Legal Threshold Of A Valid Will In Nigeria

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A Will is a testamentary disposition usually made by a testator to give instructions to his executors on how he wishes to have his/her assets distributed upon his demise.
Nigeria Family and Matrimonial
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A Will is a testamentary disposition usually made by a testator to give instructions to his executors on how he wishes to have his/her assets distributed upon his demise. There is a lot of skepticism about Will making, but if it is made in compliance with the dictates of the law it is usually beneficial for the administration of the estate of a deceased person.

A major benefit of making a Will is that once it has been established that it was validly made and admitted to probate, the executors of the Will can distribute the estate of the deceased in accordance with the provisions in the Will without interference from any quarters. However, on the flip side, not making a Will makes it easy for certain individuals to unlawfully interfere with the assets in an estate, particularly as regards how the estate should be distributed. These individuals include family members of the deceased, people who ought to be beneficiaries of the Will if one was made, and third parties who are being mischievous.1

One of the major reasons why there are disputes over an estate is mainly because parties suspect, for any reason whatsoever, the validity of a Will that may have been purportedly made in a bid to distribute an estate amongst the named beneficiaries and in some cases the executors of the said Will. Although making a Will does not always guarantee that a dispute will not arise, it serves as the first line of defence in such an eventuality. The question at this stage will then be whether the Will was validly made in compliance with the legal requirements.

In this piece, we aim to evaluate the requirements of a valid Will under Nigerian law.

Meaning of a Will.

A Will is a legal document by which a person may determine what happens to his properties after his demise. It also assists such a person in giving instructions with respect to his properties after death. Ergo, a Will is simply an expression of the intentions and wishes of a person to be carried out after his death. A Will is the creation of a statute, and it is necessary that it should be governed by the provisions of the relevant statute.2

According to Black's Law Dictionary3, "a Will is the legal expression of an individual's wishes about the disposition of his or her property after death; especially a document by which a person directs his or her estate to be distributed upon death."

In Obianwu v Obianwu4 the Court of Appeal described a Will as a "disposition or declaration by which the person making it (the testator) provides for the distribution or administration of property after his death. It is effective on death and is therefore revocable by him up until death. The testator must be 18 years or over and have mental capacity to make a will. The testator must also have the intention to make that particular will. To be valid, a will must in ordinary cases comply with the formal requirements of the Wills Act, 1837 as amended. The will must be in writing, signed by the testator (or someone else in his presence and by his direction), and be attested by two witnesses (the signature must be either made or acknowledged by the testator in the presence of the two witnesses present at the same time)." An equally comprehensive definition of the document had previously been adopted by the Supreme Court in Asika v. Atuanya5, and in the earlier case of Kwentoh v. Kwentoh6, following a long line of cases.

Will Must be in writing

The Wills Law of Lagos State7 provides statutory backing for the power of any person to dispose of his or her property by Will in Lagos State. Section 4(1) thereof sets out the requirements for due execution of a Will. It provides that:

  • No will shall be valid unless –
    1. it is in writing;
    2. it is signed by the testator or signed in the testator's name by some other person in the presence and by the direction of the testator, in such place on the will so that it may be apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as the testator's will;
    3. the testator makes or acknowledges the signature in the presence of at least two witnesses present at the same time;
    4. the witnesses attest and subscribe the Will in the presence of the testator, but no form of attestation or publication shall be necessary.

The above requirements were validated by the Court of Appeal in Ize-Iyamu v. Alonge8 and in Mudashiru v Abdullahi9.

The testator must possess Testamentary Capacity.

In addition to the requirements specified by the Wills Law, the courts have held that at the time of preparing a Will, the testator must be seised of testamentary capacity (i.e. must be of sound mind). In our view, there has not been a more recent exposition on this requirement than in the case of NOLA & ORS v. GRAHAM-DOUGLAS & ANOR10 where the Court of Appeal noted as follows: "Relying on the evidence before the Court, the learned trial Judge found and held that; "A Will though formally executed may be held to be invalid where the testator does not have sound mind memory and understanding or simply put lacks a sound disposing mind. According to the learned authors of Halbury's Laws of England, 2nd Edition at page 37, in order to constitute sound disposing mind a testator must not only be able to understand that he is by his Will giving his property to one or more objects of his regard, he must also have the capacity to comprehend and to recollect the extent of his property and the nature of the claims of others whom by his Will he is excluding from participation. I have already held in this Judgment that the late Chief Donald Graham-Douglas made gift of properties which did not belong to him solely. By giving out such properties in his Will, it is clear that the late Chief Donald Graham-Douglas did not comprehend and did not recollect the extent of his property..." I agree with the foregoing finding and conclusion of the learned trial Judge as based on the facts and legal position in respect of the case, ..."

Thus, to satisfy this pivotal requirement it must be demonstrated that the testator at the time of making his/her Will was aware of it, the contents thereof, and the object of his/her bounty. The persons who can give evidence in this regard are usually the solicitor who prepared the Will, and the witnesses to the Will who must have been present when the testator executed the Will in their presence, they witnessed the Will in his presence, evidence of medical doctor who can testify to the testator's health at the material time, and evidence regarding the general habits and course of life of the testator which he/she was able to do without any help from any person such as going to functions or issuing instruction to his or her bankers among other things.11

Furthermore, information technology can now be leveraged in the process of Will making by recording an audio or video (or both) of the processes leading to the making of the Will.

The test to determine whether a testator has a sound mind was established in the English case of Banks v. Goodfellow12; where the court held that:

"It is essential that a Testator shall understand the nature of the act and its effect, shall understand the extent of the property of which he is disposing, shall be able to comprehend and appreciate the claims to which he ought to give effect, no disorder of mind shall affect his affections, pervert his sense of right, or prevent the exercise of his natural faculties. That no insane delusions shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made."

The above authority was cited with approval by the Court of Appeal in Okolonwamu v Okolonwamu13. In the celebrated case of Okelola v. Boyle14, Onu JSC noted in his lordship's concurring judgment that: "In other words, the Will must be completely free from any suspicious or suspicious circumstances whatsoever, since the existence of any suspicious or suspicious circumstances unless removed, debarred the court from pronouncing against it and so refuse probate for being per testes i.e. irregular."

From the above, a valid Will must be in writing; signed by the testator in the presence of at least two witnesses who must both sign in the presence of the testator, and the testator must have the necessary testamentary capacity and be devoid of an unsound mind or under any undue influence.

The rules governing the making of a Will also stipulate that where the testator is still alive and he decides that he wants to alter the contents of his Will in any way, such testator may either make a codicil to the Will or make a new Will altogether to include any alteration where it is substantial in nature.

A codicil is a supplementary or addition to a Will not necessarily disposing of the entire estate but modifying, explaining, or otherwise qualifying the will in some way.15 The effect of a codicil is to make additions and alterations amongst others to Will. While the effect of making a new Will altogether simply revokes an earlier Will as no two Wills made by the same testator can exist together, thus the Will made later in time takes priority over the former.

Proving the validity of a Will.

Although the presumption of regularity enures for the benefit of a Will that appears on its face to be ex-facie regular Ize-Iyamu v. Alonge (Supra). However, merely making a Will does not make it valid, mainly because there are usually extenuating circumstances in law that can affect the validity of a Will. Therefore, once a Will is challenged, the primary burden of proof of establishing its validity is on the person who propounds the Will and it is when this burden is discharged that the burden will shift to the other party challenging its proper execution (secondary burden of proof) to prove that the Will is not properly executed or that it is tainted with fraud or forgery.16

These circumstances for instance are a lack of mental capacity which includes undue influence, and delusions affecting mental capacity. Other circumstances include the vulnerability of the testator (Blindness) which requires a special form of attestation, Lack of knowledge and approval by the testator, suspicious circumstances, and mistakes and fraud.17

In several decided authorities, the appellate courts have held that the party seeking to establish the validity of a Will has the burden of proof of its validity. In Okelola v Boyle (supra), Ogundare JSC held that: "... Where there is a dispute as to a will, those who propound it must clearly show by evidence that, prima facie, all is in order; that is to say, that there has been due execution, and that the testator had the necessary mental capacity, and was a free agent. Once they have satisfied the court, prima facie, as to these matters, it seems to me that the burden is then cast upon those who attack the will and that they are required to substantiate by evidence the allegations they have made as to lack of capacity, undue influence, and so forth."

Similarly in DAWODU v. ISIKALU & ORS18 the apex court also held as follows: - "By the provisions of Section 1 of the Wills Law of Lagos State: "It shall be lawful for every person to bequeath or dispose of by his will executed in accordance with the provisions of this law, all property by which he is entitled to either in law or equity or at the time of his death." This means that a person who desires to make a Will must satisfy the requirements of the law for the Will to be valid, or else it will be invalid. The burden, however, for the proof of the validity of a document (will), the genuineness or authenticity thereof lies on the person propounding it and once this is satisfied, the burden is cast upon those attacking it: ......."

Accordingly, it follows that a person who seeks to propound the validity of a Will has the burden of proving that the Will in question was in fact made in line with the provisions of the extant relevant law as the case maybe while the person who seeks to disprove or impugn the validity of Will must demonstrate that such a Will has not complied with the legal requirements for validity.

Observations, Recommendations, and Conclusion

At the beginning of this piece, we had stated that one of the real issues that lead to a dispute over the estate of the deceased person is whether such a person made a Will and if so whether the Will was valid. Where a person who feels entitled to the estate of a deceased person suspects or anticipates that no provision whatsoever was made for them under a Will, the only recourse is to challenge the Will.

However, the principles governing the making of Wills and principles of law espoused over the years on this subject show that the jurisprudence on this subject is crystal, and legal practitioners must do more by refraining from accepting instructions to contest the validity of a Will in court if there is no evidence to substantiate the allegation.

It is considering these realities amongst many others that it is proposed that pending when the various legislations in the country will be amended to increase the standard and the threshold for making Wills, there should be some leverage and introduction of technology in the Wills making process in the country for example, video evidence by testators affirming the contents of any Wills made by them.

In the event of any dispute as to the authenticity of this kind of evidence, the relevant forensic analysis may be carried out for presentation before a probate judge who we believe should have summary jurisdiction to determine disputes of this nature and such resolution should not be subject to any appeal unless in cases of clear bias, fraud, and misrepresentation amongst other reasons that could render a decision void.


1 Y.Y. Dadem Property Law Practice in Nigeria 1st Edition at pages 272 – 273. See also Idehen & Ors V. Idehen & Ors (1991) LPELR-1416(SC).

2 ibid at page 227 – 228.

3 10th Edition at page 1833.

4 [2017] LPELR-42676 (CA).

5 (2013) 14 NWLR (pt. 1375) 510 at 528.

6 (2010) 5 NWLR (pt. 1188) 543 at 562.

7 Section 1(1) of the Wills Law of Lagos State 1990.

8 [2007] ALL FWLR, Part 371, page 1570, at 1591.

9 [2011] 7 NWLR Part 1247 page 591.

10 (2019) LPELR-48285(CA).

11 Adebajo v Adebajo [1973] All N.L.R. 297.

12 (1870) LR5, QB 544.

13 [2014] LPELR-22631(CA). Please see also Okeke v Okeke [2019] LPELR-47253 (CA).

14 [1998] 2 NWLR Part 539 page 533.

15 Black's Law Dictionary, Eight Edition page 275.

16 Osa-Obunmwenre & Ors V. Osemwenkhai & Ors (2022) LPELR-57664(CA).

17 Ibid note 1 at pages 276 – 284.

18 (2019) LPELR-46435(SC) see also Ita V. Dadzie (2000) 4 NWLR pt. 652 page 168.

To view original Tope Adebayo article, please click here.

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.

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