.3 Statement of Problem

It has been observed that many a people in Kaduna State make their Wills not observing the necessary requirements that make Will valid and in accordance with the expectation of the law, because they are illiterate, so that after death what is being avoided in the form of an unregulated manager affairs of the deceased come to pass as a result of the invalidly of the Will claimed to have been made by the deceased. The result then becomes that the properly of the deceased becomes disposed contrary in the mind of the deceased, his affairs become managed according to the Wills and dictates of another man and his family is being exposed to the danger of the arbitrariness of another man.

27

Section 5(a), section. 258, S. 84(i) of the Evidence Act E. 14 2011

14

1.4

Aims and objective of the study

The aim of this long essay is to discuss This often avoided concept called Will and to elucidate on the requisite formalities prescribed by law as to the formation of a valid Will under Nigeria law i.e. the Wills Act28 and in particular Kaduna State Wills law29 The main objectives of this research are to: a) Highlight the formal and essential requirement of a valid Will under the Kaduna State Wills law with a view to addressing the problem above b) Examine the formal and essential requirement of a valid Will under the English Wills Act with a view to observing any areas of similarity or otherwise. c) Examine other methods of disposition of properties as recognized by the law a view to identifying some other easy means of property disposition. d) 1.5 Feature factors that vitiate or revolve Wills. Scope of the Study

The scope of the research will encompass Kaduna Wills law generally but reference will be made to the situations in other parts of Nigeria, as the English law of 1837
28 29

Cap 163 Laws of Kaduna State (1991) Wills Act 1837

15

1.6

Justification of the Study

As earlier on state, the law on Will in Nigeria. Is an aspect of law which many authors have neglected hence research in this area will be of immense benefit to the whole society. The research Will also be of benefit to a legal practitioner as it Will serve as a guide to which recourse may be made when drafting a clients Will It will also benefit layman in the street because it will avert his mind to the requirement at making a valid for there is no man who is sure of when he/she will die. 1.7 Research Methodology

The method which Will be used in this research is Doctorial i.e. library oriented. Distinguished works of several legal authors, local and foreign, Will serve as a guide throughout the research. The research will also rely on the daily experiences of Nigerians with regards to making of a Will and succession statutes. Other relevant materials such as law Journal, newspaper and internet material shall be consulted in the course of this research.
16

1.8

Organizational Layouts

This work is divided into six chapters Chapter one gives a general introduction of the subject matter, introducing what is to be found in the body of the work. It also gives information on the methodology employed Chapter two discusses in brief historical development and nature of Will. It also define what a wills as well as types of Will that exist under the laws, finally; other device of the disposition of property are also examine there under. Chapter three tagged formal requirement of a valid Will examine the formal requirements not only under the Kaduna state Wills law, which is our area of consideration but also the position of the law under the Will Act of 1837 in England which accidently stands as the parent law to our own in Nigeria from which the inspiration is drawn. Chapter four consider the testamentary capacity a deceased to make Will so that issues such as the mental capacity as in sound disposing mind of the testator e.t.c. is captured. This chapters also captures the effect of supervising insanity Chapter five deals essentially with vitiating factors and revocation of a Will.
17

Chapters six anchors this research by summarizing the work, findings and include the work.

18

CHAPTER TWO DEVELOPMENT OF WILLS LAW IN NIGERIA 2.1 Introduction

Prior to the formal introduction of the English model of Will in our judicial system through the Will Act of 1837, succession to the estate of a deceased was determine customarily though customary or nuncupative Wills in the traditional societies that make up the present day Nigeria. Each society had its own unique means of testamentary disposition but one stand that out across was the fact that such was carried out in the presence of witnesses who ought not to benefit from such disposition. The requirements of the modern day will were not necessary as there were indigenous measure to ensure to compliance, added to the fact that such requirements were alien. Till date, customary or nuncupative wills which are basically oral, are valid but are not within the province of the Wills Act or various Wills laws of the states. The basic

19

nature of a nuncupative or customary will was capture by Hon Justice Adetokunbo Ademola C.J.F.C as the then was) in the case of Ayinke v. Ibidunni1, as follows: It is my view that disposition of properties could be made under native law and custom by a gift followed b a transfer of the property or a declaration by a man on his death-bed in the presence of witnesses. 2.2 Definition

The Blacks law Dictionary defines a Will as follows: Will wish, desire, pleasure, choice, of the faculty of conscious, and especially of deliberate, action. An instrument by which a person makes a disposition of his real personal property, to take effect after his death, and which by its own nature and revocable during his lifetime. The legal expression or declaration of a persons mind or wishes as to the disposition of his property to be performed or take effect after his death. A revocation instrument by which a person makes disposition of this property to take effect after his death. A writing instrument executed with the formalities required by statutes,
1

(1959) 4 FSC 280.

20

whereby a person makes a dispose of his property (real and personal) to take effect after his death.2 On the other hand codicil is defined by the same Dictionary as: A supplement or an addition to a Will, it may explain, modify, add to a Will, it may explain, modify, add to, subtract, qualify, alter, restrain or revoke provisions in existing Will. Such does not purport to dispose of entire estate or to contain the entire Will of testator, nor does it ordinarily expressly or by necessary implication revoke in Toto a prior Will.3 However several authors have given their respective definition as to what a Will is. A Will has been described as the expression by a person of which he intends to take effect only at his death.4 A Will is a testamentary and revocable document, voluntary made, executed and witnessed according to law by a testator with sound disposing mind wherein he disposes of his property subject to any limitation imposed by law and wherein he gives such other directives as he may deem fit to his personal representatives

2 3

Blacks law Dictionary, sixth Edition (1994) at P. 1598. Ibid. 4 Adubi, C.O; Drafting, Conveyancing and Will, The light house publication company Ltd. Lagos (1995) page 107

21

otherwise known as his executors, who administer his estate in accordance with the wishes manifested in the Will.5 Now, in order to break down the legal jargons inherent in the above definitions and put it plainly for the layman, a Will is a document made by a person called testator wherein he confers benefits on another called the beneficiary; a document by which a person transfers benefits or assets to another person; an instrument that provides security or welfare for the family of the maker; the sum total of what a person wishes to happen to those he leaves behind on his death. One striking to note about the Will is that until the maker dies, he reserves the right to alter or revoke it. That is called ambulatory. Importantly too, the Will take effect only upon the death of the maker. Types of Wills There are various types of Will, as follows Statutory Wills A statutory Will is one made in accordance with the provisions of the relevant statute in force6 in order to be valid; it must conform with the requirement
5

Abayomi, K. Wills law and practice. Mbeth and Associates (NIG) Ltd, Lagos (2004).

22

prescribed in the relevant statute. Non-compliance with any or all the stipulations may render the will void and of no effect. In such a situation, the Will. Is not worth the paper in which it is written in a case like this the bounties of the testator might end up with those he never contemplated. Nuncupative Will An oral Will declared or dictated by the testator in the moment before a sufficient number m of witness, and after words reduced to writing; is a nuncupative Will made by the verbal declaration of the testator, and usually dependent merely on oral testimony for proof. Such Will are invalid in certain states, and in others are valid only under certain circumstance7 such as when they are not contradicting an existing legal Will. A nuncupative Will takes the form of an oral declaration made voluntary by the testator during his life time. Such declaration may be made while in good health or in anticipation of death and must be made before credible witnesses. Written Customary Will

Will Act 1837, Wills Act Amendment Act 1852, Wills law of the old Western Region of Nigerian, 1958. Wills Edict 1990 of Lagos stsate, Kaduna Will Law 1991. p.6. 7 th Williams on will (9 ed.), 2008 at p.21

23

A written customary Will is a Will which does not conform and requirement specified by law. It can be described as written declaration which does confirm to statutory requirement. There are two schools of thought on the validity of written customary Wills, Dr. M. Odje appears to suggest that any such document must face or rise with the provision of the general statute relating to Wills.8 According to the view, if a Will complies with the law, it should be treated as statutory Will and if not, it fails and becomes null and void. On the other hand Dr. Okoro inclines to the view that once customary Will is recognized as by native law, and custom, it does not matter in which form it takes whether oral or written. The qualification he adds to it acceptability is that the document is genuine.9 It may really amount to a moots point whether or not a customary written Will is valid and legal within the circles of the village heads, leaders, an kinsmen, it is generally believed that the declarations of the dead are not easily departed from but were executed out of respect for him or in fear of his anger and spiritual vengeance from the grave.

8 9

Harney The Law and Practice of Nigeria and Succession (1664) at p.45. Okoro custom laws of eastern Nigerian and Associates (Nig) Jucial Rules covering their Applications.

24

As long as the declarations whether or oral are accepted by all and no quarrel or disagreement manifest, effect, would be given to them. In the event disagreement and the aggrieved party contests a customary written Will the question then arises; has the document complied with the relevant law? If it has not, then regular court would not lend its weight and authority to such a Will. It would appear that a statutory Will is far more efficacious that the other types. It is unlikely that the enlightened and educated Nigerians would want their bounties to devolve by tenuous methods of disposition. Our kith and kin in the village and those of moderation means in urban areas may use the easier customary mode devolution of property. Joint Wills A join will is a single document containing the testamentary was her (Will) of two or more persons. In other words, a join Will strictly consists of the Wills of two or more person in one document. This a joint will does not take effect as one Will, but as the separated Wills of parties who made it. Thus if a husband and wife make a join will and the husband dies before the wife, the document can be admitted to probate first as the Will of the husband on his death and secondly as the will of the wife on

25

her death subsequently. Thus a joint will is really separate wills made in one document, and it can be revoked by either of both parties at any time, and without the consent of the other part, although This court give rise to actions for breach of contract or trust. in other words apart from the mere fact that a joint Will is made on the same piece of paper, it is for all purposes regarded as the separated Wills of the parties who made it for example one party can make a separate condicil to a joint Will and can republish a joint Will as a separate Will because of the clumsiness, a joint Will is not generally recommended unless the Will is also a mutual Will 10. Mutual Wills By contrast, mutual Wills are made by two or more persons, usually in substantially the same terms, conferring reciprocal benefits, following an agreement between them to make such Wills and not revoke them without the consent of each other. Mutual Wills may be made in the form of a joint Will or as separate Will There are two basic types (a) reciprocal life interests with remainders over. Thus a husband and wife may make mutual Wills giving a life interest to the survivor with remainder
10

Sagay, I.E; Nigerian Law of succession, principles, cases, statutes and commentates. Mathouse pres Ltd (Nig) Lagos (2006) p.132

26

to their son (b) Absolute gifts with alternative provisions in the event of the predecease of the other person. A husband and wife may each make Wills leaving the whole of their property to the survivor, but providing that of the spouse does not survive, then the whole of the property shall go to their son11 Holographic Will This refers to a will written, dated signed by the hand of the testator himself. Normally, a will must be signed by witnesses attesting to the validity of the testators signature and intent, but in many jurisdictions, holographic Wills that have not been witnessed are treated equally to witnesses Wills and need only to meet minimal requirements in order to be probated. There must be evidence that the testator actually created the Will, which can be proved through the use of witnesses, handwriting experts, or other methods. The testator must have had the intellectual capacity to write the Will, although there is a presumption that a testator had such capacity unless there is evidence to the contrary. The testator must be expressing a wish to direct the distribution of his estate to beneficiaries.

11

Ibid Sagay, I.E p.169.

27

Holographic Wills are common and are often created in emergency situations, such as when the testator is alone, trapped, and near death. Jurisdiction that do not generally recognize unwitnessed holographic Wills, Will accordingly grant exceptions to member of the armed services who are involved in armed conflicts and sailors at sea, though in both cases the validity of the holographic will expire at a certain time after it is drafted12. 2.2.1 Other Devices of Disposition of Property Settlement Inter-vivos As has been shown, a testator may leave his property to a beneficiary by the instrumentality of a Will. A similar result may be achieved if the testator conveys his property inter-vivos to trustees to hold for himself (The Settlor) for life with the remainder to a beneficiary. If the beneficiary survives, the settlor, the effect of the settlement is similar. In many respects to gift contained in a Will, the major difference arise from the nature of a Will and of a Will and of a settlement with a Will which is revocable and testament, beneficiary needs generally to survive the testator to be able to take otherwise the gift lapses with a settlement, the interest of

12

http://www.academicjoemals .org/JLCRClast accesed 29 september 2011).

28

the remainder man rest immediately subject to the life. Accordingly, if the beneficiary under a settlement, predeceased the secttlor, then provided the settler had not revoked the settlement, the beneficiarys interest Will form part of the beneficiarys estate.13 Nomination This is a direction to a person say A, who holds funds for another person B, to pay the funds in the went of Bs death, to a person or persons nominated by B take the funds. Nomination, likes effected. Usually at death. Unlike a Will, it is generally limited to funds and does not require the elaborate statutory for militaries necessary for the validity of a Will. In the example given above, if B fail to make any nomination, the funds are then paid directly to the representative of the deceased. 14 Donation Mortis Causa. Donation mortis causa (Latin, meaning gift on the occasion of death). Is a gift made during the life of the donor which is condition upon and takes effect upon, death. 15

13 14

Abayomi, K. op. cit at 3 lbid, Abayomi K. at p. 3 15 http://en.wikipedia.org/wiki/Donation-cause (2 feb 2013).

29

According to the authorities there are usually said to be three essential requirements for a transaction concerning property to constitute a valid donation mortis causa. There have been given variant expression by the courts. The variance over time is party accounted for by the fact that the concept of a donation mortis causa has been expanded by the courts admitting new categories of transaction that will be upheld as such a gift. The original formulation, and one which is often repeated in the cases, is that in Cain v. Moon16 where Lord Russell of killowen said; For an effectual donation mortis causa, three things must combine. First, the gift or donation must have been in contemplation, though not necessarily in expectation, of death; secondly, there must have been delivery to the donee of subject-matter of the gift, and, thirdly, the gift must be made such circumstances as show that the things is to revert to the donor in case he should recover.17 Given later formulation of the relevant conditions it could appear that some modification of this is required. The requirement can now probably be better summarized as follows:

16 17

(1896) 2 Q.B.283 Ibid. at P. 286

30

(i)

It must be made in contemplation, although not necessarily in the expectation, of the donors death,

(ii)

It must be made subjected to the condition that it will only become indefeasible in the event of the donors death and should the deceased imminent death not occur the gift will fail, or, put another way it must be show to be conditional upon the death of the donor and capable of revocation by the donor unit that time; and.

(iii)

There must delivery of the gifted property to the donee, or delivery of part of the means of getting access to the property, or delivery of what have been the essential indicia of title.18

It is generally believed that the gift must be capable of passing as donation. With regard to most personally (personal property), this requirement does not pose any problem, for constructive delivery of the key or the deeds are sufficient and valid. Deed of Gift Deed of gifts, legal instrument that establishes the voluntary transfer of the title to a personal or real property by its owner without monetary consideration.
18

Public Trustee v. Buseell (1993) 30 NSWLR; Harneiss v. Public Trustee (1940) 40 SR (NSW) 414 at 416. 417;57wN (NSW) 157 at 157.158;

31

The deed of gift is formal, legal, agreement that transfers ownership of, and legal rights in, the material to be donated. Executing a deed is in the best interests of both donor and repository. After discussion and agent, and an authorized representative of the repository. The signed deed of gift. Establishes and governs the legal relationship between donor and repository and the legal status of the materials Depending on particular circumstances, lawyers may advise clients to opt for intervivos outright gift instead of testamentary disposition. Such advice may be preferred where the Will is likely to be contested, stolen, destroyed or otherwise tampered with. It may be that the testator out of shear consideration for the feelings of his children and or consideration for church might not want the beneficiary to be mentioned at all in his Will. Or it may not be generation expedient for whatever reason to mention, the beneficiary is the Will. A deed of gift to a love one may allay the fears of the testator and he may have peace of mind to know that he has given some security to the donee in this lifetime.19

19

Aboyomi, K. Op. cit p.4.

32

2.3

Historical Development of Wills law in Nigeria

2.3.1 Pre-Colonial Era In pre-colonial era, the disposition of property was governed by the prevailing customary law or Islamic law prevailing in each community. As at this time writings was unknown to them and the disposition of property at death was done orally and where there was no oral disposition the deceaseds property devolved according to customary rules of inheritance. Then customary law recognized testamentary freedom where by a testator disposes of alienable property according to his whishes although orally. Thus oral disposition were usually made in expectation of imminent death. They are required to be made in the presence of witnesses not be beneficiaries under the disposition. Each society had its own customary law of succession which regulated the devolution of estate in those societies. In Northern Nigeria, where the majorities are Muslims, successions or devolution of properties is regulated by the Islamic law of succession. In the case of Yinusa v. Adesubokan,20 Bello J. (as he then was) held that the testator as a Muslim have

20

(1970), unreported SC25/70 of 17/670; 111 144.

33

capacity to make Will but held further that in so doing, it must be subject to Islamic law of succession he can devise one third of his estate and the other third by Islamic heirs and beneficiaries. Further under the Islamic law, the right of succession is set in the Holy Quran and is to the net estate of the intestate often the payment of funeral expenses, debts, legacies, and other charges. Most often, the male children must have equal share and the daughters half share each and a child may be disinherited of his legal share he is not a Muslim or if he kill his parents with the intension of inheriting their properties. Under the Maliki School, a testator may dispense part of his estate by Will, one third to persons; other than those who would ordinary be his heirs the remaining two third devolve in strict compliance with the Islam law of succession. In the Igbo society, the customary law of succession is govern principally by the principle of primogeniture, that is the eldest son succeeds to his fathers estate and has the property in trust for and on behalf of other children. The wife of the deceased has no right to succession into her husbands estate. NEZIANYA v.

34

OKAGBUE.21 The supreme court held that in accordance with Onitsha customary law, the widow cannot succeed to her late husbands estate where the deceased dies without a made child his real property devolve on his family. Under the Binni customary law of succession, the principle of primogeniture reign supreme. On the death of the testator the eldest surviving son succeeds to his estate OGIAMENT v. OGIAMEN.22. The Supreme Court expressed the view that there was nothing wrong with this custom which is not unknown in some other highly civilized countries of the word. Under the Yoruba system, the property, the property left behind by the deceased will devolve either through the Ori-ojori or the Idi-Igi system. Under the Ori-ojori system, devolution is per capital i.e. it is traced through the number of children one has. While under the Idi-Igi system devolution is per stripes i.e through the number of wives. Under the customary law of succession, before a wish or devolution is given validity, the testator must possess full mental capacity at the time the Will was made. The

21 22

(1963) 1 AllNLR 352 (1967) NMLR 247

35

property must sufficiently identified It must not be community or family property OKELOLA v. BOYEES.23 In the Yoruba society, a man may bequeath his estate the way he feels, however, the children are entitled to his real property to the exclusion of other blood relation. They share equally irrespective of sex and age. Finally; before the coming of colonial rule it is clear from the above that there was a standardized form of devolution of the properties in the Nigeria societies. 2.3.2 Colonial Era The creation of the colony of Lagos in 1862 marked the beginning of introduction into what later becomes Nigeria of English law, after the amalgamation of various colonies by legislation, the common law of England and the doctrine equity and the statute of general application in force in England on the first day of January 1900, was extended to the country. These laws referred to as the receive English law. One of the statutes of general application in Nigeria was the Wills Act 1837. The Act provides for the disposition of property, provided the formalities as spelt out in the Act are complied with. Section 3 Will Act 183724 state

23

(1998) 5. N.W.L.R. (pt119) 46

36

It should be lawful for every person to device bequeath or dispose off his Will executed in manner hereafter require, all real and are personal estate which he shall be entitled to either at law or kin equity at time of his death. Subsequently, the Will Act 1837 was amended by the Wills amended Act 1852 by. S.9. of the 1852 Wills Act cured the hardship caused by the provisions in the 1937.25 Act that a Will or codicil must be signed at its foot by the testator. Thus, the Wills Act 1837 still holds sway in estates that have their Wills Act of 1837 with modifications and allegations. Western Region of Nigerian was one of the first to re-enact the Wills Act of 1837 as the Wills law of 1958.26 Some of the provision it took into account was the customary. Laws of inheritance. S.3ci)27 Will law (supra) provides that a testator cannot dispose property that is subject to native law and custom. Unlike Wills under customary law which are oral and under Islamic law, which may be oral or written, Wills under English law must be in writing. These are other formalities stipulated in the Wills law that must be complied with for a Will to the

24 25

Wills Act, 1837 Wills Act, 1837 26 Wills law of 1958 27 Wills law of Bended state, 1978.

37

valid. APATIRA AND ANOTHER v. AKANDE AND OTHER28, The testator a Muslim made a written Will which was signed by M and his signature was acknowledged in the presence of one witness in an action for declaration of the validity of the Will failed because of failure to comply with the Wills Act 1837 which requires testators to sign the Will in the presence of two witnesses present at the sometime, its considered view however that Will in the customary law of succession precludes as testator from making a written Will. 2.3.3. Post-Colonial Era In Nigeria; these different systems of law operate side by side. The consequence of this legal pluralism is the complex interplay between common law, statutes and customary law, which is some cases, had resulted in serious conflict of law issues domestically. Although, the effect of the legal pluralism is noticeable indifferent aspects of our law, it is however more evidently noticeable with regard to Will. In this regard, most times it is difficult to determine which of the three systems of laws is to be applied in a certain situation.

28

(1944) 7. NNLR 149

38

This explains why the English common law applies till this day in Nigeria, with some substantial modification by statutes Nigeria has had its own peculiar experience and circumstances, which have influenced its legal development. The laws governing succession in Nigeria can be divided into two broad categories namely testate and intestate and intestate succession. This classification can be further divided into intestate succession (Noncustomary) and succession under customary law. As the name implies, testate succession consists primarily of Wills. I Nigeria in no uniformly of applicable laws relating will. Consequently, among the states that were created out of former western region.29 The applicable law is the Wills law.30 By virtue of the provision of the Applicable laws Edict of 1972 31 Lagos state adopted the Western Nigerian Law. On the other hand, the rest of the country 32 consisting of the of the states from Northern and the Eastern part, still applies the English Wills Act 1837 and the Wills Amendment Act 185233.

29 30

Oyo, Ondo, Ogun, Osun, Ekiti, Edo and Delta States. Cap 133, laws of Western Nigeria 1959. 31 Noll of 1972 32 With the exception of some few states that have enacted their own Wills Laws in line the laws of Western Nig. 1959 33 This statute qualifies as statute of general application is Nigeria.

39

A critical analysis of the provision of the Wills Law shows that the legislation basically re-enacted the provisions of the Wills Act 1837 and the Wills Amendment Act 1852 together with the provision of the Wills (Soldiers and Sailor) Act 1918, but with inclusion of some provisions that took into consideration the prevailing customary laws principles that regular succession under customary law in the affected state. For examples, section 3 (1) of the Wills law of Bendel state, provides that real and personal estate, which cannot be affected by testamentary disposition under customary law, cannot be disposed of by Will.34 Also, section 15 of the Will law of Bendel state provides that every will made by a man or woman. Shall be revoked. By his/her subsequent marriage. However, the Wills Law exempt a marriage in accordance with customary law from having this effect. Finally; in determining what system of law governs a will, the courts place much importance on the intention of the testator. Thus in APATIRA v. AKANDE, 35 The fact that the testator devised all his property as against one-third as prescribed in Islamic law, was a major factor in the courts determination that English law govern, for this

34

Idehen v. Idehen (1991) 6 NWLRP. 259 and lawal-Osula v. Lawal Osula (1995) 9 NWLR. (pt.419) p. 259 where the supreme court. Discussed extensively the legal implication of the provisions of section 3 (1)s of the Will law of Bendenl state applicable to Edo state 35 (1944) 17 NLR 149

40

was a clear indication of the intention of the testator. Also in NWABUOKssU v. OTTIH.36 The Supreme Court held that if a written document is only intended as evidence of an agreement which had already been concluded in accordance with customary law; such a document will not be governed by English law. However, it is clear from judicial decision that a written will raises an almost irrefutable presumption that English law is to be applied.37 It is necessary to examine the laws that govern Wills in Nigeria a) The Wills Act of 1837 and Wills (Amendment) Act 1852: these are clearly statutes of general application which were in force in England on January 1 st 1900. They therefore part of Nigerias law of Wills. b) The Wills law of various state: Most state of the federation have re-enacted the received Will Act of 1837 with modifications and alteration. Example of such state are Kaduna state Wills law cap 163 laws of Kaduna 1991, Will law Lagos states cap 194 laws of the Lagos state 1994.

36 37

(1961) I AII NLR 487. Saga, I.C; Op. cit 125

41

c)

High court (civil procedure) rules of various states of the Federation which are civil rules of state High court governing procedures of the Wills Act 1837 and. The law of various of the Federation constitutes a source of Wills law.

d) 2.4

Customary law and Islamic law are also sources of Nigerian Wills law. The Kaduna State Wills Law

Since Kaduna State has enacted its own Wills Law, The Wills Act (1837) is no longer applicable. The Kaduna state Will law restricts the testamentary freedom of a testator in four major ways. First, the testator cannot dispose of any property which he had no power to dispose of by Will under customary and Islamic Law (section 4 (i)). Second, he must have made reasonable financial provisions for his family and dependants, failure of which they can apply to the court for an order (section 5 (1)). Third, a marriage under the marriage Act automatically revokes Wills made before then unless the Will was made in contemplation of the celebration of that marriage (section 14). Finally, a testator cannot make valid bequests to attesting witnesses or their spouses (section 11. ROSS v. COUNTESS. It is apparent that the provisions of the Kaduna Will
42

law brought the provision of the Wills Act to be more in tune with Islamic law of testate succession as far as testamentary freedom is concerned. In fact, even though it is a statutory and superior law, kit subjects itself too Islamic law of testate succession in its section 4 and goes further to enact the spirit of Islamic law intestate succession in section 5. This it did by codifying the need for the testator to make provisions for those near-related38, also small Wood, small Wood v. st martins Bank Ltd.39 This is quite commendable. According to Obilade (1985), Onokha (2005), and Made ct al. (2000), testate successions in Nigeria in governed by both customary (Including Islamic) law and statutory (English) law. The Islamic law of succession and the Wills law are two bodies of laws, which have evolved from radically different backgrounds. Islamic law of succession is based on the divine and universal principles of the Sharia, which govern Muslims all over the world (coulson 1971, Schacht 1979, Esposito 1991, and orire 2007)40. The Wills law evolved from the English Will Act, 1837, which is a statute of Christian religion (Imhano be 2002,41 Maliki 2005,42 Gurin 200843)

38 39

Gurin A.M (2008). An Introduction of Islamic law of Succession Testate /Intestate Zaria: Jodda press Ltd (1951) CH 369 40 Esposito J.L (1991) Islam: the Straight path. Oxford: Oxford University press 41 Imhanobe S.D (2002). Legal Drafting and Conveyance. Abuja: Secure Titles Publisher

43

For Instance, in Kaduna State where two radically different laws operate side by side and citizen are given the freedom to choose under which one they want their lives to be regulated (expressly or Impliedly) it is minevitable that situations of conflict of interpretation Will arise in applying the laws (Obilade, 1985, Ikejjiani-clarke, 2009, and balogun, 2011). The two laws may be compared at six levels viz: validity of Wills testamentary intention and capacity, limits to testamentary freedom, alteration and revocation of Wills, laps of gift, and conflict between the laws. Regarding validity, section 7 of the Kaduna State Wills law categorically states that for a Will to be valid, it must be in writing, it must be signed by the testator, in the presence of two or more witness and the witness must attests and subscribe the Will in the presence of the testator, the object of the section according to Gurin (2008) is clearly to prevent fraud. It must be stressed, however, that applies only to Wills made in accordance with English law. A will executed according to Islamic law need not comply with the provision above. Finally; Wills as it today under the Kaduna State was unknown and completely absent However, there have always been semblance of Will, although nuncupative.
42

Maliki A.S (2005). A Comparative Appraisal of Islamic and Statutory Laws on the Devolution of Property after Death Zaria. An Unpublished L.L.B. submitted to the faculty of Law, Ahmadu Bello University, Zaria. 43 Gurin A.M. (2008). An Introduction to Islamic Law of Succession: Zaria: Jodda Press Ltd.

44

The devolution of estate by Will is a principle recognized by our customary law. It was an oral declaration made voluntarily by the testator during his life time. It was a common incidence of Death-Bed Declaration such declaration which are normally viva-voce was made was made by aged, person in their dying moment, while frail sick and assured of death, insist on seeing selected groups of person most often family members or close friend whereby they make a few disclosure concerning life, wealth, obligation, which as burial rite. To ensure these wishes are effected curse is placed upon disobedience by deviant. That such wishes are not reduced into writing let alone duly executed such declarations have the force of a Will. 2.5 LEGAL TERMINOLOGIES IN A WILL

There are certain legal terminologies that are commonly used in a will. Some of them have featured already, at the course of our discourse. They include the following:
1. Testator. One who makes or has made a testament or will; one who dies

leaving a will. Usually, it applies when a man makes a will."

2. Testatrix. A woman who makes a will; a woman who died leaving a will; a

female testator in short."

45

3. Executor. A man appointed by the testator to carry out the directions and

requests in his will, and to dispose of the property according to his testament provisions after his death."
4. Executrix. A woman appointed by the testator to administer his Estate upon

his death. A female Executor."

5. Beneficiary. One who derives benefits under a will. In him resides the

equitable interest in devised property. Legatee, that is.

6. Trustee. One in whom an estate, interest, or power is vested, under an

express or implied agreement to administer or exercise it for the benefits or to the use of another. One who holds the legal title to property "in trust" for the benefit of another person called the beneficiary and who must carry out specific duties with regard to the property".
7. Estate. The total of assets and liabilities of the testator including all manners

of property, real and personal, Choate or inchoate, corporeal or incorporeal."

8. Legacy. Is a gift by will of personal property. 9. Legal representative. A person who oversees the legal affairs of another. It is

always held to be synonymous with "personal representative". It includes the

46

executor or administrator of an estate and a court appointed guardian of a minor or an incompetent person."
10. Administrator (trix). A person appointed by the court to administer - manage

or take charge of the assets and liabilities of a deceased person. Such a person may be a male (in which case he is called administrator) or a female (administratrtx)".

47

CHAPTER THREE FORMAL REQUIREMENT OF VALID WILL 3.1 Introduction

A will is only valid if it meets the requirements set out in the Wills legislation in the province or territory in which the testator lives. Generally, the formalities include dating the Will and having (The testator) sign in the presence of two witnesses, who should not be beneficiaries under the Will. The witnesses must also sign the document in the presence of the Testator and each other. Insistence on strict compliance with formal requirements of a will arises from the need to safeguard the will against fraud. The formal validity of a will is with regard to immovables governed by the lex situs and the case of movables governed by the law of the domicile of the testator at the time of his death.1 3.2 FORMAL REQIUREMENTS OF A VALID WILL UNDER WILLS ACT 1837

Section 9 of the Wills Act 1837 states that a Will must be in writing No Will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned; (that is to
1

Sagay I.E; Nigerian law of succession, Principle case, statutes and commentaries; Mathuse press Ltd (Nig) Lagos, (2008) p. 132.

48

say) it shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction; and such signature shall be made or acknowledged by the testator in the presence of two or more witness present at the same time, and such witnesses, but no form of attest and shall subscribe the Will in the presence of the testator, but no form of attestation shall be necessary.2 It means that any Will which is not in writing is invalid. These are exceptions to this rule. It would appear that members of the force in Actual military service and mariners at sea need not comply with the requirement writing. It would seem also that Wills emanating from all the states constituting the old western region need not be in writing by virtue of section 9(2) of the Wills law 1958 of western region. However, since the Armed forces and perhaps, marine matters are with the exclusive list, if would seem that the Wills of Armed forces personal must be in writing. Section 27(1) of the Armed forces Act, 2004 states A Will made by a person subject to law under the Decree shall be valid for disposing of any money or personal property which is due or belongs to him at his demise if it is in writing.

Wills Act, 1837.

49

There is a conflict in Nigeria In the application of the law that certain Wills do not have to comply with the requirement of writing. The English Wills Act 1837 Will apply to the state that do not have their own Wills laws, Lagos, Oyo, and other State, forming part of the old western region, do not require the Wills of member of the Armed forces in Actual military service and mariners at sea to be in writing, and yet, the provision of the constitution3 appears superior. The implication in Nigeria therefore appears to be that Wills of members of the Armed forces in Actual military service and mariners at sea must be in writing.4 Writing in context of a Will has been construed to be any type of writing or print. A Will may be writing on any materials; it may be type, printed or lithographed, and according to a learned author, either in whole or in part,5 typed or printed parts of a Will may be completed or complemented with ordinary writing,6 either in into or pencil.7 For instance in England standard Wills in printed form can be purchased from the stationers and the testator may fill the blank spaces according to his wishes. The writing or printing need not be continuous as may be observed from preprinted Wills.

3 4

199 constitution of the federal Republic of Nigeria. Animagham and Oyeneyin: Law of Succession, Wills and probate. 5 th Williams on Wills 9 Edition (2008) at p.75. 6 Smithers, Re Watts v. Smithers (1939) ch. 1015 at pg. 1020. 7 In the Goods of Adams (1872) L.R.2 po and D 367.

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The Wills Act 1837 is an Act of the parliament of the United Kingdom that confirms the power of every adult to dispose of their real and personal property, whether they are the outright owner or a beneficiary under a trust, by will on their death.8 The Act extends to all testamentary dispositions or gifts, where a person makers a disposition of his property to take effect after his death, and which is in its own nature ambulatory and revocable during his life.9 Under ecclesiastical law, common law and equity, various customary rules have long existed for disposing of personal property by Will. However, the power to gift real property by Will had been first granted by the Statute of Wills (1540). Various rules sprang from the formalities necessary to create a valid will and the statute of frauds (1677) created the requirement that a will of real ,property must be in writing. 10 By the early nineteenth century, the rules had become complex, with different rules for formalizing wills of real and personal property. The 4th report of the commissioners for inquiring into the Law of Real property recommended a simplified and unified scheme. As the commissioners for observed Any scrap of paper, or memorandum in ink or in pencil, mentioning an intended disposition disposition of his property, is
8 9

S.3 of Wills Act, 1837. Jarman, T. (1844). London: A treatise on Wills, Sweet, (Google Books) Vol. 1, p.26 10 Mirow, M.C. (1994) Last Wills and testaments in England 1500-1800. In Vander indent, J. (ed.) Acts (a) cause de mort: Acts of tast Will, Brussels: De Buek Universite; pp 47-88

51

admitted as a Will and will be valid, although written by another person, and not real over to the testator, or even seen by him, if proved to be made in his lifetime according to his instructions A bill was introduced by the Attorney General sir John Comphell, one of the commissioners, in 1834 though it was delayed for want of parliamentary time11. The bill was introduced in the House of Lords by Lord Langdate.12 Though the requirement that a will be in writing stems from an attempt to frustrate fraud, an apparent exception to the requirements for the formal execution of the Act under section 9 of Wills Act, 1837, is a secret trust.13 A minor, a person under the age of 18, cannot make a valid will14 unless they are a member of the armed forces on active service or a mariner at sea.15 These provisions were clarified by the Wills (soldiers and Sailors) Act 1918. There is no requirement to publish a will.16 If any of the witness was, or subsequently becomes, incapable of

11 12

The times, march 12, 1836 p. 4, C01F. The times, march 12, 1835, p. 3, C01D 13 Wilde, D. (199). Secret and semi-secret trusts: justifying distinctions between the two conveyance and property Lawyer: sep-Oct, 366-378. 14 section 7 of Wills Act, 1837, 15 section 11 of Wills Act, 1837. 16 S.13 of Will Act 1837.

52

proving the will, that alone will not make it invalid.17 Alterations must be executed in the same manner as a will.18 3.3 Formalities of making a will under the Kaduna State Will Law

It is this writers view that, there are too many formalities involved in making a will under the Kaduna State Wills Law 1990. Apparently, the Government seeks to encourage citizens to make such Wills with much certainty. If this is the case, then the law should be reviewed to loosen the formalities involved. Although you can make a Will by himself, it is advisable to seek help from a solicitor. This Will save time and legal costs should it be necessary to prove, after ones death, the intention and mental capacity at the time the will was prepared and signed the Will. A well-drafted Will can also minimize potential disputes among family members and inheritors. In order to prepare a valid Will enforceable under the Kaduna State Wills Law, the following formalities must be observed

17 18

S. 14, Ibid. S 21, Ibid.

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3.3.1 Writing Generally, in order to be valid, every Will (except one made by a person in active military service) must be in writing. No special form or material is stipulate, although the forms and precedents utilize by legal practitioners have assumed a particular style and arrangement. For a Will to be valid under the Kaduna State law it must be in writing. This is the position of section 7(1) Kaduna State Wills Law. This section is to the effect that no Will shall be valid unless it is in writing and should be executed in the manner mentioned in the section. Although the law requires that a Will must be in writing and not oral, no form of writing on any special substance is prescribed. Any form of writing, printing and the like may be employed. No special form of words need be used. All that is required is an intelligible document. However, the established principle as to write Wills on durable paper which will stand the test of time. 3.3.2 Age Subject to section 9 of the Kaduna State Wills Law no Will made by any person under the age of 18 years shall be valid.19 Section 9 the Wills Law of Kaduna State exempt

19

Section 6 of the Kaduna State Wills Law.

54

soldier being in actual military service, a seaman, or manner or crew of commercial airline being at sea or in the air from the provision on the requirement of the testators age. Thus, these categories of persons may execute a privileged Will. A blind person, illiterate, deaf, and dumb are disable in the eye of the law and care should be taken when handling their cases. To be valid, a Will executed by a member of this class should be read to them to their understanding and approved before they sign it. 3.3.3 Due Execution Wills need to be prepared in accordance with some very strict technical rules in order to be valid. The rules are set out in section 7 of the Kaduna State Wills law 1990. The testator must either signs his Will in the presence of two or more witnesses or if. He has previously signed it he may acknowledged his signature in the presence of such witnesses. The acknowledgement is of the signature and not of the Will itself. It is held in the case of Keigwin v. Keigwin that it is not necessary that the witness should know that the document is a Will.20 Presence and Effect of Presence of Witness.

20

(1943) 3 Quit 603; 163 ER 841.

55

No Will shall be valid unless the testator makes or acknowledges the signature in the presence of at least two witnesses presence at the time.21 Meaning of presence. Although the Will law requires the testator to sign, or acknowledge his signature, in the presence of witness, and the witnesses to sign in presence of the testator, thus provision has been construct narrowly that it is now clear that the witnesses need not actually see the testator sign nor need he sees them sign. The test if whether the person in whose presence the signature is made could have been the other signing had he wished to do so, hence, if the testator is in a room and the witnesses are in another room, but there is no hole in the room them if the witnesses where they were standing in the room could have looked through the hole in the wall and seen the testator signing that is sufficient, if, however, the witnesses would have needed in order to see through the wall and there is no evidence that they did after their position, the attestation is bid. Casson v. Dade22 in 1781 a testatrix drove to her solicitors office to see sign a Will, she signed it but found the office locked and went outsider to sit in her carriage. When she was in the carriage, she could not in act see

21 22

Section 7(c) of the Kaduna State Wills law 1990. (1781) 28 ER 1010.

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the witnesses through the window of the office but at the very moment when the witnesses were signing the horses backed just so that there was a line of sight through the window of the carriage and the window of the office is such a way that she so wished the testatrix could have seen the witnesses signing. The attestation was held to be good. This and similar cases are clear examples of the extent to which the courts would go in order to save a Will if possible. Indeed, in Winchilsea v. Wauchope,23 it was held that where a line of sight. Exits, there is a presumption of good attestation of there is no evidence to the contrary. 3.3.4 Attestation An attestation is a declaration by a witness that an instrument has been executed in his or her presence according to the formalities required by law. It is not the same as an Acknowledgement, which is a statement by the maker of a document that verifies its authenticity. An attestation clause is frequently found in legal documents that must be witnessed if they are to be valid, for example, a will or a deed. It states that

23

(1686) freem. Ch. 95; 121

57

the instrument has been complete in the manner required by law in the presence of the witness who place his or her signature in the designated space. Before a Will can be admitted to probate the district judge or register must be satisfied that it was duly executed in accordance with the proper formalities. The attestation clause in a Will will raise the presumption that the Will was correctly executed where it recites that the formalities have been complied with. It is mandatory that both witnesses must attest in the presence of the testator. If for any reason both or either of the witnesses could not or did not, attest in the presence of the testator, the Will failed for ineffective execution / attestation. In George v. George24 one of the witnesses stated on both that she did not attest the Will in the presence of the testator, the Supreme Court refused to grand probate thereof. Whilst it is compulsory that witnesses must attest in the presence of the testator, these is no mandatory legal requirement that the witnesses must attest in the presence of each other. Let us assume, for example, that a testator T signed his Will in the presence of two witnesses, W1 and W2 just as W1 was attesting in the presence of T, W2 was

24

(1964) 2F.S.C.88

58

suddenly summoned in emergency to see to his young son. He left the scene; thirty minutes later, he came back and attested in the presence of T, although W1 was not around. This situation is perfectly valid, in law. The requirement of the law is that both witnesses must attest in the presence of the testator. They are not legally required to attest jointly in the presence of the testator, although in practice, is desirable to do jointly. Any Will drafted by a lawyer will almost show that attestation was jointly done in the presence of the testator and in the presence of each other 25 Who can witness a Will? Any adult who can see and testify to the fact of execution either by the testator himself or by some other person in his presence and direction or by the acknowledgement of his signature can be a witness. Most people will qualify under this umbrella definition. However, it does seem that a blind person cannot witness a Will. In the Estate of Gibson,26 a second codicil was signed in 1943 by the deceased in the presence of Fred James, then managing clerk of a firm of solicitor, and his wife. Mr. James was totally-blind butt had known the deceased personally since 1932 and he
25 26

Abayomi, K. op. cit at 52. (1949) 2 AllE.R.90.

59

knew him quite well by his voice. The question was raised whether the second codicil had duly executed in view of the total blindness of one of the witnesses. Pearce J. said that the normal meaning of attesting is testifying or bearing witness to something, and the normal meaning of witness is one who is a spectator of an incident or one who is present at an incident. He asks: Is mere presence without the faculty of sight enough to constitute a witness for the purpose of S.9 of the 1837 Act? Is an act which the witness cannot see done in his presence? His lordship concluded and held that when one of the witnesses is blind, the Will has not been signed in his presence and he is not able to attest it.27 Witnessing a Will is not just a mere formality. It is one of the strictest requirements of the law. A witness must be able to come out boldly without fear or favour to say I saw the testator perform the act of execution. He must be an independent person who has no interest one way or the other in the Will and any dispositions or directive made therein. To give efficacy to this independence, the law stipulates neither a

27

see the dictum-To attest is to bear witness to a fact- of Sir H. Henner Furst in Hudson v. Parker (1844) lRob Exi.14; vol. 164 E.R.948.

60

beneficiary nor his spouse can take under any Will witnessed by him.28 The benefit is null and void and of no effect, although the attestation is valid and the Will is not thereby rendered invalid. The benefit is lost even though there were two other witnesses, thus rendering the witness beneficiarys signature superfluous. One of the leading authorities on this point is the case Rand field v. Rand field.29 But it does appear however that in Kaduna, Lagos, and Oyo State, such beneficiary s attestation shall be disregarded if the Will could be duty executed without it.30 The rule applying to the gifts given to attesting beneficiaries and their spouses has no application to the following cases: (i) Where no witnesses at all are necessary, for the validity of the Will. For example the Will of a soldier in actual military service.31 (ii) Where the witness signs the Will not as a witness but merely to show that he agrees with the contents of the Will.

28

S. 11 Wills Edict 1990 of Kaduna, S.10 Will Edict 1990 of Lagos State and the provision to S.10 Wills Edict. 1990 of Oyo State. 29 (1863) 32 L.J.Ch. 668. 30 The provision to S.8 Wills Law 1990 of Kaduna State and S.8 of Lagos State out proviso to S.10 Will Edict 1990 of Oyo State 31 Re Limond (1915) 2 Ch. 210

61

(iii)

A beneficiary who marries a witness after the date of the Will is not precluded from taking his / her gift. The case throrpe v. Bestwick32 is often cited in support.

(iv)

Where gift are given to trustees as trustees and not as beneficiaries. This is because trustees do not personally benefit from their trusts.

(v)

Where the gift is made or confirmed by another Will or codicil not attested by the beneficiary.

An attestation clause is usually is not required for a Will to be valid, but in some states. It is evidence that the statements made in the attestation are true. 3.3.5 Restrictions on Freedom to make a Will No doubt a person has the unlimited power to dispose of his legal property inter vivos in any way or manner he chooses. He may decide to give out everything he owed to total strangers or friends at the expense of his wife, Children, Mothers, Brothers, Sisters or relations and nobody can question that. Upon his death, the law tends to limit this freedom! Various reasons ranging from social responsibility, legal, tradition or custom religion have been put forward in justifying this restriction. Is it,
32

(1881) 6 Q.B.D.311.

62

therefore, justified to limit the testament freedom of a testator? I think not. Wills take various forms but we will limit our discourse on the Statutory Will. Section 4(1) of the Kaduna State Will Law provides that: It shall be lawful for every person to bequeath of dispose of, by his Will executed in accordance. With the provision this Edict, all property to which he is entitled, either in law or in equity at the time of his death. Provided that the provisions of this Edict Shall not apply: (a) To any property which the testator had no power to dispose of by will or otherwise under customary law to which he was subject. (b) To the Will of a person who immediately before his death was subject to Islam Law. In England, testamentary freedom is in theory unrestricted, that is the testator is allowed complete freedom to dispose his property in anyway and manner he chooses. Section 3 of the Wills Act grants the testator this unrestricted power of testation. The section provides that: it shall be lawful for every person to devise

63

bequeath or dispose of, by his Will, executed in the manner 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 As time went on, this absolute freedom by the Act to the testator started resulting in the disinheritance of the testators dependents by the testator in his Will. Arguments and debates started on whether it was right to allow this absolute freedom or whether it was right to restrict testamentary freedom in any way. One school of thought is of the view that a person should be able to bequeath his property exactly as he wishes, and that it is no business of the state or anyone else to permit or encourage interference in his private arrangements. The other schools contend that within a family in particular, there is not necessarily any merit in where the technical ownership of property falls. That it is the business of the law to uphold and enforce obligations such as those providing financial support for ones dependents. In the not unheard of situation of husband who does leave his widow without support, there is also the consideration that she must be provided for from some resource, and if those do not come from his estate, then that may well have to come from the general tax payer.

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But for three reasons and in view of the provision section 4(1) of the Kaduna State Wills law a Nigerian testator cannot have an unrestricted direction. These reasons are: (a) (b) (c) Incidence of customary law Religious reasons Common law prohibits alienation of land subject to customary law by any one. The first part deals with issue of customary law i.e. property that is subject to a rule of customary law. For instance, it was held in AGIDIGBI v. AGIDIGI 33 that under Benin nature law and custom, the eldest son of the deceased person or testator is entitled to inherit without question The house known as Igiogbe in which the testator lived and died. Thus a testator cannot validly dispose of the Idiogbe by his will except to his eldest surviving male child. Any devise of the Igiogbe to any other person is void. It was also held in

33

(1996) 6 NWLR part 454 p. 300

65

OGBAHON v. REG.TRUSTEE34 that judicial notice has been taken of the prime position which the eldest male child takes in the question of inheritance under Benin nature law and custom especially as it concerns the devolution of the Igiogbe on him. The second reason relates to religious restrictions. The question whether a Moslems testamentary power under the statute is limited by prescriptions of Moslem law was raised in the case of ADESUBOKAN v. YINUSA35. It was held in this case that though a Moslem is entitled to make a Will under the Wills Act 1837 he has no right deprive by such Will any of his heirs who are entitled to share his estate under Moslem law any of their respective shares granted them by Moslem law. The third limitation is an extension of section 4 (1) a. The proviso is enough to prohibit individuals from alienating family or common property by will. In Nigeria, the testators testamentary freedom is both restricted and unrestricted depending on the state. The English Wills Act of 1937 is applicable to the northern and western states, including Anambra and Rivers states. These states copied section 3 (1) of the Wills act 1837. In Kaduna state for succession (Estate of the Deceased
34 35

(2002) INWLR part 749 p. 675 (1971) IALL NLR 225; (1971) NNLR77

66

persons) law cap 163 laws of Kaduna state of Nigeria, contains provision similar to section 3(1) of the Wills Act 1837. It provides in section 137 (1) as follows: Subject to this part, it shall be lawful for any person to devise, bequeath, or otherwise dispose of any disposable property which he shall be entitled to at the time of his death, or any thereof, by a will made in writing and executed in manner hereinafter prescribed. A will made and executed in such manner shall be valid and binding on the estate of the testator. The practical effect of the above provision is absolute freedom on the testator to dispose of his property in the way and manner and to whom he chooses. Section 138(1) of the law further buttress this point The section is to the effect that the testator can dispose all his property by will. Statutes conferring restrictions or limitation on testamentary freedom can be seen in our jurisdiction under two different regimes namely the Western Region Wills law of 1959 and the Wills law of Lagos State Cap W2 laws of Lagos state 2004 and also the Wills law of Kaduna State cap 163 laws of Lagos state 1990. The Wills law of the old Western Region of Nigeria was first passed as Western Region law No. 28 1958, and subsequently appeared as cap 113, Laws of the Western Region of Nigeria 1959. Following the breakup of the region into states, each state has had to enact the provisions of cap 113 as their
67

respective laws. Section 3(1) of the Wills law cap 113 laws of the Western Region of Nigeria vol. vi 1959 which is the same as the various Wills law of the states comprising the former Eastern Region except Oyo, Lagos and Kaduna states provide thus: Subject to any customary law relating thereto, it shall be lawful for every person to devise, bequeath or dispose of, by his will executed in manner hereinafter required, all real estate and all personal estate which he shall be entitled to, either in law or in equity, at the time of his death and which if not so devised, bequeath and dispose of would devolve upon the heir at law of him, or if he become entitled by descent, or his ancestor or upon his executor or administrator. But for the phase subject to any customary law relating thereto, This section is similar to section 3(1) Wills Act 1837. The above provision places a significant bar or limitation on the power to bequeath property which is subject to customary law. In Oke v. Oke, the Supreme Court held the devise of a house subject to customary law by a testator to a person not entitled to it under customary law was ineffective. Section 5(1), which is similar to the English inheritance (provision for family and Dependant) Act 1975 earlier mentioned, allows the wife or wives or husband, child or children of the deceased testator to apply to the court for an order on the decease estate effected by will is not such as to make reasonable provision for the
68

applicant. It included wife or husband of the deceased, a child of the deceased, a parent, brother or sister of the deceased who, immediately before the death of the deceased was being maintained either wholly or partly by the deceased. Where such categories of persons successfully apply to the court, surely, the tetstators Will be altered so as to make provisions for such applicant. Some of the leading cases that have emanated as a result of this restriction include Ogiamien, v. Ogiamen,36 Idehen, Osula v. Osula.37 In Idehen v. Idehen, which had its origin in Benin had to do with Igiogbe and the interpretation of the phase subject to any customary law relating thereto contain in section 3(1) of the Wills law of Bendel State 1976, the Supreme Court held among others, that the opening words of section 3(1) Wills law to wit subject to any customary law relating thereto. That the expression controls and governs the whole provisions of section 3(1), which includes testamentary capacity (freedom). In essence though the will was valid, the devise of the Igiogbe to the deceased, first son was null and void. The summary of the entire decision is that the wish of the testator to pass on his Igiogbe to his first son was invalid and void.

36 37

(1967) IALLN.L.R. 1991 (1995) 9 NWLR pt 419 page 259.

69

Is it, therefore, right to deny a man the freedom to dispose of his property in the way and matter he chooses? If he had that freedom while alive, there is no reason why he will be define that right at death, after all the property is his and he labored to acquire it under the Bini customary law, as we have seen, the testator cannot dispose of his Igiogbe to any other person other than his eldest surviving son. Why command a person to bequeath his property to a particular person when in actual fact the testator in his life time will not have given such property inter vivos to the child? This types of restriction has brought so much litigation, family, friend and disharmony. In Idehen v. Idehen, it was a brother against a brother. In Jadesimki v. Okotie-Eboh,38 It was daughter against Mother and brother while Oke v. Oke, it was between two brothers. This unhappy trend of fighting over property of deceased diligent and hardworking testator by Idlers, alayes and good. For-nothing children is a result of restrictions put by het statutes and customs. Concerning the unhappy trend in fighting over property by the testators family, Kolawole JCA in Dan-Jumbo39 stated thus: this is an unhappy case in many respects. When members of the same family dispute the validity or the due execution of will

38 39

(1996) 2 NWLR (pt. 429) (1989) 5 NWLR 33.

70

allegedly made by the testator, the outcome invariably is external rancor of disintegration of, or enmity in the family. But the courts have a duty imposed upon him by law to settle all disputes between all manners of people who approach the court for the resolution of their dispute regardless of blood affinity. After all, while alive the testator can make a gift of his property to whosoever he desires, why cant he do same in death? With this restriction on testamentary freedom, one other thing that is certain is that people, especially the educated, middle class, might grow weary of making wills which they may now see as an exercise in futility. The case of Osula v. Osula,40 readily comes to mind. It will be recalled that the testator specifically stated in his will Thus: I declare that I make the above devise and bequest. When I am quite same and well. It is my will that nobody shall modify or vary this will. It is my will that the native law and custom of Benin shall not apply to after or modify this my will. Despite this clause in the testators will, the Supreme Court still held the devise to be contrary to the Bini Customary Law on Igiogbe. In the circumstances, I am of the

40

(1995) 9 NWLR pt.419, p.259.

71

repeal of the various provisions in the West and mid-Western States, which subjects testamentary disposition to customary law. It is very unhealthy and inconsistent with the philosophy of the concept of will. Such custom of Igiogbe, promotes laziness in the eldest son and make him to wish their father dead were the Father to be very wealthy, so that he can inherit his Igiogbe. On a final note, a Will should be allowed to speak in the way it was made and should not be modified suit imaginary intention of the testator. A Will is the wish or desire of a testator on how his property should be distributed upon his death! It should remain so.41

41

Obiora A.E., Limits f a testator on freedm of will testament. (2013) http://www.nigerianlawguru.com. 2 April 2012.

nd

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CHAPTER FOUR ESSENTIAL REQUIREMENTS 4.1 Introduction

For a Will to be legally binding a number of requirements must be met. The requirements are complex and legal advice should always be sought before making a Will. The reason for this is that if the requirements are not met the Will is likely to be rendered invalid, which could result in the deceaseds assets being distributed other that in accordance with his or her wishes. This chapter does not intend to be substitute for legal advice but rather sets out what the essential requirements of a legally binding will are : purposefully this chapter is to limit the question of testamentary capacity to the matter of the mind of the testator; as certain the types or quality of mind that can legally dispose of property by Will, the period during the testamentary process when the mind should possess the quality thus ascertained; the behavioral pattern that can sustain the quality and the manner in which this can be property put and received by the court and the effect of unsoundness of mind on dispositions made.

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4.2

Testamentary Capacity

Testamentary capacity refers to having the mental competency to execute a Will at the time the Will was signed and witnessed. To have testamentary capacity the author of the must understand the nature of making on Will, have a general idea of what he / she possesses, and know who are members of the immediate family or other natural objects of his/her bounty.1 Testamentary capacity simpliciter connotes many things to many people. Simply put, it means the capacity to make a testament that is a Will. Statutes may delimit the extent of capacity.2 For instance, section 4(1) Kaduna state Wills law 1990 state: It shall be lawful for every person to bequeath or dispose of by his Will executed in accordance with the provision of this edict all property to, which he is entitled either in law or in equity at the time of his death.3 In Oyo State, a person who before his death was subject to Islamic law is denied testamentary capacity under the Wills law of the State.4

Gerald N. Hill and Kath leen T, Hill. Legal Dictionary: Testamentary Capacity (1981-2005). http:llwww. The th freedictionary.com. 27 march 2013 2 Abayomi, K. Wills law and practice Mbetth and Associate (Nig) Ltd, Lagos (2004) p. 71 3 Section 4(1) Kaduna State Wills law, 1990 4 Section 3(1) of the Will law of Oyo State

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Statutes can extent capacity where none would have been available. A seaman or soldier in Actual military service may make a Will even though he is a minor, and such Will, need not comply with the rigorous formalities prescribed by law.5 The general law that is common law and equity may affect the testamentary capacity of the testator. He lacks capacity to dispose of his property at the time when he does not possess sound disposing mind or where he has been coerced and overpowered to make disposition he would not otherwise have made. It is obvious from the above that the term testamentary capacity is generic and appears to cover general capacity to make a Will, so, if the testator lacks capacity of his mind or other infirmly or for non-compliance with the law under which his Will is made, he is described simpliciter as not possessing necessary testamentary capacity.6 No wonder therefore, writers, the courts and Judges use the term testamentary capacity indiscriminately.7 It has however been suggested that aside from

Section 8 Will Edict Oyo; section 6 Wills Edict Lagos; section 9 Wills law Western Region. And section / Wills Act 1837. 6 Abayomi K. Op. cit p. 72 7 Idehen v. Idehen (1991) 6 NINLR (pt-198) 382, 421, Lawal Osula (1993) 2 NWLR pt 274) 157

75

testamentary capacity, there is also concept of testamentary power.8 The logic in this suggestion seems to be that to all intents and purposes you may have full testamentary capacity but because the law restricts your ability to dispose of all or some of your property. You may therefore lack the necessary testamentary capacity. For clarity and case of reference, the generic term testamentary capacity may be linked with the specific cause of capacity or incapacity. For instance, a testator may be said to lack testamentary capacity because at the time he made his Will he did not have requisite memory and understanding otherwise known as sound disposing mind, or that he lacked capacity because he purported to dispose property subject to customary law which he could not touch by law.9 Until fairly recently, there was a complete freedom of testamentary power in Nigeria. In other words, a testator was absolutely free to dispose of all of his property in any manner he wished. This had been criticized in several quarters on many grounds. It was said that an irresponsible testator or one subject to wrong pressures or influences could disinherit all his dependents and relations in favour of strangers. The Muslims are particularly critical of the fact that this power enabled a
8

Nwabueze B: power of testamentary Disposition in Bendel and Western State of Nigeria (1991) J.N.S. vol. l No 1122. G. Abayomi K. op. cit p. 72 9 Abayomi K. Op. cit p. 72

76

Muslim to dispose of property in his will in a manner contrary to Islamic law.10 There is some validity in the argument that the courts should have discretion to vary the dispositions in a will in order to ameliorate any cases of blatant injustice or neglect of persons towards whom the testator had moral or legal responsibility. 4.3 Sound Disposing Mind

Sound Disposing Mind refers to the mental ability to understand in general what one possesses and the persons who are the natural objects of bounty (wife and / or children), at the time of making a will.11 For a testator to have sound disposing mind, three things must exist at one and the same time namely: i. The testator must understand that he is giving his property to one or more objects of his regard. ii. He must understand and recollect the extent of his property.

10

For a trenchant criticism of uncontrolled freedom of testamentar y power: M.O. Adesanya, A case for the Restraint of Testamentary power in Nigeria vol.5 Nos. 1& 2, Dec.1974, Nig. J. of contemp. 11 Gerald N. Hill and Kathleen T. Hill op. cit.

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Iii.

He must also understand the nature and extent of the claim upon him both of those whom he is including in his Will and those who he is excluding from his Will.12

The testator must understand the nature of the Act he is performing and its effect. No disorder of mind shall influence his Will in disposing of his property and bring about a disposal of which if the mind had been sound would not have been made.13 The question then is, what situation can deprive a testator of a sound disposing mind? It does seem that if the human instincts and affections or the moral sense become perverted by mental disease; it insane suspicion or aversion takes the place of natural affection; if reason and judgement are lost and the mind becomes prone to insane delusion calculated to interfere with and disturb its functions and lead to testamentary dispositions due only to their baneful influence. In any of these cases or a combination of any them, the testator loses capacity and does not possess the power to dispose of his property by Will. Indeed any Will made under these conditions ought not to stand.14

12 13

Williams on Wills 5 Ed op. cit p 25. Banks v. Good fellow (1870) L.R.S. QB549 per (oekbburn C) at p. S65. 14 Supra.

th

78

A simple statement of the essentials of sound disposing mind can be found in the very early case of Morquess v. Winchester15 therein, it was stated that: It is not sufficient that the testator be of memory when he makes his Will to answer familiar and unusual question but he ought to have a disposing memory so that he is able to make a disposition of his land with understanding and reason. It is against the criteria described above that a Will must be upheld or dismissed if it was alleged that the maker lacked sound disposing mind. In Banks v. Good fellow, the testator suffered from two delusions which disturbed his mind; i. ii. that he was pursued by spirits, and that a man, since dead, came personally to molest him.

But neither of these delusions had or could have had any influence upon him in disposing of his property. The jury found and their findings were supported by the court, that irrespective of the questions of these dormant delusions, the testator was in possession of his faculties when the Will was executed. It did not matter that he did benefit his heir at law who would have been the objects of his bounty had he
15

Marquess v Winchesters case (1958) 6 co. Rep. 23.

79

died intestate. The Will was held to be rational regardless, even though it was made in favour of a niece who lived with him and who was the object of his regard. The case of Federal Administrator-General v. Johnson16 is illustrative of how the courts go about deciding available Acts sometimes quite contradictory, which Acts sustain capacity and which do not. The testator was about 70 years old who, at the maternal time he executed his Will dated 16th July, 1959, was very ill to chronic condition of retention of urine which poisoned his stream. The testator attended. To the 16th of July, 1959. The doctor who saw him was of the opinion that he should be executed. But the testator refused admission on that date but instead executed his Will. He came back from the hospital for admission on the 20th July and signed a consent form for the operation to be performed on his Plaintiff was named as executor in the Will. The defendants were two of the testators children who opposed the grant of probate on the grounds, inter alia, that

16

(1960) L.L.R. 29)

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the testator lacked testamentary capacity that is he was not of sound mind, memory and understanding at the time he executed his Will. At the trial, the Will was tendered and the attesting witnesses gave evidence that they were required by the testator to witness the execution of his Will, that he executed the Will in their presence and in the presence of each other and that thereafter they signed in turn. They deposed to the fact that at the time of execution, the testator was quite normal. He spoke to them as he usually did and that as far as they were concerned there appeared to be nothing wrong with his mental condition. For the defense, the medical doctor who examined and admitted the testator on 20 th July, 1959 testifies. He thought that the testator was rather serile for his age. The witness under courses-examination could not say for sure whether he was in a position to make a Will at the time he was said to have made the Will, but that his judgment might not be accurate. The witness conceded that the patient / testator spoke to the doctor / witnesses himself normally and made his complaint himself. It was submitted for the defense;

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i)

That the 70 years old testator was very ill in consequence of chronic retention of urine which has poisoned his blood and this condition could have impaired his reasoning.

ii)

That his reasoning could have been impaired because out of four children only one of them a daughter was provided for under the Will.

The court held that the testator has necessary testamentary capacity. The reasoning of the court was impeachable. He refused admission on the 16 th of July, and executed his Will on the someday, he later went back to the hospital on the 20th, signed the consent form, complained about his ailment personally to the doctor. The court conceded that the testators physical condition deteriorate considerably but capacity in the contest of Will only require that the testator was able to understand the nature of the Act he was performing an appreciated the effect of the exercise of such Acts. The court also conceded that although he did not make any bequests in favour of his sons, he made adequate provision in the Will for the education of his grand children and grandchildren.

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Inconsistent conduct of an old man, discrepancies in his signature and the initials on the Will and disinheriting his eldest son may not be sufficient to sustain an allegation of lack of testamentary capacity.17 4.3.1 When Necessary

The primary and the ideal time for the testator to possess sound disposing mind is firstly, when he gave instructions and secondly when he executed the Will. A consistent Patten of life and behavior must exist so that any reasonable man Will readily infer that the testator has been a rational man doing what rational people generally do. Problem Will however set in if the law should insist that animus testandi should be present at the two crucial times. However, if it be shown that the testator had sound disposing mind when instructions were given, and that the Will was drawn up in accordance with those instruction, it would be sufficient that when he executed the Will, the testator was being asked to execute as his Will, a document drawn up in pursuance of those instructions. The authority usually cited for the rule is the case of

17

Williams and Murtimer, Executing Administrators & Probate (1970) p.40.

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Perara v. Perara.18 This rule may help those whose conditions of mind or body might have deteriorated since the possession of capacity, but who are still well enough to execute a document emanating from instructions earlier given. It does seem also that as long as the testator had the necessary mind when he gave his instructions for his Will, the Will would, nevertheless, be valid, even though the testator is unable later to remember instructions previously given and his signature has to be affixed by another person kin his presence and at his direction. Impetus was given to this rule by the case Parker v. Felgate.19 Testator executed her Will on 29th August, 1882 and died on 2nd September, 1882. The 28 year old lady becomes ill early in 1882 with Brights disease. She consulted her solicitor, a Mr. Parker as to making of her Will. Mr. Parker made copious notes, including alterations and amendments to earlier instructions. Testator left five hundred pounds, two hundred and fifty pounds to her brother and the residue of her estate to childrens Hospital in Great Ormong street, London Previously; she had advanced moneys to her father and mother to prevent their bankrupt. She directed that if the charity was unable to take, the residue should be distributed amongst her next of kin.

18 19

(1901) A.C.354 (1893) 8P and D 471.

84

Testator became very ill before the Will was finally prepared. This was compounded by the fact that her solicitor was away at his point in time on holiday but his partner prepared a Will from instructions derived from conversation with Mr. Parker and from a draft Will and draft bill of cost. Testator went into coma on the 26th. One of the doctors attending to her testified that the testator was capable of being roused and could speak and did talk about the Will. The coma went on the increase but still she could be roused to answer questions. On the day the Will was to be executed, testator opened her eyes, put out her hand and smiled when another doctor rustled the Will kin front of her face to rouse her. The doctor said: This is your Will do you wish this lady (a Mrs. Fleck) to sign it and she replied Yes Three people present testified to corroborate the doctors evidence. Held if a person has given instructions to a solicitor to make a Will and the solicitor prepared it in accordance with those instructions all that is necessary to make it a good Will if execute by the testator is that he should be able to think far.

85

I gave my solicitors instructions to prepare a Will making a certain disposition of my property. I have no doubt that he has given effect to my intention and I accept the document which is put before me as carrying it out. As elastic and sensible as this rule is, it may be abused by unscrupulous people. No wonder then that the privy council in the case of Singh v. Armichand,20 placed a caution on the rule in Parker v. Felgate by interpolating a gloss thereto. The Supreme Court of Fiji held that the Will was the product of a man so enfeebled by disease as to be without sound mind and memory at the time of execution and the disposition of his property under it was the of delusion touching his nephews existence and the Will was therefore invalid. Further, it was decided that the principal enunciated in Parker v. Felgate21 should be applied with the greatest caution and reserve when testator does not himself give instructions to the solicitor who testator does not himself give instructions to the solicitor who draws the Will but to a lay intermediary who repeats them to the solicitor. The court, before making any presumption in favour of validity, ought to be strictly satisfied that there is no ground for suspicion

20 21

(1948) A. C. 354 (1893) 8 P and D 471.

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and that the instructions given to the intermediary were unambiguous, clearly understood, faithfully reported by him and rightly apprehended by the solicitor. 4.3.2 Knowledge and Approval The gloss put on Parker v. Felgate by Singh v. Amirchand accentuates the requirement that the testator must have knowledge and approval of the contents of his Will. An intermediary who is not a lawyer may well doctor the Will which will not thereby represent the wishes and approval of the testator. The House of Lords in Wintte v. Nye22 Suggest as two significant features of the ruleknowledge and approval; thus: (i) That there are circumstances e.g. professional relationship kin which English Law places an exceptionally heavy burden on a party to establish knowledge and approval. (ii) In cases where the burden is imposed, the court is to be vigilant and jealous in scrutinizing all the circumstances.

22

(1951) 13 WACA 290

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The rule is evidential and not a rule of substantive law. It is only called in evidence when circumstances dictate. Indeed, the head note in the Nyes case suggests that the rule (knowledge and approval) is part of the law of evidence. Ordinary, the proof of due execution and that of sound disposing mind are sufficient to sustain knowledge and approval.23 The need to go further may arise, as for instance, if the person who prepared the Will is the sole and substantial beneficiary, in which case the court requires further affirmative evidence. Affirmative evidence of knowledge and approval is also required where the testator is deaf and dumb or blind. Scar man J. in the Estate of Fuld (Deceased) No. 3 says of the rule: In my opinion, the whole point of the rules is evidential; it is concerned with the approach required of the court to the evidence submitted for its consideration. In the ordinary case, proof of testamentary capacity and due execution suffice to establish knowledge and approval but in certain circumstance, the court is to require further affirmative evidence. The character of the rule as evidential emerges clearly from the speeches of viscount Simmonds and Lord Reid (1959) I All E.R.552 at p. 557, (viscout Simmonds) and pp. 560 and 561 (Lord Reid). Both their Lordships relied strongly on the classical statement of the rule to be found in the Judgment of
23

(1945) 3 W.W.R.81

88

Baron parles in Barry v. Butlins (1838) 2 moo. P.C.C. (480)24 4.3.3 Effect of Supervising Insanity A Will when the testator has sound supervising mind is not revoked or otherwise affected by supervening insanity or subsequent incapacity. This is supported by the case of in the Goods of Crandon, where, on 20th July, 1897 Miss Crandon made a will and appointed her sister sole executrix. The Wills was prepared by solicitor and was kept by the testator in tin boxes. In 1890, testator became of unsound mind and was confirm in an asylum. The Will was found missing after the testator death. Mr. Justice Barnes held that probate should be given to the draft Will.25 4.3.4. Period of Lucidity Period of lucidity is a temporary period of sanity: that period of time in which a normally insane or mentally unbalanced person is in control of faculties and can think atonally.26 In other facilitate the making of a Will, the law set a very low bar as far as testamentary capacity is concerned. The law presumes that a person is competent and it is generally necessary to rebut this presumption with expert
24 25

162 E.R. 621 Abayomi K. Op. cit p. 83 26 Gerald N. Hill and Ktthleen T. Hill op. cit.

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medical proof. Mental capacity is a relative thing; a person who is not competent enough to make a contract to buy or sell a real estate or, for example, a complex commercial teases, may be quite competent to make a Will. In other to make a will it is necessary to be lucid and oriented to ones surrounding. One needs to have an ability to comprehend the basic concept involved in the making of a will and to understand that he or she is executing a set of instructions for how to dispose of property at death. The question is how will the law treat the will of a testator known to be insane but which will was purportedly made during a period of lucidity. The test for all times is; had the testator the requisite sound disposing mind at the time the will was made? If the answer is in the affirmative, the will be head to be valid. All it means is that during a period of lucidity, an otherwise incapable testator may legally make a will. This rule of law is supported by the case Cartwright v. Cartwright.27 Testator who had been insane for some time started asking for paper, pen and ink with which to write. Her physician did not want her to write or read as any of this acts might aggravate her condition.

27

(1793) 1 Philim 90; vol. 161E .R. 923.

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Eventually, she was given these materials. She sat down and rote her testament in her own handwriting without the assistance of anyone. She sent away her attendants when she was writing the Will, although they were watching her from the adjoining room. Indeed one of the attesting witness having described how she request for writing materials went on to state, that she was behaving rather strangely-writing pages, destroying same in the fire grate, walking up and down and muttering to herself until eventually finished what she wrote. The question is how does one prove lucid interval? Must the period be one hour, two hours, days or week? The court seemed to be of the view that if a rational act was performed unaided, that could be said to be a period of lucidity. The court in Cartwrights case, was of the opinion that the testatrix, by writing the Will herself, had most plainly shown she had a full and complete capacity to understand what was the state of her affairs and her relations and to give what was proper in the way she had done she not only formed the plan but also pursued and carried it into execution with property and without assistance. 28

28

Abayomi K. op. cit p. 84

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4.4.

Recovery After Incapacity

It is possible for an incapacitated patient to recover wholly or partially from his malady. The question then is what effect if any has such recovery on the Will made during incapacity? The law is that recovery cannot validate a Will made when the testator had no sound disposing mind. Thomas Trevor C.J. in Arthur v. Bokenham29 puts the matter succinctly when he says: If a man be non-compose, and not in the right senses at the time of making his Will, though he become a man of understanding and sound judgment and memory, yet the Will is a void. Will by no means made good; because he wanted the disposing power at the time of disposition which was the time of making the Will30 4.5. Presumption of sound Disposing Mind

The law presumes that a testator has had possesses sound disposing mind at the time the Will was made.31 The courts altitude in this respect is fair and logical, otherwise the propounded of a Will will always and as a matter of court, have to

29 30

11 Mod Rep 148. Ibid, at p. 157 31 Wellesly v. Vere (1841) 2 curt. 917

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prove to the court that the testator was of sound mind and not insane when he made the Will and only then will the court grant probate. However, if the question of the sanity of the testator is in issue and contested, the onus is on the person propounding the will to prove that the testator had sound disposing mind at the time the will was made.32 The onus for relying or the presumption is a fairly light one can be discharged by tendering the Will and seeking to show that: (i) (ii) it is not irrational on its, and it is duly executed.

The onus shifts and those who have put the mind and sanity of the testator in issue will have to adduce evidence in support, otherwise, the Court will grant probate to the Will. Cress well J. in Sutton v. Sadler declares as follows: No doubt, he who propounds a will undertakes to satisfy the court of probate that the testator made its and was of sound and disposing mind. But very-slight proof of this, where the factum is regular, will suffice, and they who impeach the instrument must produce
32

Sutton v. Sadler (1841) 3 CBNS57; vol. 140 E. R. 671

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their proof should the actor (the party propounding) choose to rest satisfied with his prima facie case after an issue tendered against him. In this case, the proof has shifted to the impugner, but his case may easily hack again33 His lordship affirms that the result is the same where the party propounding does not rely on the prima facie case, otherwise called the presumption, but gives the whole of his proofs in the first instance. He concluded that the onus, whatever the case, remains on the propounded throughout and the court or jury who have to decide the question in dispute must decide upon the whole of the evidence so given and if he does satisfy them that the Will is valid, they ought not pronounce against it.34 Buttons case systematically highlights the mode of proof on the prima facie presumption of sound disposing mind. If indeed a Will is not irrational on the face of it, it is produce before a jury and the execution is proved, and no other evidence is offered, the jury would be property told that they night to find for the Will; and if the party opposing the Will gives some evidence of incompetency, the jury way, nevertheless, if the does not disturb their belief in the competency of the testator,
33 34

Sutton v. Sadler (1857) 3 CBNS57; vol. 140E.R671. Ibid at p. 674

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find in favour of the Will and in each case the presumption of competency will prevail.35 Like any other presumption, this presumption is mere presumption of law. In other words, it is rebuttable in the sense that when the whole matter is before a jury and evidence given on both sides, they ought not to affirm that a document is the Will of a competent testator unless they believe that it really is so.36 4.5.1 Evidence to Support Evidence of Sound Disposing Mind We have seen that in matters relating to Wills, the adage he who avers must prove does not necessarily apply it is the duty of the propounded of the Will to satisfy the conscience of the court, that all is well before the court grants probate to the Will. The evidential onus thus rests initially with the propounded. However anyone who seeks to fault the Will on any grounds will thereafter adduce evidence to sustain his claim. In that case, the onus shifts to the aggrieved person. The propounded may rest his case on the presumption or go further to adduce all evidence at his disposal to disprove the allegation. At the end of the day the court evaluates the totality of the evidence before it and either finds for or against the Will.
35 36

Ibid. Ibid 1 at p. 676

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The question now is, what sort of evidence must the propounded adduce to impress the court that the testator had sound disposing mind at the time he made the Will? Both oral and documentary evidence is admissible. Statements made by him at the time of making the Will or preparation thereto are relevant and admissible to show that he knew the character of the act he was undertaking. The fact that the Will is in his handwriting is strong in favour of capacity. It has been shown in Cartwright v. Cartwright37 that the court inferred capacity from the fact that the testatrix wrote the testament in her own handwriting unaided, after asking for writing materials. The evidence of an attesting witness is also admissible to show capacity, although this has to be corroborated.38 Evidence of conduct before and after the actual making of the Will is admissible. In the Johnson v. Maja39, the testator prepared the lengthy Will with its numerous and somewhat complex provision, and he himself initialed each page of the Will. He continued in active practice of his profession at the bar for some years after the date of the Will and lived for over six years afterwards, doing what an ordinary person of his age and status did. The testator

37 38

Supra at pp. 83-84; see also Johnson v. Maga (1951) 13 WACA 29. 100 Booth v. Blundell (1815) 19 ves 494 at p. 504; Howard v. Braith wait (1812) 1 ves & B 202. 39 (1951) 13 WACA 290.

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himself took the Will to a Mr. Wilson, one of his witnesses, and he called in a Mr. Coker, one of his tenants, as the other witness for its execution and attestation. In the Adebajos case, Will was executed on the 25th of June, 1969. On the day he execution and attestation the testator and his lawyer drove to his office, checked the original of the Will with the copy in his possession; went to another part of the office to bring in the two witness who accompanied his to his own office complex. He told the witnesses that he wanted to execute his Will and want them to act as witnesses. The testator between March and May 1969, carried out certain transaction at the lands Registry in Lagos in respect of the registration of some of properties. Being the owner of a football club be attended football makes around the same period. The testator went to the office between April and June, 1969 though not very regularly as he used to and any time he came, he came unassisted. Being a regular and active member of his church members who case to his house to discuss church activities with him gave evidence which the court believed. He wrote letters which were tendered and certain in evidence to his sister in the U.K. instructing that his Will, should be that his bills should be settled in certain repairs affected on his properties in England.

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It was show that 28th June 1969 the day the testator was going to England for treatment, he went to his bankers to transect normal banking business, including the purchase of travellers cheques. It is more beneficial in support of capacity to adduce evidence of general habits and course of life because this gives greater weight than evidence of particular acts. In Smith v. Tebbitt40 the court evaluation the general habits and course of life of the testatrix who believed she was part of the Trinity and that judgment of mankind would be made in her drawing room which she was had lavishly prepares for the occasion. She thought her husband was the devil and that she was a bride of God and was immortal. All these are consistent with religious delusion. And yet she did specific acts which might be consistent with sanity, like buying a vault for herself. The court refused to put much weight on particular acts but rather addressed general pattern of behavious. The test appears to be this has the testator behaved and acted in a manner which ordinary reasonable people act? It is in order to receive the evidence of a medical practitioner who had attended the testator. Such firsthand testimony is preferable to the hypothesis of a doctor Who had not seen that expert could testify that a set of symptoms may cause loss of memory and concentrated another equally competent medical expert could testify
40

(1867) L.R.I.P & D 397

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to the contrary. Perhaps, this is why Taylor C.J in the Adebajos case refused to be persuaded by the expert evidence of the doctors who gave evidence for the defence41 this lordship preferred to act on the evidence of the doctor who attended and treated the testator 4.5.2 DELUSION Delusion may affect he maid and thereby incapacitate the testator. In other words, a Testator may not possess sound disposing mind as a result of his delusion. What is delusion? It has been severally described as follows; (i) (ii) A belief of facts which no rational person would have believed;42 A pertinacious adherence to some delusive idea in opposition to plain evidence of its falsity;43 (iii) The belief of things as realities which exist only in the imagination of the patient.44

41 42

(1973) 4 Sc 22. Persir john Nicoll in Dew v. Clerk (1826)3 Add .79 43 Ibid. 44 per lord brougham in warning 6 Moo P.C.C. 341

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In simple terms, delusion is a belief in the existence of something which no rational person could believe and at same time, it must be shown to be impossible to reason the patient out of the belief.45 It is quite possible to retain general capacities, even though one suffers from delusion. A testator may retain sound disposing mind, even though he suffers from one sort of delusion or the other. There must be a connection between the disposition made and the delusion before the disposition made or the Will can be invalidated. The disposition made or the Will itself may not be affected as long as there is no nexus between the disposition and the delusion. This proposition will be illustration by two cases: (i) Banks v. Good fellow

This case has been amply discussed above under the heading sound disposing mind. Indeed, it is one of the leading cases on testamentary capacity of the mind.46 To recapitulate, the testator suffered from two delusions which disturbed his mind:

45 46

Williams on Wills 5 Ed (2001) p.28 Supra pp. 73-74.

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(a) (b)

that he was purchased by spirits, and that a man since dead came personally to mutest him.

As has been shown, neither of these delusions had or could have had any influence upon him in disposing of his property. The court found for the Will because there was no connection between the dispositions made and the delusions which troubled him. The testator was found to be in possession of his faculties when he executed the Will. (ii) Smith v. Tebbiltt

This case has also been mentioned briefly above.47 It is a case of religious delusion. The testatrix died in 1866, leaving a Will dated 2nd March, 1866. She left various legacies to her sister, Other relations servant and charities. She left the reside to a Dr. John Smith the elder,, elder, Samuel Smith. April from the residue, she left a legacy of thirty thousand pounds to Samuel Smith and the estate of chairman dean was devised in addition to him for life and then to his two daughters.

47

Supra p.90.

101

The will was contested by Mrs. Sarah Tebbilt, the testatrixs surviving sister, on the grounds inter alia that the testatrix was not of sound mind, memory and understanding at the time of the alleged execution of her will. Evidence was admitted to show that the testatrix had told people she had intercourse with the creator who she talked with the same way she talked with people. She called herself the third person in the Trinity. She was the Holy Ghost and Dr. John Simons come of the residuary legatees) was the father. She furnished the drawing rooms for the second coming of Christ on earth to judge the world, to dwell in and that was the reason why she had gone to so great an expense to do up the place. She always maintained that Smith, God the father, knew all she thought and she did. She talked of the work she and Dr. Smith were involved in, for which she said Dr Smith needed money which she provided. She employed Samuel smith as her secretary and he was living on a salary of four hundred pounds per year. But he did very little works for her. She saw him as one of the devil heads.

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Dr. Smith was not a blood relation. He first attended the testatrix professionally in 1832.later,he was receiving her duodena and paying them into her banks Samuel smith was the doctors brother. Sir J.F. Wilde held. The conclusion of the court as to the validity of this will must have been made apparent. I think it cannot stand-in cannot reconcile the proved hallucinations of the testatrix in the matter of religion with the action of a sound and healthy mind on the one hand, and other, I find them to be just as a diseased mind is known to engender. I can find no excuse or explanation in her temperament or general character for her absurdities on this special subject48 His Lordship Concluded: I find clear fraise of insanity at one time and insane aversions at another a large fortune ill husband estranged, extravagant benefits on those about her through strangers in blood, a secluded life, and a submission to the will of another, apparently found on the special subject of her hallucinations, for which the external and visible relations of the parties can hardly account. A life with such features is not calculated to rebut the conclusions to be drawn from her proved decisions on the subject of religions49
48 49

(1867) L.R 1P$5 398 at p. 436. Ibid

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The court pronounced against the will without any hesitation. If therefore the mind becomes a prey to insane delusions to interfere with and disturb its functions and to lead to a testamentary disposition due only to their benefit influence as indeed was the case in Tebbilts case the obvious conclusion therefore is that condition of testamentary power fails and that a will made under such circumstance ought not to stand. As has been stress earlier, the existence of a delusion compatible with the retention of the general powers and faculties of the mind will not be sufficient to overthrow the will unless it were such as was calculated to influence the testation in making it. Curiously enough in the Estate of Barman, Caesar and warmouth v. Bohrmann,50 the court found as a fact that the testator suffered from delusions, that his delusions affected the disposition made by him, and yet rather than invalidating the testament to it after the court exercised the offending disposition. In that case the testator made his will on 26th November, 1926, and subsequently executed four codicils the last in 1932. The bequests were quite ordinary ones to

50

(1938) 1 AII E,R.

104

relations and charities, The 1932 codicil declared in clause 2 that the gift to charities should be read as if the word ENGLAND had been deleted there from and the words: United States of America substituted therefore. The evidence showed that the testator did not enjoy the best of health and often treated his relations in a harsh manner. He had, however, at all times been a man of exceptional acumen in managing his private affairs which chiefly concerned the investments of his capital in stocks and shares. In the last years of his life. He was clearly suffered from a delusion that the London city council was acting improperly in order to desire to acquire for hospital purposes. It was found as a fact that the testator was suffering a delusion that he was a paranoid psychopath- at the time the codicil was in 1932, but that the only testamentary disposition affected thereby was the substitute of the words United states of America for England. Held the will and codicils were valid testamentary disposition, except clause 2 of the codicil of 1932 which should be s deleted there from.

105

This case is principally of interest in that it is first time the court had, in a case of delusional insanity, declared for a testamentary disposition subject to the deletion of the offending clause. Decision may be supported on the grounds that the testators decision was consistent with the retention of general power and faculties of the mind. All the testamentary document appeared normal and reasonable except the offending clause 2 of the 1932 codicil. Also, all the bequests were well intention and rational and to all allow a clause of the condicil to frustrate the overall intention of testator and deprive beneficiaries of their bounties would not be commendable. Indeed, Langton J, who decided the case, concedes that he might be over stepping judicial grounds and transgressing into the realm of the legislature. But the excused himself and justified his singular action by saying that it had been practice in the court for many years to delete from instruments or testamentary disposition anything which the court was satisfied was not brought to the knowledge and approval of testator. He concluded:

106

I conceive that am doing no more now in declaring for the condicil without 2 than I should be doing in deleting from the condicil something which I believe was never brought to his knowledge and approval as a same balanced Man51

51

ibd at p. 282.

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CHAPTER FIVE VITIATING FACTORS 5.1 Introduction

Vitiate means to weaken, invalidate or to make ineffective. It means that there are elements when present or absent in a will negate or render the will invalid at law. Their present can hinder the court from granting probate. By probate we mean the legal procedure which approves the distribution of the property of a persons estate. It is also the process of proving the validities of a persons will. For probate to be granted upon a will, one must not only comply with the requirement of will but must avoid the factors that will lead to be pronounced as invalid in court. On the other hand a will is revocable any time before the testators death. He may revoke his will by rescinding part or the whole of the will. The revocability of a will therefore is its hall mark. A will may be revoke in there ways. A will may be re revoked by a subsequent will or codicil or any other instrument in writing by marriage and by destruction with intent.

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5.2

Vitiating Factors

5.2.1 Undue Influence A will must reflect the wishes of the testator. The provision of the will must have been voluntarily made without pressure from any quarters whatever. In HALL v. HALL.1 Sir J.P Wilde stated inter alia thus: A testator may be led but not driven and his will must be the offspring of his own volition and not the record of someone else a will induced by the undue influence third part is liable to be set aside. It is necessary again to note that if part to the will has been induced by undue influence; that part of the will be set aside and probate given to the remaining part of the will. A will induced by undue influence cannot be deemed made with intention of the testator. This in because the undue influence must have negative and intention the testator might have had. Undue influence in the case of HALL v. HALL (SUPRA) was described as pressure or coercion of whatever character exerted as to overpower the volition of the testator even though no force is used or threatened.

(1891) 3 Ch. 389

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In the case a distinction was made between persuasion and pressure. Persuasion in not unlawful as it is lawful to persuade a testator to make a gift to the persuaded but the testator must not be coerced by the persuader and not pressured into making the gift when the testator would have been overborne without his judgment being convinced. Persuasion appeals to the attention of ties or kindred; to a sentiment of gratitude for past services as pity for future destitution or the like. These sentiments are all legitimate and may be fairly pressed on a testator. It is generally accepted that a testator may be persuaded of make disposition to favour one of the objects of his regard. For instance a child or friends, spouses and others who think they have claims on the testator as long as no pressure is mounted to overwhelm the volition of the testator without convincing his judgment. Pressure of whatever kind is sufficient to amount to undue influence se also is coercion and it does not matter whether force is used or threatened. To succeed in the allegation of undue influence on the testator, motive and opportunity for the exercise of such influence must be proven. Motive without opportunity may not be sufficient. The existence of motive and opportunity coupled with the fact the person who has then benefited to the exclusion of other in not

110

sufficient proof of undue influence there must in addition be positive proof of coercion overpowering the volition of the testator. It is important that proof must be given that pressure arising from undue influence really overwhelmed the volition without convincing the judgment of the testator before the allegation could be sustained. If the mind of the testator is already made up to make his will one way or the other and the pressure does not work on him, it is submitted that undue influence has not been successfully proved2 Undue influence cannot be presumed, it must be proved, the challenger cannot ask the court to presume undue influence because of the relationship between the testator and the beneficiary. It is important to show that but for the pressure or coercion, the testator would not have made the dispositions. If it can be shown that regardless of the pressure, the testator did what he has always had in mind to do, the action it is submitted will fail. The motivation of the testator in making a Will in one way or the other is irrelevant. As a free agent he can give all he has to a mistress, a church, or other institutions provided he has memory and understanding at the time. That the testator did what

Kole Abayomi, Wills Law and practice Mbeyi and Associates Nig Ltd, Lagos (2004) page 110

111

he did because of some immoral consideration including transfer of attention from say, his wife to a mistress is irrelevant. Such unworthy act cannot and should not be construed as the exertion of undue influence on the testator by a third party. In JOHNSON v. MAJA3 there was no evidence to suggest that the mistress Jokotade, was instrumental in drawing up the Will nor was she with the testator when he took the will to the house of a friend for execution and witnessing by that friend and his tenant. No doubt the evidence given for Mrs. Johnson did indicate that there was a breach in the relationship between husband and wife and possibly a transfer of affection from wife to mistress. The court indicated that these were not sufficient to support the allegation of undue influence. Certain relationship are prone to allegation that undue influence has been exerted on the testator and patient, Some of these relation are between parent and child, husband and wife; doctor and patient, solicitor and client e.t.c. The reason for this according to Abayomi is that parties in these relationships are generally close and usually in any of the relationship; it is easier for one party to influence another. From this motive and opportunity can be easily discerned.

(1951) 13WA CA290

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The mere proof of a relationship in not enough to sustain an allegation of undue influence. In TILLEY v. BERG4 It was held that there was no evidence of endue influence where a solicitor was the sole beneficiary but the will was drawn up by another solicitor. However, in WINTLE v. NYE5 an old lady left the residue of her estate to the solicitor who prepared her will. She was unversed in business and her doctor described her as a very unintelligent person. Her will was very complicated and she received no independent advice. Her estate was worth over one hundred thousand pounds. The solicitor kept the testamentary documents (Will and codicil) and did not give copies to the testatrix. The Will and codicil were challenged inter on the grounds of undue influence. It was held that as far as the gift to the solicitor were concerned, they were not valid. In HACKER V. NEWBORN6 it was held that if a man make his will in sickness by the over importuning of his wife to the end that he may be quite, this shall be said to be a will made by constrain and shall not be a good will.

4 5

(No. 2) (1945) 3 WW81 (1959) 1 ALL ER 552: 1 WLR 284 6 82 ER 834

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Finally, undue influence is not really a question of testamentary capacity but that of a third party influencing unduly the testator in making his will contrary to his wishes. It is easier to put pressure on a sick testator and one impaired than on a testator in good and full health. However this should not be construed to mean that a testator in good health could not be equally vulnerable. 5.2.2 OTHERS Fraud Fraud differs from undue influence in that the former involves Misrepresentation of essential facts to another to persuade him to make and sign a Will that will benefit the person who misrepresents the facts. The testator still acts freely in making and signing the will. The two types of fraud are fraud in the execution and fraud in the inducement. When a person is deceived by another as to the character or contents of the document he is signing, he is the victim of fraud in the execution. Fraud in the execution includes a situation where the contents of the will are knowingly misrepresented to the testator by someone who will benefit from the misrepresentation.

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Fraud in the inducement occurs when a person knowingly makes a will but its terms are based on material misrepresentations of facts made to the testator by someone who will ultimately benefit. Persons deprived of benefiting under a will because of fraud or undue influence can obtain relief only by contesting the will. If a court finds fraud or undue influence, it may prevent the wrongdoer from receiving any benefit from the Will and may distribute the property to those who contested the will.7 Proof of fraud or coercion in the execution of a will invalidates it fraud at common law can be described as Intentional deceit, a false representation by the defendant of an existing fact, made knowingly or without belief in its truth, or recklessly, careless whether it be true or false with the intention that the plaintiff should act on it and which results in damage to the plaintiff. From this description of fraud, the main component of fraud in relation to writing of will in Nigeria is deceit. Therefore, when the signature of the testator is obtained by fraud or it may have been forged, and it is proved, its effect is to invalidate the will or the particular provision in the will prove by fraud. Failure by the preparer of a will on behalf of a

Gerald N. Hill and Kath T. Hill. Legal th http://www.thefreedictionary.com. 27 march 2013

Dictionary:

Testamentary

Capacity

(1981-2005)

115

testator to bring home to the testators mind the effect of provision in the will giving to the prepare a large interest under the will amount to fraud. Mistake Mistake may also be a reason for rendering a will invalid. Mistake exits when a person under same erroneous conviction to the law omits to do some act which but for erroneous conviction he would not have done or omitted. It may arise from unconsciousness, ignorance, forgetfulness, imposition or misplaced confidence. Where there suspicious circumstances, the court will examine the document and will only pronounce the will valid if there is evidence to remove the suspicious circumstance. In WINTILE v. NYE (SUPRA) the testator left residuary estate to the solicitor, which was later, increased by a codicil. It was held that the quantum of the residuary estate raised grounds for suspicious. In RE SOLICITOR 8 a solicitor benefited from the will of his Client and the will was declared invalid. His name was later struck of the roll of solicitor because his gift under the will was very large, which gave room for suspicious.

(1939) 1 QB.

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When a testator intended to execute his will but by mistake signed the wrong document, that document will not be enforced. Such mistake often occurs when a Husband and Wife draft mutual wills. The document that bears the testators signature does not represent his testamentary intent, and therefore his property cannot be distributed according to its terms. Blindness or illiteracy Subject to the provisions of the illiterates Protection Act, a will executed by an illiterate or blind person is valid, provided that there is evidence that he had knowledge of the content of the will at the time of its execution. As is stated at page 47 in the 21st edition of Tristam and (vote on Probate practice: If the testator be blind or apparently illiterate ignorant, the court requires to be satisfies that be had knowledge of its contents. Unless suspicious attaches to the document e.g. where it is signed by mark or were the signature indicates extreme feebleness, the testators execution is sufficient knowledge and approval. In AGIDIGBI v. AGIDIGBI9, the testator despite the fact he was blind understood the content of the will and signed. But the 1st defendant challenged the will and pleated

(1996) 6 NWLR part 454 p. 300.

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with the court to declare the will null and void on the ground that the testator was blind and did not understand the will which he had signed. The court held that the will of pa Agidigbi is valid and that his inability does not deprive him testamentary capacity. In TONYE EGBA v. CHEDRACH ENENIA AND ORS, it was contended on behalf of the defendants who were contesting the validity of the will of an illiterate person that apart from the jurat of the attesting witness, a jurat to the effect an interpreter had first read and explained the content to the testatrix should also have been executed. This was held to be irrelevant for it is an established principle of law: that where is no question of fraud, the fact that a will has been read over to or by a capable testator or the contents have been brought to his knowledge in some other way is conclusive evidence that he knew and approved the contents of it.10 5.3 Revocation of Will

A will is ambulatory, which means that a competent testator may change or revoke it at any time before his death. Revocation of a will occurs when a person who has

10

Unreported, Suit No. LD. / 634/70 delivered on 22/6/72 per Adefarasin J, High Court of Lagos.

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made a will takes some action to indicate that he no longer wants its provision to be binding and the law abides by his decision. For revocation to be effective the intent of the testator, whether express or implied, must be clear, and an act of revocation consistent with this intent must occur Person who which to revoke a will may use a codicil, which is a document that changes, revokes, or amends part or all of a validly executed will. When a person executes a codicil that revokes some provisions of a previous will, the courts will recognize this as a valid revocation. Likewise, a new will that completely revokes an earlier will indicates the testators intent to revoke the will. Statements made by a person at or near the time that he intentionally destroys his will by burning, mutilating, or tearing it clearly demonstrate his intent to revoke. Sometimes revocation occurs by operation of law, as in the case of a marriage, Divorce, birth of a child, or the sale of property devised in the will, which automatically changes the legal duties of the testator. Many states provide that when a testator and spouse have been divorced but the testators will has not been revised since the change in marital status, any disposition to the former spouse is revoked.

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There are three ways of revoking a will. These are: by destruction, by a subsequent marriage and by the making of a new will or codicil. 5.3.1. Revocation by Destruction A will can be revoked by destruction.11 There are two elements invoked kin this process, (a) (b) The act of destruction and The intention to revoke

All destroying in the world without intention will not revoke a Will nor all the intention in the world without destroying = there must be the two.12 The law on revocation by destruction with intent is uniform throughout the states of the Federation. Section 16 of the Wills Law13 provides that: No will or codicil, or any part thereof shall be revoked otherwise than as provided by section 14 or any other Will or Codicil executed in manner here in before required or by some writing declaring an intention to revoke the same and executed in the manner in which a will is here before required to be executed or by burning, tearing or otherwise destroying the same by the testator
11 12

Section 20 Wills Act; section 16. Cap 163 Laws of Kaduna state 1991 Per James, L.J. in Cheese v. Lovejoy (1877) PD. 251 at 253. 13 Cap 163 Laws of Kaduna State 1991.

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or by some persons in his presence and by his presence and by his direction with the intention of revoking the same. This section is similar to the provision of section 20 of the will Act of 1837. (a) Destruction

Destruction must be actual. Mere symbolical burning, tearing or other act of destroying will not constitute revocation. Cancelling a will through with a pen and crossing out the name of the testator is not destruction. In Cheese v. Lovejoy, 14 the testator ran a pen through some lines of his will and wrote on the back of it. All these are revoked. He then threw the will amongst a heap in the corner of his room. The Housemaid retrieved it and kept it in the kitchen until the testators death seven years later. It was held that the will had not been revoked. There had been no proper act of destruction. E.g. squeezing up the will and throwing it anywhere is not destruction for the purpose of revocation. There must be some equipment act or cancellation or obliteration.15 However, destruction need not be total. Cutting out, burning not or the complete obliteration of the testators or witness signature would be sufficient. In the Goods
14 15

Ibid (1887) 12PF 141

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of Morton,16 where the signatures of witnesses were scratched out, this was held to constitute a valid revocation. By contrast, in Doed. Perkes v. Perkes,17 a testator being angry with one of the beneficiaries of this will, commenced tearing up the will with the intention of revoking it. He was however persuaded to stop after he had wanted to do by way of destruction. If he had wanted to revoke by tearing the will into four pieces however, his act would have constituted revocation. The whole or part of a will may be revoked by destruction. Whether either in the case depends on the intention of the testator as proved in evidence or inferred from the circumstances of the case. In the Goods of Woodward,18 only the first lines were revoked. By contrast, in Leonard v. Leonard,19 the first two sheets of a will of five pages were destroyed, but the remaining three sheets were unintelligible without the first two sheets. It was held that in circumstance and by the direction of the testator. Thus if a will is turn by another person in the presence, and by the direction of the testator. Thus of a will is turn by another person in the presence, but not by the direction of the testator there is no revocation. In Gill v. Dill, 20 a will was turn by

16 17

(1820) 3B & Ald. 489; 106 E.R. 740 (1893) 8 P & D 471. 18 (1871) 2p & D 206 19 (1902) P. 243. 20 (1909)p .157

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the testators wife in fit of temper, in the testators presence. It was held that there had been no revocation. There is also no revocation if the will is turn on the instruction (by the direction) of the testator, but not in his presence .Thus in the Estate of Kramer,21 a solicitor was instructed over the telephone by the testator to destroy his Will. This was held not to constitute revocation because the destruction was not done in the presence of the testator. (b) Intention to revoke

In order to form an intention to revoke, the testator must have necessary mental capacity, I. e; he must be in sufficient possession of his senses. An accident or mistake cannot revocation. A will is not revoked if there is merely an intention to destroy, but no intention to revoke. for example a will destroyed in the mistaken that if is invalid, or useless or that it has already been revoked, would not stand revoked, if there was such a mistaken belief on part of the testator .The intention to revoke is presumed to have existed if a testators will is missing at his death, or if it found destroyed also at his death

21

(1965)110 s. j. 18

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Finally, destruction when dues not amount to legal destruction and / or which lacks animus revoked cannot be adopted later by the testator as his voluntary act. A testator, who wishes to revive a revoked will, may do so by re-execution with intent to revive22 5.3.2 Subsequent will or codicil A will may be revoked by a later one as long as the formal requirement are observed in the later cases .such revocation may be affected by an express clause or by necessary implication from the wording of the will . Another will or codicil may express or impliedly revoke an earlier will. Express revocation A subsequent will or codicil can expressly revoke an earlier will. usually use to denote a will as being the last and only will may not by themselves revoke earlier will .The intention to revoke must be obvious from the text of the will before such word could be held to revoke previous will. Williams on will accordingly stresses:

22

see. 18 Kaduna State wills law 1991

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The insertion of such word as last and only Will does not necessarily work are vocation of all previous testamentary instrument. It is only where it is clear from the general tenor of the last Will that the testator did not intend the earlier Will to remain in operation that it is revoked.23 However an express revocation clause- I hereby revoke all testamentary documents previously made by me-will revoke a previous Will except it can be shown that the clause was inserted by mistake and without the approval of the testator24 or that the two Wills may relate to different properties of the testator say in two different countries.25 Implied Revocation Even without an express revocation clause; a later Will will revoke an earlier one if the later Will covers practically the same ground as the earlier one. In this case it is implied that the later one takes the place of the earlier Will and probate will be given to the later Will.

23 24

Williams on Wills 9 Ed. (2008) at p. 129 Lowthorpe-Lutwidge v. Elstone (1893) P.I which was criticized in the Lutwidge case. 25 OLeary v. Douglas (1878) B L.R.333. see also Chichester v. Quatrefaga (1895) P.186 where there were two codicil and the later one was more less a repetition of the earlier one

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Similarly if a Will of 1988 gave Blackacre to jane, Whiteacre to john and Greeacre to Peter, and a later Will of 2000 gives all have or may acquire to Smith, that later disposition would impliedly have revoked the devises to Jane John and Peter. But supposing the later Will talks about yellowacre, Blueacre and says nothing about Blackacre, Whiteacre and Greenacre which the testator still possesses as at the time of his death, it would seem that the two Wills are partly inconsistent and may be read together to constitute the testators last Will. Codicils Care must be taken in deciding the effect of the revocation of earlier testamentary instruments by a later Codicil. Supposing a codicil is used to revoke an earlier Will, are intermediate codicils to the Will ipso fact to revoked as well? It has been suggested that this becomes a matter of construction. That if the revoking codicil distinguishes between the will and subsequent codicils as for example, by date, the subsequent codicils may not be revoked.26

26

Williams On Wills 9 Ed (2008) at p. 132. See also farrer v. st. Chatherines college Cambridge (1873) L.R. 16Eq 19.

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Finally: by section 20 of the Wills Act (1837) and 19 the Wills law of Kaduna State (1991), a will can be revoked by the making of another will or codicil. This usually occurs when a testator makes a subsequent will in which he States that all previous wills are revoked. This is known as express revocation. There is also implied revocation. This occurs when the testator makes a subsequent will whose terms are inconsistent with an earlier one, although there may be no statement in the later will, expressly revoking the earlier one. 5.3.3. Subsequent marriage

By section 18 of the Wills Act (1837) and section 15 of the Kaduna State Wills Law, every will made by a man or woman shall be revoked by his / her marriage. In the Western Law, marriage in accordance with customary law is exempted from having this effect. This exception obviously does not exist in the English Act applicable to the Eastern and Northern States but since the provision was intended for monogamous marriages, it cannot also apply to customary marriages. A void marriage also does not revoke a will.27

27

Mette v. Mette (1859) 1 SW & Tr. 416.

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There is one power exception, (applicable to the whole country). This is that if s will is made in the exercise of a power of appointment, and the real or personal property which is appointed will not in default of appointment pass to the testators heir, executor or administrator or person entitled as his or her next of kin under the statute of distribution, then the Will will not be revoked by marriage.28 The underlying purpose (of this provision) was to allow the appointment by will to be revoked by the testators subsequent marriage only in circumstance where the testators new family might benefit under the gift in default of appointment29. Further light has been thrown on this rather complex and incomprehensible provision. Thus: If the testators new family will get the property even if the will is revoke, there is no harm in allowing the marriage to revoked it. But if in default of appointment the property will pass out of the family, as defined by the rules of intestacy, or only party

28 29

Section 18, Wills Act (1837) and section 15 of the Kaduna State Wills law (1991) th Parry and Clark, law of Succession, 8 Ed. P. 60. See in the Goods of Fitzroy (1858) Sw & Tr. 133 for the applicable of this provision

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to that family, the will is allowed to stand so far as if exercises the power of appointment, though the rest of the will is revoked.30 The main exception to the role of revocation marriage is that a will is not revoked by a marriage if the will is expressed to be in contemplation of that marriage.31 This exception does not apply to the East and North, being contained in the 1925 law of property Act of England, nor does it apply to the Western State, Lagos and Edo and Delta States because it is not contained in the Wills law of the West. It therefore does not apply anywhere in this country. The effect of subsequent statutory marriage by a testator on an earlier will made by him in peculiarly Nigerian circumstances was given extensive consideration in Mrs. Alero Jadesimi v. Mrs. Victoria Okotie-Eboh & 2 Ors.32 The testator Chief Festus Okotie-Eboh married the 1st respondent under it sekiri customary law in 1942. The appellant and 2nd and 3rd respondents were the children of the testator. In 1947, the testator made a will and in 1961, he (the testator) and the 1st respondent decided to enter into a statutory form of marriage, although they had already been married under customary law since 1942 and thereafter been living as husband and wife.
30 31

Megary & Wade, the law of property, 8 ed (2012) p. 481 Section 177 of the L.P.A. 1925 32 (1996) 2 NWLR (pt. 428.

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The testator was killed in the cause of the first Nigerian military coup d etat on 15 January 1966. Sometime in 1971, unaware that the testator had made a will, the appellant and respondents applied for, and were granted letters of administration of the testators estate. However in 1974, they became aware of the existence of th e Will made in 1947. The Appellant brought this suit for a declaration of the validity of the Will and the revocation of the letters of administration granted herself and the respondents. She succeeded at the trail court, lost in the Court of Appeal and finally succeeded at the Supreme Court. In resisting the appellants action, the respondents relied on section 18 of the Wills Act 1837, which was a statute of general application applicable at the time of the Will was made. Section 18 stipulated. That very Will made by a man or woman was revoked by any subsequent (statutory) marriage. The argument of the respondents was that the statutory marriage of 1961 between the parties revoked the testator s will of 1947. Unanimously rejecting this argument and upholding the validity of the Will, the Supreme Court held that by section 45(2) of the interpretation Act, cap 89, laws of

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the federation of Nigeria 1958 (cap.192, laws of Nigeria 1990), statutory of general application are to applied to Nigeria subject to local jurisdiction and local circumstance. Section 18 of the Wills Acts did not contemplate the peculiarly Nigerian circumstance under which two people already married under one system of Nigerian circumstance under which two people already married under one system of Laws. Would undergo a second marriage under another system of law, this time, the statutory law system. Therefor section 18 of Wills Act, which was meant to protect the interest of a new spouse, by revoking any will of the other spouse made before the marriage, cannot apply to Nigerian situation, where a couple already married and customary law, decide to undergo a second marriage under the marriage Act. Iguh, JSC. Put it succinetly thus: With profound respect to the court of appeal, I find it difficult to accept that the Will in issue in the present case automatically stood revoked by the application of section 18 of the wills act, 1837 In so far as the testators subsequent marriage had converted his hither to polygamous marriage to a monogamous one. In the regard, I am in total agreement in the submission of the learned senior
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advocate, Kehinde Sofola Esq. to the effect that in arriving at in correct interpretation of the said section 18 of the wills act, the court must avoid any interpretation that will be unjust or absurd. No doubt, under section 18 of the wills act, 1837 of England, the marriage which can revoke or invalidate an existing Will of either of the parties, is a marriage within the English concept. This connotes a marriage between a man and a woman each of whom of the time of the marriage was unmarried or free to get married and therefore possessed the legal capacity to contract a lawful marriage. In my view however, the marriage under the marriage contemplated under section 18 of the Wills Act, 1837 of England cannot conceivably include a subsequence marriage under the marriage Act, cap. 15 between a man and a woman who are already validly marriage under customary law and living together as husband and wife before either of them made his last Will and testament and over which the section 18 of the Will act, 1837 of England by its tenor does not appear to cover a subsequent marriage under the marriage act, cap. 115 by a man and woman such as the testator in the presence case and his wife, the 1st respondent, who prior to there said subsequent marriage under the act has been validly married under customary law and living together as husband and wife even before the Will in issue was made. After all, the testator, if he so desired had over 5years to revoke the said Will and testament before his death in 1966. Under section 45(2) of the interpretation act, cap 89, it is plain that a statute of general application shall be in force so far only as the limit of that local jurisdiction and circumstance shall permit section 45(3) then provides that such imperial laws as the Wills act, 1837, shall be read with such formal verbal alterations not affecting the substance as to names, localities e.t.c. as may be
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necessary to render the same applicable to the circumstances. It therefore seems to me clear that the Wills act 1837 may be applied only in so far and to the extent that our local circumstance, custom and tradition permit. I also accept that had the testator not been lawfully married to the 1st respondent as at the time the will was made, the wills act,1837 would have had full application and effect as envisage by British parliament which enacted it. In new, however, of fact that the testator was validly and lawfully married to them respondent under the prevailing local custom, tradition and laws, ever before the will in issue was made by him, I cannot accept that the subsequent reaffirmation of this marriage to the first respondent under the marriage set revoked his said will. I concluded by stressing that. I find it unacceptable that the will made by the late chief Festus Okotie - Eboh in 1947 after he had validly got married with his 1st respondent in 1942 was automatically revoked or invalidated by the provisions of section 18 of the wills set, 1837 of England as a result of the subsequent marriage of the same parties in 1961 under the marriage Act, Cap. 115, laws of the federation of Nigeria and Lagos 1958. the court below, with respect, was in error when it constructed the provisions of section 18 of the will acts, 1837 as revoking the last will as the tetramers of late chief Festus Samuel Okotie Eboh by virtue of his subsequent marriage under the marriage act, cap.115,to the 1st respondent. The trial court was right when it held that the will in issue was not thereby revoked. Even though the will act 1837 does not admit of exception that a will made in contemplation of marriage is not revoked by the celebration of the marriage, we can
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stretch the ratio of the Okotie Ebohs case by saying that if it can be proved to the satisfaction indeed the will was made in contemplation of a marriage. It will not be revoked in celebration of the marriage similarly there will be no revocation if the monogamous Christian marriage is preceded by a customary law marriage subsisting between the same parties.33

33

Kole Abayomi wills: Laws and practice, Mbayi and Association nig, ltd, Lagos (2007) pa 185.

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CHAPTER SIX SUMMARY, FINDINGS AND RECOMMENDATIONS 6.1 Summary

So far, this research has been able to examine comprehensively the essential and formal requirement of a valid will under the Kaduna State Wills Law 1990. The work traced the development of Wills in Nigeria, where we were made to understand that in the pre-colonial Nigerian society, the concept of Will as it is today, was unknown. The writing form that is known as the making of voluntary or oral declaration by a testator during his lifetime or at worse a time close to his death. On how his property should be administered after his death was not strange to many natives groups in Nigeria. Such declaration which is usually vira-voce was made by aged persons in their dying moments, while sick and assured of death. Each society had its own customary law of succession which regulated the devolution of estate. The concept of written Will came into area now known as Nigerian via the Wills Act of 1837 which is a statute of general application received in Nigeria by virtue of colonization by the British powers. The formalities and requirements for making a valid Will as contained in Section 9 of the Wills law mentioned earlier is the source of

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inspiration of the relevant provisions in our own Wills law including the Wills law of Kaduna State. Furthermore, apart from exposing the types of Wills that are in existence the research work has exposed their devices through which the property of a deceased may be disposed vis-a-vis settlement inter-vios in which case a testator conveys his properties interovos of trustees to hold for himself (the settler) for life with the remainder to a beneficiary nomination where a person nominated a third party beneficiary to a wealth in case of the death of the original beneficiary. We have identified in the preceding chapters, that by virtue of Section 9 of the Wills act 1837, Section 4 (1) of the Wills law of 1987 and Section 7 of the Kaduna State Wills shall be valid unless it is in writing. Any Will that fails to satisfy this requirement stands invalid. This is so although the law did not stipulate the material in which the writing must be done. As for the essential requirement of a valid Will, we have observed that a testator at the time of executing a Will must possess the requisite testamentary capacity in which case his mind must sound to dispose of his property. In accordance to his wish, he therefore lacks the capacity to dispose his property at the time when he

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does not possess a sound disposing mind or where he has been coerced and overpowered to make disposition he would not have ordinarily made. For a testator to have a sound disposing mind to be able to possess the requisite testamentary capacity, he must understand that he is giving his property to one or more objects of his regard he must also understands the nature and extent of the claim upon him those whom he is including and those who he is not including in his Will. Apart from this, he must also understand the nature of the act he is performing and its effect. The law presume that, the testator has a sound disposing mind at the time he made the will; however, it is the duty of the testator of the Will to satisfy the court probate on his Will, on instances where evidence must be attached to show that the testator has a sound and disposing mind when the Will was made. We also saw that though it seem a testator has unlimited power to make a Will, it does not appear to be so far a testators capacity to freely make a Will may be curtailed under the Kaduna State Wills law. Even in English law there is no freedom as such as there are curbs and limitations.

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We also saw that though it seems a testator has unlimited power to make a Will, it does not appear to be so far a testators capacity to freely make a will may be curtailed under the Kaduna State Wills law. A Will may be completely revoked, altered or added to by the testator during his lifetime so long as he complies with the appropriate formalities. Thus a Will may be revoked by destruction, subsequent, manage and by a latter or codicil or any other instrument in writing. Finally, a Will that has been revoked may be revived by a testator by re-execution with intent to revive. 6.2 Findings

The research in the course of this work found that: (a) Most people make their Wills not being mindful of the essential requirements of a valid Will under the law caused either by lack of sufficient education on the matter, poor or bad legal advice given by quack professionals. (b) The Kaduna State Will Law needs to be reviewed to be in a concomitance with the new evidence Act,1 which makes provision for oral evidence.2

1 2

The Evidence Act Cap E14 (2011) Section 258 of the Evidence Act Cap E14 (2011)

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(c)

The current Wills laws of Kaduna State do not make provision for a testator who wants to make a Will but is not in a position to write anything i.e. it only recognizes a written Will.

6.3

Recommendation

In view of the foregoing, we recommend that: a) The law should saddle professional like legal practitioner with a special responsibility of educating Wills writer prior to engaging in any act of Wills drafting. b) It has been observed that all states that have not enacted their laws should try and enacted their own law. The statute of general application would stop to apply in these states thereby reducing the age requirement which a 21 years under the English Act. Most states that have enacted their laws have stipulated that a person of 18 years can make a valid Will. c) A means should be devised in the system to get inept practitioners out of the system for an issue such as disposition of property of a deceased through Will is a serious matter.

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d)

Solicitors must make sure that Wills are duly executed. If a testator has complicated family history, it could backfire if adequate preparation is not made to forestall such situation that could allow a relation to go to court in the future to challenge the execution of the Will on the grounds of capacity.

e)

A committee of knowledgeable persons on various customary settings should be set up to codify the customary laws of our community to have a standard reflective of our customary Will in each community.

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BIBLIOGRAPHY 1) Abayomi, K. Wills Law and Practice. Mbeth and Associates (Nig.) Ltd, Lagos (2004) 2) Abayomi, Kole: Okelola and Boyle- An Overview in Nigerian Law and Private Journal Vol. 3 No. 1, March (1999) 3) Abayomi, Kole: Powers of Executors in Quarterly Law Review of Nigerian Vol. 1986 4) Animashaun, T. O. G and Oyeneyin, A. B. Laws of Succession, Will and Probate in Nigeria, Lagos, M. I. D. 2002 5) Adubi, C. O. Roles, Duties and Powers of Personal Representative in Ihuama, A. A. & Ibrum, G. M. (eds.) Law of Wills in Nigeria, Ibadan, Shaneson, 2001 6) Adubi, C. O. Drafting, Convenyancing and Will, The Lighthouse Publication Company Ltd. Lagos (1995) 7) Baker, P. V. & Langan, P. St. J. Snells Principles of Equity (28 th ed.) London, Sweet and Maxwell, 1982 8) Blacks Law Dictionary, Sixth Edition 1994

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9) 10) 11)

Campbell, Harry (ed): Blacks Law Dictionary (Centennial Edition) Esposito, J. L. Islam: The Straight Path. Oxford University Press, 1991 Gerald, N. Hill and Kath Leen T. Hill Legal Dictionary: Testamentary Capacity 1981-2009. http://www.thefreedictionary.com 27th March, 2013

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http://www.academicjournals.org/JICRC 2011

last accessed 29 September

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Imhanobe, S. D. Legal Drafting and Conveyancing. Abuja Secure Titles Publishers 2002

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Jarman, T: A Treatise on Wills, Sweet (Google Books) London Vol. 1 1844

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Megarry, Sir Robert Edgar and Wade, H. W. R: The Law of Real Property (2 nd Ed) London, Stevens & Sons Ltd, 1959

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Malike, A. S.: A Comparative Appraisal of Islamic Statutory Laws on the Devolution of Property after Death Zaria: An Unpublished LL.B submitted to the Faculty of Law, Ahmadu Bello University Zaria, 2005

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Mirow, M. C.: Last Wills and Testaments in England 1500 -1800 in Vanderlinden, J. (ed.) Acts a Causa de mort: Acts of Last Will, Brusells: De BReck UNiversite

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Nwabueze, B. O. Power of Testamentary in Bendel and the Western States of Nigeria in Journal of Nigerian Law, Vol. 1, No. 1, 1992

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Nwabueze, B. O. Nigerian Law, Enugu, Nwamife publishers, 1972 Okoro, N.: Customary Laws of Succession in Eastern Nigerian and the Statutory and Judicial Rules covering their Application, London Sweet and Maxwell 1966

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Sherrin, C. H. Barlow, R. E. D and Wallington, R. A.: Williams Law relating to Will (5th ed.) London, Butterworth, 1980

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Utuama, A. A.: Nigerian Law of Real Property, Ibadan, Shaneson 1989 Williams, Mortimer and Sunnuks: Executors, Administrators and Probate, 20th edition, Sweet and Maxwell UK, 2013

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