When someone is requested to write a will in Nigeria, there is always a misperception. In reality, the issue of writing a will in Nigeria does not indicate that death is imminent. It is only reasonable that one regulates his or her family's or loved ones' affairs in order to avoid problems that may emerge in the event of death.
Writing a will in Nigeria is subject to three main laws:
- Statutory laws
- Customary laws
- Islamic law
What is a Will?
A will is a testamentary document that expresses a person's last wishes as to how his or her property is to be distributed after death and as to who manages the property until its final distribution. With a will, a person gives instruction on how his or her property should be managed, distributed or disposed of after his demise.
Why You Should Write a Will
Death comes unannounced, usually. It is very painful to see the lifetime efforts of one get frittered away by those not deserving. It is possible the legacy left behind is shattered if succession and inheritance plans are not well put in place.
Therefore, the importance of writing a will cannot be overemphasized. Making a will displaces the rules of intestacy, satisfies the wishes of the testator, protects the children and provides for them wilful guardians, reduces litigation and inheritance taxation.
Who Can Make a Will in Nigeria?
In writing a valid will, the testator (the person making the will) must meet the following requirements:
- AGE: Only an adult can make a will. Such an adult must have attained the age of 21 years under the Wills Act or the age of 18 years under the Wills Law of Lagos State. Anyone that falls below the age of 18 or 21, as the case may be, lacks the capacity to make a valid will in Nigeria.
- MENTAL CAPACITY: A person making a will must possess a sound mind. The testator must have a sound disposing mind at the time he gives instructions and at the time the will is executed. There must be no infirmity or lunacy of any sort, no matter how slight. Therefore, in making a valid will, the testator must understand the nature of the acts of making a will, the extent of his property, the objects of his bounty and the manner of distribution.
How to Make a Valid Will in Nigeria
There are conditions which must be met in making a valid Will under the Wills Act. Making of Wills under customary laws and the Islamic law have their own systems, which are different from the statutory provisions.
To be valid under Nigerian Law, a Will must:
- Be in writing. The most preferred format is one typing it and printing as there can be mistakes with writing by hand. For it to be binding, the testator must put it into writing
- Be written by a testator above the age of 18 and with sound mind at the point of writing. The testator must be 18 years of age and above and must show that he is sane at the moment of making the Will and that he understands the action he is taking. Section 7 of the Wills Act
- Be made voluntarily, without any expression of duress, undue influence, and/or fraud.
- Ensure the testator acknowledges his signature in the presence of two (2) witnesses who must be present at the same time.
- The witnesses must sign the Will in the presence of the testator. It is important to note that a witness cannot be a beneficiary to a Will, and any gift given to a witness will be a nullity. Section 15 of the Wills Act.
- The Will must identify properly the beneficiaries and the properties bequeathed.
Contents of a Valid Will
- The full name (including former name and alias), address and occupation of the testator.
- The name(s) and address(es) of the executor(s) who will be in charge of the testator's assets.
- The full names and addresses of the beneficiaries in the will, and where the beneficiaries are minors, the particulars of the guardian appointed for them.
- A full list and particulars of the testator's assets, debts inclusive.
- The names and addresses of witnesses to the will.
Who Can Benefit From a Will?
Anyone can benefit from a will. A testator reserves the right to gift his property to whosoever he wishes after his death. So, a relative, friend, acquaintance or total 'stranger' can benefit from a will if so properly named by the testator.
Generally, however, a witness attesting a will shall not benefit under the will. The spouse of the witness attesting to a will can equally not benefit under the will. So, anyone making a will must ensure that witnesses or their spouses are not beneficiaries of that will.
Also, the solicitor employed to draft the will shall not benefit from it except in circumstances when the bequest is small and reasonable.
Where Can You Keep a Will?
- In the Probate Registry;
- In a Personal safe deposit box;
- With a trusted friend or relation; and
- With the Executor(s) named in a will.
- Bank safety deposit box
Consequences of Not Writing a Will in Nigeria
A person that dies without a will is said to have died intestate. Whereas, a person who makes a will dictates how his or her estate will be managed, administered or distributed, a person that dies intestate will have his estate administered by the authorities in accordance with the rules of intestacy. It means that the law determines who gets what.
Dying without a will is, thus, capable of breeding conflict and disharmony within the family left behind; has the potential of incurring more legal costs and the testator's wishes and best interest are not protected.
Do You Need a Lawyer To Make a Will in Nigeria?
Most people with simple estates can write their own wills without the assistance of a lawyer. However, there are several circumstances in which using an estate lawyer to write your will may be advantageous. This could apply if you:
- Have complex family dynamics,
- Are a business owner with huge assets,
- Possess a large number of assets in multiple states,
So, if you decide that your situation is too intricate to make your own will, you'll need the assistance of a lawyer.
The lawyer will guide you to understand the Wills' laws in Nigeria, prepare your documents in accordance with your wishes and follow up the entire process to ensure that your will gets implemented the right way.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.