Making a will is associated with death in the minds of the general public. Many people dislike it, but the reality is that having a Will is just as vital as having assets, especially if you come from a polygamous or huge family.

The various statutes applicable to Wills in Nigeria are Wills Act 1837, The Wills (Amendment) Act, 1852, Wills Law of various states, Administration of Estate Laws of the various states, High Court (Civil Procedure) Rules of various states, Evidence Act, Marriage Act, the 1999 Constitution and case laws/judicial precedents.

Thus, this Article seeks to expose the reader to the following:

  1. The meaning of a Will;
  2. Benefits of making a Will;
  3. The types of Will;
  4. Capacity of a person to make Will;
  5. Validity of a Will and,
  6. Custody of a Will.

A Will is a legal document in which a testator names executors to govern his or her estate (assets and properties) after his or her death and instructs how it should be dispersed to the beneficiaries (the people who are to benefit from the Will, such as family and friends).


A testator can do the following with a Will:

  1. Distribute the assets according to his or her wishes to relatives and friends.
  2. Appoint trustworthy executors who will regard the interests of the beneficiaries.
  3. Express funeral and burial arrangements.
  4. Appoint guardians for children.
  5. Limit or remove the application of customary/family rules/traditions
  6. Help remove/reduce animosity amongst family members

There are different types of Will in Nigeria, which are as follows:

  1. Statutory Will

These are wills made by the provisions of the Wills Act, 1837 or the relevant Wills law of the testator's state. An example is a Will made according to Armed Forces Act Cap 420 LFN 2004 for members of the armed services.

  1. Nuncupative Will

These are the oral directives of a deceased person to his heirs, which are to be carried out after his death. It is usually made in anticipation of imminent death. Sometimes, it is referred to as Death Bed Wishes.

  1. Mutual Will

This will is made by two or more persons. They are reciprocal because they make provisions for each of the makers of the will, or an agreement between them to dispose of their properties in a particular way. Mutual wills are not revocable, except with the agreement of the other party.

  1. Privileged Will

This is a will made by certain categories of persons in actual service. An example is a soldier in actual military service, a mariner or seaman being at sea, a crew of commercial airliners. 1A privileged will is valid without the required formalities2. .

  1. Prenuptial/Ante-nuptial Will

This is a will made preparatory to a marriage. It can be made by any of the spouses to be before marriage.

  1. Conditional Will

This is a will executed based on certain pre-conditions that must be fulfilled before the will can take effect.


The capacity of a person to make a Will includes Attainment of Requisite Age, Requisite Mental Capacity.

  1. Requirement of Legal Age

This requirement varies according to the laws of each of the states. E.g. Lagos State provides for 18years3, Kaduna is also 18years4 e.t.c. However, the Wills Act stipulates 21 years.

It is pertinent to note that Section 6 (1) of the Wills Law of Lagos State creates an exception for any seaman, mariner, or crew of commercial airline being at sea or in the air to dispose of his estate though under the age of eighteen years.

  1. Mental Capacity

This refers to the maker of a Will having a sound mind. In OKELOLA V. BOYLE5, Honourable Justice ONU J.S.C observed that no person is capable of making a WILL who is not of sound mind, memory, and understanding, i.e. sound to be capable of forming the testamentary intentions in the Will; his memory must be sound to recall the several persons who ought to be considered as his possible beneficiaries.

A person of unsound mind or a lunatic cannot make a will irrespective of his age. Also, a blind person or an illiterate person can make a valid Will but with a lot of caution when the Will is to be executed. It must be executed strictly by the Law i.e. Illiterates Protection Law.


The following are the key requirements of a valid Will:

  1. It must be in writing;

    A will can be handwritten or typed, no Will shall be valid except it is in writing.
  2. It must be signed by the testator;

    it is signed by the testator or signed in his name by some other person in his presence and by his direction. It can be a person's name, mark, rubber stamp, initial, or thumbprint.
  3. It must be attested to by witnesses.

    The testator may appoint a minimum of two persons to witness his Will by appending their names and signature to the Will.

A will can be kept in the following places:

  1. The Testator's safe box;
  2. At the Probate Registry;
  3. Banks: Banks have vaults for keeping critical objects belonging to clients, including legal papers such as property deeds, certifications, and wills, among other things.
  4. With a trusted friend or relative;
  5. With the Solicitor who drafted the Will;
  6. With an executor of the Will.

However, it is recommended that the Will be preserved at the probate register to facilitate the process of searching for and discovering the Will.


The importance of speaking from the grave cannot be overemphasized, because should a man fail to do this and die intestate, his assets will be distributed in accordance with Administration of Estates Law or his customary law and not according to his wishes.


1 Section 11 of the Wills Act; Section 6 of the Wills Law of Lagos.

2 Section 11 of the Wills Act

3 Section 3 Wills Law, Lagos State

4 Section 6 of Wills Law, Kaduna

5  (1998) 2 NWLR PT.539 PG. 533

6 Section 4 Wills Law, Lagos State

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.