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 i
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A CRITICAL APPRAISAL OF ESSENTIALAND FORMAL REQUIREMENT OF A VALIDWILL UNDER THE KADUNA STATE WILL
LAW 1990
BY
SULAYMON TADESE ALAMOL-YEQEENU08SH1058
BEING THE LONG ESSAY SUBMITTED TO THE FACULTY OFLAW, AHMADU BELLO UNIVERSITY, ZARIA, IN PARTIAL
i
FULFILLMENT FOR THE REQUIREMENT OF BACHELOR INLAWS (LL.B.) DEGREE (HONS)
MAY, 2013
ii
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.
iii
iv
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
v
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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 DateProject Supervisor
_________________ _______________ Dr. U.S. Muhammad DateProject Coordinator
_________________ _______________ Dr. A.M. Madaki DateHead, Department of Private Law
vii
_________________ _______________ Prof. Y.Y. Bambale DateDean of Law, A.B.U., Zaria
viii
DEDICATION
MOM AND DAD
You are both special in every way
You both are the reason why I’m so strong
You teach me right from wrong.
And when I’m sad you sing to me that special song.
You tell me everything I need to know.
And when I need you, you’re always there, all set to go
So when I’m 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”
ix
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
x
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.
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.
xi
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
xii
career, I want to say thank you all. May God reward you
all accordingly and exceedingly.
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.
xiii
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.
xiv
xv
TABLE OF CASES
1) Adebajo v adebajo (1973) 4 SC 22
2) Adeyinka v Ibiduni (1939) 4 FSC 280
3) Agidigbi v Agidigbi (1996) 6 NWLR Pt 454 p. 300
4) Andrew v Mortley (1862) 142 ER 1243
5) Arthur v Botienham (1970) 11 Mod. Rep 148
6) Amutsaghan Dafioka & Anor v Couple Edede & 5 Ors
(29/2/68) unreported
7) Adesubokun v Yinusa (1971) 1 ALL 225, (1971) NNLR 770
8) Banks v Good Fellow (1870) IRS QB 549
9) Bolanwu v Nezianya (1998) 5 NWLR Pt 119 P. 46; 1 SCNJ
63
10) Booth v Booth (1926) 42 TLR 454
11) Barry v Buttins (1838) 2 Moo DCC 1480
xvi
12) Brunt v Brunt (1873) LR 3 P & D 37
13) B. Finnis (1936) 5 2 TLR 153
14) Cheese v Love day (1877) LR 2 P & D 78
15) Cole v Cole (1898) 1 NLR 15
16) Cartwright v Cartwright (1793) WL 161, ER 928
17) Casson v Dade (1856) 25 Bran 195
18) Cain v Moon (1896) 2 Q B. 283
19) Danmole v Dawodu (1958) 3 FSC 46
20) Dan-Jumba v Dan-Jumbo (1939) 5 NWLR 33
21) Dew v Elms (1858) 1 Sw & Tr 155
22) Estate of Gibson (1949) 2 ALLE R 90
23) Estate of Fuld
24) Estate of Borthrmann, Caeser and Watmough v Bohrmann
(1938) 1 ALL ER 271
xvii
25) Estate of Kremer 1965) 11 OS J 18
26) Federal Administrator General v Johnson (1960) LLR 291
27) George v George (1964) 2 FSC 88, AL NLR 136
28) Glougstoun v Wakott (1843) 11 LTOS
29) Good of Woodward (1871) 2 P & D 206
30) Groffman v Groffman (1969) 2 ALL ER 108
31) Goods of Chateroft (1948) p. 222
32) Goods of Adams (1972) L. R. 2 PO and D 367
33) Goods of Morton (1820) 3B & Aid 489, 106 ER 740
34) Gil v Dill (1909) p. 157
35) Hack v Newborn 82 ER 834
36) Hall v Hall (1891) 3 Ch 389
37) Harness v Public Trustee (1940) 40 SR (NSIN) 414 p 416
38) Howard v Briathwaite (1812) 1 Ves & B 202
xviii
39) Idehen v Idehen (1991) 6 NWLR p. 259
40) Johnson v Maja (1951) 12 WACA 290
41) Jeckins v Gainsford (1863), Swab Trust 93
42) Jadesimi v Okotie-Eboh (1996) 2 NWLR 429
43) Keigwin v Keigwin (1943) 3, Quit 609
44) Lawal-Osula v Lawal-Osula (1995) 9 NWLR (Pt. 419) p.
259
45) Lowthorpe-Lutwidgeu v Elstone (1893) p. 1
46) Marguess v Winchester (1958) 6 Co Rep 23
47) Mette v Mette (1859) 1 SW & Tr 416
48) Nelson v Akofirunmi (1959) LLR 143
49) Nezianya v Okagbue (1963) ALL 352 p. 10
50) Nwabuoku v Ottih (1961) 1 ALL NLR 487
51) Oghahon v Reg. Trusstee (2002) 1 NWLR pt. 749 p. 675
xix
52) Ogunmefun v Ogunmefun (1931) 10 NRL 81
53) Okelola v Boyle (1998) 5 NWLR Pt. 119 p. 46:1 SCNJ 63
54) Ogiamien v Ogianmien (1967) NWLR 245
55) Osula v Osula (1995) 9 NWLR Pt. 419 p. 259
56) O’Leary v Douglas (1878) 13 LR 323
57) Parker v Felgate (1893) 8 P & D 471
58) Perara v Perara (1901) A. C. 354
59) Public Trustee v Bussell (1993) 30 NWLR 111
60) Perkes v Perkes (1871) 2 P&D 206
61) Re Goods of Savory (1851) 15 Jur 1042
62) Re Watts v Smithers (1939) Ch 1015 p. 1020
63) Randfield v Randfield (1863) 32 LF Ch 668
64) Re Solicitor (1939) 1 QB
65) Smith v Tebbit (1867) LR 1 P & D 398
xx
66) Suberu v Summonu (1957) Vol. 2 FSC 33
67) Signh v Armichand (1948) A. C. 161
68) Sutton v Saddler (1857) CBN’s 547 Vol. 140 ER 671
69) Taiwo v Taiwo (1958) 3 FSC 80
70) The Estate of Randel Deceased (1962) 1 ALL NLR 130
71) Tilley v berg & Berg No. 2 (1945) 3 WWR 81
72) Winte v Nye (1959) 1 ALL ER 552
73) Winchiosea v Wauchope
74) Yinusa v Adesubokan (1971) 1 AL AILR 225, NNLR 79
TABLE OF STATUTES
1) Armed Forces Act, 2004
2) Constitution of the Federal Republic of Nigeria, 1999
3) Evidence Act Cap E14 (2004)
4) Evidence Act Cap E14 (2011)
xxi
5) Wills act, 1837
6) Wills Law of 1958
7) Wills Law of Kaduna State, Cap 163, LFN, 1990
8) Wills Law of Bendel State, 1978
9) Wills Law of Oyo State, 1990
10) Wills Law of Lagos State, 2004
11) Wills Law of Western Nigeria Cap 133, 1959
xxii
LIST OF ABBREVIATIONS
1) AC: Appeal Cases
2) ALL ER: All England Reports
3) ALL NLR: All Nigerian Law Reports
4) Ch: Law Reports of Chancery Division
5) ER: English Report
6) ERNLR: Law Reports of Eastern Nigeria
7) Exch: Exchenquer Reports
8) FSC: Selected Judgement of the Supreme Court
9) KB: Law Reports, King’s Bench Division
10) LLR: High Court of Lagos Law Report
xxiii
11) LR: London Report
12) LRN: Nigerian Law Report
13) LT: Law Times Report
14) NLR: Nigeria Law Reports
15) NMLR: Nigeria Monthly Law Report
16) NNLR: Law Reports of Northern Nigeria
17) NSCC: Nigeria Supreme Court Cases
18) NWLR: Nigeria Weekly Law Report
19) P&D: Law Reports, Probate
20) QB: Law Reports, Queen’s Bench Division
21) SC: Judgement of Supreme Court of Nigeria
xxiv
22) Sw & Tr: Swabey & Transtram’s Reports, Probate &
Divorce
23) TLR: Times Law Report
24) WACA: Selected Judgement of West African
Court of Appeal
25) WNLR: Law Reports of Western Nigeria
26) SCNJ: Judgement of Supreme Court of Nigeria
xxv
TABLE OF CONTENTS
Title Page . . . . . . . . . .
i
Copyright Statement . . . . . . . .
ii
Declaration . . . . . . . . . .
iii
Certification . . . . . . . . . .
iv
Dedication . . . . . . . . . .
v
Acknowledgement . . . . . . . . .
vi
Abstract . . . . . . . . . . ix
xxvi
Table of Cases . . . . . . . . .
x
Table of Statutes . . . . . . . . .
xv
List of Abbreviations . . . . . . .
. xvi
Table of Contents . . . . . . . . .
xviii
CHAPTER ONE
GENERAL INTRODUCTION
1.1 Introduction . . . . . . . . .
1
1.2 Literature Review . . . . . . . .
3
xxvii
1.3 Statement of Problem . . . . . . .
14
1.4 Aims and Objective of the Study . . . . .
. 15
1.5 Scope of the Study . . . . . . . .
15
1.6 Justification of the Study . . . . . .
. 16
1.7 Research Methodology . . . . . . .
16
1.8 Organization Layout . . . . . .
. 17
CHAPTER TWO
DEVELOPMENT OF WILLS LAW IN NIGERIA
xxviii
2.1 Introduction . . . . . . . . .
19
2.2 Definition and Types of Wills . . . . .
. 20
2.2.1 Other Devices of Disposition of Property . .
. . . 28
2.3 Historical Development of Wills Law in Nigeria. .
. . 33
2.3.1 Pre Colonial Era . . . . . . . .
. 33
2.3.2 Colonial Era . . . . . . . .
. 36
2.3.3 Post Colonial Era . . . . . . .
. 38
xxix
2.4 The Kaduna State Will Law . . . . . .
. 42
2.5 Legal Terminologies . . . . . . .
. 45
CHAPTER THREE
FORMAL REQUIREMENT OF VALID WILL
3.1 Introduction . . . . . . . . .
48
3.2 Formal Requirement of a Valid Will under Wills Act
1837 . . 48
3.3 Formalities of Making a Will under the Kaduna State
Will Law . . 53
3.3.1 Writing . . . . . . . . .
54
xxx
3.3.2 Age . . . . . . . . . .
54
3.3.3 Dye Execution . . . . . . . .
55
3.3.4 Attestation . . . . . . . .
. 57
3.3.5 Restrictions on Freedom to make a Will . .
. . . 62
CHAPTER FOUR
ESSENTIAL REQUIREMENTS
4.1 Introduction . . . . . . . . .
73
xxxi
4.2 Testamentary Capacity . . . . . . .
74
4.3 Sound Disposing Mind . . . . . . .
77
4.3.1 When Necessary . . . . . . .
. 83
4.3.2 Knowledge and Approval . . . . . .
. 87
4.3.3 Effect of Supervising Insanity . . . .
. . 89
4.3.4 Periods of Lucidity . . . . . .
. . 89
4.4 Recovery After Incapacity . . . . . .
. 92
xxxii
4.5 Presumption of Sound Disposing Mind . . . .
. 92
4.5.1 Evidence to Support Evidence of Sound Disposing
Mind . . 95
4.5.2 Delusion . . . . . . . . .
. 99
CHAPTER FIVE
VITIATING FACTORS
5.1 Introduction . . . . . . . .
180
5.2 Vitiating Factors . . . . . . .
109
xxxiii
5.2.1 Undue Influence . . . . . . .
109
5.2.2 Others . . . . . . . .
114
5.3 Revocation of Will . . . . . . .
118
5.3.1 Revocation by Destruction . . . .
. 120
5.3.2 Subsequent Will or Codicil . . . . .
. 124
5.3.3 Subsequent Marriage . . . . . .
127
CHAPTER SIX
CONCLUSION
6.1 Summary . . . . . . . . 135
xxxiv
6.2 Findings . . . . . . . . .
138
6.3 Recommendation . . . . . . .
139
Bibliography . . . . . . . .
141
xxxv
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
1
in the deceased’s 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 ensure that the document
is not a fraud but is the honest expression the
testator’s 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
1 Section 6 cap 163 Laws of Kaduna State (1991).2 Section 7 cap 163 Laws of Kaduna State (1991).3 Section 8 cap 163 laws Kaduna State (1991).
2
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 person’s 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
3
undue influence, 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
4
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
5
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
4 Abayomi, K. Wills Law and Practice Mbeth and Associates (Nig) Ltd, Lagos(2004)5 Ibid
6
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 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 the6 Nwabueze B. “power of Testamentary Disposition in Bendel and WesternState of Nigeria’’ (1992). N. S. vol. 1122.
7
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 capacity7. 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.
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.
7 Op. cit
8
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 ofsection 1 of this Law where a persondies and is survived by any of thefollowing persons.(a) The wife or wives or husband ofthe deceased; and(b) A child or children of thedeceasedThat person or those persons may applyto the court for an order on the grandthat disposition of the deceased estateeffected by his Will is not such as tomake reasonable financial provision forthe applicant.‘(2) In the section “reasonablefinancial provision” in the case ofapplication made by virtue ofsubsection (1)(a) of this section by the husband orwife or wives of the diseased except
8 Cap 163 laws of Kaduna State (1991)
9
where the marriage with the deceasedwas subject of a decree of judicialseparation in accordance with anycustomary Law and all the date of thedeath the decree was in force and theseparation was continuing, means suchfinancial provisions as it would bereasonable in all the circumstances ofthe case for husband or wife wives toreceive, whether or not that provisionis required for his, or hermaintenance”.
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.
9 Sagay, I.E; Nigerian Law Of Succession, Principle, Cases, Statutes andCommentaries; Mathouse Press Ltd (Nig) Lagos, (2006) P. 132
10
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 has been
accurately observed by Utuama, give rise to endless
litigation, not only involving the washing of the dirty
10 Op. cit.
11
linen in public11 but also holding up the distribution of
the testator’s 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 by11 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.
12
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
deceased’s estate In short there is no point in such a
person making a Will. One other thing this provision in
the Oyo State Will Law (1990) has done is to effectively
override the Supreme Court’s 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
12 Sagay, I.E. op.cit p. 132
13
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.
13 Garrow and Wills, Law of Will and Administration, Butterworth, Welhugton(1960) p.214 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 byrelevant provisions of the various High court Laws and in the case of
14
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
Western Nigeria by the law of England (Application law – cap. 60, 1959 lawof Western Nigeria.16 15 (1936) 5. 2TLR. 15317 Unreported, High court of Midwestern State Sapele, Judicial division(Ekeruche), 29/2/68.
15
because it did not bear illiterate testator’s 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.
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 one’s own
production or as having one’s authority or consent by
affixing or having affixed one’s name, initials or
recognized mark.
16
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.
17
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
18 In Re Goods of savory (1851) 51 Jur. 104219 In B. G lover (1847)11 Jur. 102220 Jerking V. Gains ford (1863), Swab V. Trist 9321 In B cook (1960) I WLR 353.22 (1948) P. 22223 Wills law of Kaduna State
18
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
testator’s 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
testator’s signature could also validity be “at or after,
or following or under, or beside, or 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
24 Section 7 of the Wills law. Of western Nigerian
19
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
25 The Evidence Act cap E. 14(2004)26 Section 258 of the Evidence Act cap. E14 (2011)
20
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 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
27 Section 5(a), section. 258, S. 84(i) of the Evidence Act E. 14 2011
21
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.
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
22
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) Feature factors that vitiate or revolve Wills.
1.5 Scope of the Study
28 Cap 163 Laws of Kaduna State (1991)29 Wills Act 1837
23
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
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 client’s 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
24
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.
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
25
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
26
Chapter five deals essentially with vitiating factors and
revocation of a Will.
Chapters six anchors this research by summarizing the
work, findings and include the work.
27
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
28
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 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. Ibidunni30, 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 Black’s law Dictionary defines a Will as follows:
30 (1959) 4 FSC 280.
29
“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 person’s 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, whereby a person makes a dispose of his
property (real and personal) to take effect after his
death.31
31 Black’s law Dictionary, sixth Edition (1994) at P. 1598.
30
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.32
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.33
32 Ibid.33 Adubi, C.O; Drafting, Conveyancing and Will, The light house publicationcompany Ltd. Lagos (1995) page 107
31
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
otherwise known as his executors, who administer his
estate in accordance with the wishes manifested in the
Will.34
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 that34 Abayomi, K. Wills law and practice. Mbeth and Associates (NIG) Ltd,Lagos (2004).
32
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 force35 in order to
be valid; it must conform with the requirement prescribed
in the relevant statute. Non-compliance with any or all35 Will Act 1837, Wills Act Amendment Act 1852, Wills law of the oldWestern Region of Nigerian, 1958. Wills Edict 1990 of Lagos stsate, KadunaWill Law 1991. p.6.
33
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 circumstance36 such as when they are
not contradicting an existing legal Will.
36 Williams on will (9th ed.), 2008 at p.21
34
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
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.37
According to the view, if a Will complies with the law,
37 Harney The Law and Practice of Nigeria and Succession (1664) at p.45.
35
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.38
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.
38 Okoro custom laws of eastern Nigerian and Associates (Nig) Jucial Rulescovering their Applications.
36
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
37
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 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.
38
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 Will39.
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 Will39 Sagay, I.E; Nigerian Law of succession, principles, cases, statutes andcommentates. Mathouse pres Ltd (Nig) Lagos (2006) p.132
39
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 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 son40
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 testator’s
signature and intent, but in many jurisdictions,
holographic Wills that have not been witnessed are
40 Ibid Sagay, I.E p.169.
40
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.
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
41
at sea, though in both cases the validity of the
holographic will expire at a certain time after it is
drafted41.
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
41 http://www.academicjoemals .org/JLCRClast accesed 29 september 2011).
42
generally to survive the testator to be able to take
otherwise the gift lapses with a settlement, the interest
of 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 beneficiary’s interest
Will form part of the beneficiary’s estate.42
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 B’s
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
42 Abayomi, K. op. cit at 3
43
given above, if B fail to make any nomination, the funds
are then paid directly to the representative of the
deceased.43
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.44
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
43 lbid, Abayomi K. at p. 344 http://en.wikipedia.org/wiki/Donation-cause (2 feb 2013).
44
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. Moon45 where Lord Russell of
killowen said;
For an effectual donation mortis causa,three things must combine. First, thegift or donation must have been incontemplation, though not necessarilyin expectation, of death; secondly,there must have been delivery to thedonee of subject-matter of the gift,and, thirdly, the gift must be madesuch circumstances as show that thethings is to revert to the donor incase he should recover.46
Given later formulation of the relevant conditions it
could appear that some modification of this is required.
45 (1896) 2 Q.B.28346 Ibid. at P. 286
45
The requirement can now probably be better summarized as
follows:
(i) It must be made in contemplation, although not
necessarily in the expectation, of the donor’s death,
(ii) It must be made subjected to the condition that it
will only become indefeasible in the event of the
donor’s 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
46
getting access to the property, or delivery of what
have been the essential indicia of title.47
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.
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
47 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;
47
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 inter-vivos 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
48
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.48
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 deceased’s 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 whishes48 Aboyomi, K. Op. cit p.4.
49
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,49 Bello J. (as he then was) held that the
testator as a Muslim have 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.
49 (1970), unreported SC25/70 of 17/670; 111 144.
50
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 father’s estate
51
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 husband’s estate. NEZIANYA v.
OKAGBUE.50 The supreme court held that in accordance with
Onitsha customary law, the widow cannot succeed to her
late husband’s 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.51. 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.
50 (1963) 1 AllNLR 35251 (1967) NMLR 247
52
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
property must sufficiently identified It must not be
community or family property OKELOLA v. BOYEES.52
“In the Yoruba society, a man maybequeath his estate the way he feels,however, the children are entitled tohis real property to the exclusion of
52 (1998) 5. N.W.L.R. (pt119) 46
53
other blood relation. They shareequally 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
54
of property, provided the formalities as spelt out in the
Act are complied with. Section 3 Will Act 183753 state
“It should be lawful for every personto device bequeath or dispose off hisWill executed in manner hereafterrequire, all real and are personalestate which he shall be entitled toeither at law or kin equity at time ofhis 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 1937.54 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
53 Wills Act, 183754 Wills Act, 1837
55
the Wills law of 1958.55 Some of the provision it took
into account was the customary. Laws of inheritance.
S.3ci)56 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 valid. APATIRA AND
ANOTHER v. AKANDE AND OTHER57, 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
55 Wills law of 195856 Wills law of Bended state, 1978.57 (1944) 7. NNLR 149
56
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, it’s 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
57
three systems of laws is to be applied in a certain
situation.
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 (Non-
customary) 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
58
states that were created out of former western region.58
The applicable law is the Wills law.59 By virtue of the
provision of the Applicable laws Edict of 197260 Lagos
state adopted the Western Nigerian Law. On the other
hand, the rest of the country61 consisting of the of the
states from Northern and the Eastern part, still applies
the English Wills Act 1837 and the Wills Amendment Act
185262.
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
58 Oyo, Ondo, Ogun, Osun, Ekiti, Edo and Delta States.59 Cap 133, laws of Western Nigeria 1959.60 Noll of 197261 With the exception of some few states that have enacted their own WillsLaws in line the laws of Western Nig. 195962 This statute qualifies as statute of general application is Nigeria.
59
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.63 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,64 The fact63 Idehen v. Idehen (1991) 6 NWLRP. 259 and lawal-Osula v. Lawal Osula(1995) 9 NWLR. (pt.419) p. 259 where the supreme court. Discussedextensively the legal implication of the provisions of section 3 (1)s ofthe Will law of Bendenl state applicable to Edo state64 (1944) 17 NLR 149
60
that the testator devised all his property as against
one-third as prescribed in Islamic law, was a major
factor in the court’s determination that English law
govern, for this was a clear indication of the intention
of the testator. Also in NWABUOKssU v. OTTIH.65
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.66
It is necessary to examine the laws that govern Wills in
Nigeria
65 (1961) I AII NLR 487.66 Saga, I.C; Op. cit 125
61
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 1st 1900.
They therefore part of Nigeria’s 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.
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.
62
d) Customary law and Islamic law are also sources of
Nigerian Wills law.
2.4 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
63
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 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
64
for those “near-related”67, also small Wood, small Wood v.
st martins Bank Ltd.68 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)69. The Wills law evolved from the English Will
67 Gurin A.M (2008). An Introduction of Islamic law of SuccessionTestate /Intestate Zaria: Jodda press Ltd68 (1951) CH 36969 Esposito J.L (1991) Islam: the Straight path. Oxford: Oxford Universitypress
65
Act, 1837, which is a statute of Christian religion
(Imhano be 2002,70 Maliki 2005,71 Gurin 200872)
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.
70 Imhanobe S.D (2002). Legal Drafting and Conveyance. Abuja: Secure TitlesPublisher71 Maliki A.S (2005). A Comparative Appraisal of Islamic and Statutory Lawson the Devolution of Property after Death Zaria. An Unpublished L.L.B.submitted to the faculty of Law, Ahmadu Bello University, Zaria.72 Gurin A.M. (2008). An Introduction to Islamic Law of Succession: Zaria:Jodda Press Ltd.
66
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. 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
67
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:
68
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."
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.
69
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 executor or administrator of an estate
70
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)".
71
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 immovable’s governed by the lex situs and the
72
case of movables governed by the law of the domicile of
the testator at the time of his death.73
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 shallbe in writing and executed in mannerhereinafter mentioned; (that is to say)it shall be signed at the foot or endthereof by the testator, or by someother person in his presence and by hisdirection; and such signature shall bemade or acknowledged by the testator inthe presence of two or more witnesspresent at the same time, and suchwitnesses, but no form of attest andshall subscribe the Will in thepresence of the testator, but no formof attestation shall be necessary.”74
73 Sagay I.E; Nigerian law of succession, Principle case, statutes andcommentaries; Mathuse press Ltd (Nig) Lagos, (2008) p. 132.74 Wills Act, 1837.
73
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 lawunder the Decree shall be valid fordisposing of any money or personalproperty which is due or belongs to himat his demise if it is in writing.”
74
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
constitution75 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.76 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,
75 199 constitution of the federal Republic of Nigeria.76 Animagham and Oyeneyin: Law of Succession, Wills and probate.
75
printed or lithographed, and according to a learned
author, either in whole or in part,77 typed or printed
parts of a Will may be completed or complemented with
ordinary writing,78 either in into or pencil.79 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.
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.80 The Act extends to all testamentary
77 Williams on Wills 9th Edition (2008) at p.75.78 Smithers, Re Watts v. Smithers (1939) ch. 1015 at pg. 1020.79 In the Goods of Adams (1872) L.R.2 po and D 367.80 S.3 of Wills Act, 1837.
76
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.”81
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.82 By the early
nineteenth century, the rules had become complex, with
different rules for formalizing wills of real and81 Jarman, T. (1844). London: A treatise on Wills, Sweet, (Google Books)Vol. 1, p.2682 Mirow, M.C. (1994) “Last Wills and testaments in England 1500-1800.” InVander indent, J. (ed.) Acts (a) cause de mort: Acts of tast Will,Brussels: De Buek Universite; pp 47-88
77
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 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 time83. The bill was introduced in
the House of Lords by Lord Langdate.84 Though the
requirement that a will be in writing stems from an
attempt to frustrate fraud, an apparent exception to the
83 The times, march 12, 1836 p. 4, C01F.84 The times, march 12, 1835, p. 3, C01D
78
requirements for the formal execution of the Act under
section 9 of Wills Act, 1837, is a secret trust.85
A minor, a person under the age of 18, cannot make a
valid will86 unless they are a member of the armed forces
on active service or a mariner at sea.87 These provisions
were clarified by the Wills (soldiers and Sailors) Act
1918. There is no requirement to publish a will.88 If any
of the witness was, or subsequently becomes, incapable of
proving the will, that alone will not make it invalid.89
Alterations must be executed in the same manner as a
will.90
3.3 Formalities of making a will under the Kaduna State
Will Law85 Wilde, D. (199). ‘Secret and semi-secret trusts: justifying distinctionsbetween the two conveyance and property Lawyer: sep-Oct, 366-378.86 section 7 of Wills Act, 1837,87 section 11 of Wills Act, 1837.88 S.13 of Will Act 1837.89 S. 14, Ibid.90 S 21, Ibid.
79
It is this writer’s 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 one’s
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
80
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
81
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.91 Section 9 the Wills Law of Kaduna State exempt
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
testator’s 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
91 Section 6 of the Kaduna State Wills Law.
82
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
83
that the witness should know that the document is a
Will.92
Presence and Effect of Presence of Witness.
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.93
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
92 (1943) 3 Quit 603; 163 ER 841.93 Section 7(c) of the Kaduna State Wills law 1990.
84
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. Dade94 in 1781 a testatrix drove to her solicitor’s
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
the witnesses through the window of the office but at the
very moment when the witnesses were signing the horses
94 (1781) 28 ER 1010.
85
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,95 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
95 (1686) freem. Ch. 95; 121
86
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 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
87
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. George96
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 suddenly
summoned in emergency to see to his young son. He left
the scene; thirty minutes later, he came back and
96 (1964) 2F.S.C.88
88
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 other97
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.
97 Abayomi, K. op. cit at 52.
89
However, it does seem that a blind person cannot witness
a Will.
In the Estate of Gibson,98 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 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:
98 (1949) 2 AllE.R.90.
90
“Is mere presence without the facultyof sight enough to constitute a witnessfor the purpose of S.9 of the 1837 Act?Is an act which the witness cannot seedone 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.99
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 beneficiary
99 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.
91
nor his spouse can take under any Will witnessed by
him.100 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 beneficiary’s signature superfluous. One of the
leading authorities on this point is the case Rand field
v. Rand field.101 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.102
The rule applying to the gifts given to attesting
beneficiaries and their spouses has no application to the
following cases:100 S. 11 Wills Edict 1990 of Kaduna, S.10 Will Edict 1990 of Lagos Stateand the provision to S.10 Wills Edict. 1990 of Oyo State.101 (1863) 32 L.J.Ch. 668.102 The provision to S.8 Wills Law 1990 of Kaduna State and S.8 of LagosState out proviso to S.10 Will Edict 1990 of Oyo State
92
(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.103
(ii) Where the witness signs the Will not as a witness but
merely to show that he agrees with the contents of
the Will.
(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. Bestwick104 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.
103 Re Limond (1915) 2 Ch. 210104 (1881) 6 Q.B.D.311.
93
(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
94
restriction. Is it, 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.
95
(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 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 testator’s
dependents by the testator in his Will. Arguments and
debates started on whether it was right to allow this
96
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
one’s 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
97
estate, then that may well have to come from the general
tax payer.
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) Incidence of customary law
(b) Religious reasons
(c) 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. AGIDIGI105 that
under Benin nature law and custom, the eldest son of the
105 (1996) 6 NWLR part 454 p. 300
98
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 OGBAHON v. REG.TRUSTEE106 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. YINUSA107. It was held106 (2002) INWLR part 749 p. 675107 (1971) IALL NLR 225; (1971) NNLR77
99
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 testator’s 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
persons) law cap 163 laws of Kaduna state of Nigeria,
contains provision similar to section 3(1) of the Wills
100
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
101
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
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
102
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
103
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
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 tetstator’s
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,108 Idehen, Osula v. Osula.109
108 (1967) IALLN.L.R. 1991109 (1995) 9 NWLR pt 419 page 259.
104
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.
Is it, therefore, right to deny a man the freedom to
dispose of his property in the way and matter he chooses?
105
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,110
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
110 (1996) 2 NWLR (pt. 429)
106
hardworking testator by Idlers, alaye’s 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 testator’s family, Kolawole JCA in Dan-Jumbo111 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 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 can’t he do
111 (1989) 5 NWLR 33.
107
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,112 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 testator’s will, the Supreme
Court still held the devise to be contrary to the Bini
Customary Law on Igiogbe. In the circumstances, I am of
112 (1995) 9 NWLR pt.419, p.259.
108
the 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.113
113 Obiora A.E., Limits f a testator on freedm of will testament. (2013)http://www.nigerianlawguru.com. 2nd April 2012.
109
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 deceased’s 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
110
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.
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
111
know who are members of the immediate family or other
“natural objects of his/her bounty.114
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.115 For instance, section 4(1) Kaduna state
Wills law 1990 state:
“It shall be lawful for every person tobequeath or dispose of by his Willexecuted in accordance with theprovision of this edict all propertyto, which he is entitled either in lawor in equity at the time of hisdeath”.116
114 Gerald N. Hill and Kath leen T, Hill. Legal Dictionary: TestamentaryCapacity (1981-2005). http:llwww. The freedictionary.com. 27th march 2013115 Abayomi, K. Wills law and practice Mbetth and Associate (Nig) Ltd, Lagos(2004) p. 71116 Section 4(1) Kaduna State Wills law, 1990
112
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.117
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.118
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.
117 Section 3(1) of the Will law of Oyo State118 Section 8 Will Edict Oyo; section 6 Wills Edict Lagos; section 9 Willslaw Western Region. And section / Wills Act 1837.
113
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.119
No wonder therefore, writers, the courts and Judges use
the term testamentary capacity indiscriminately.120 It has
however been suggested that aside from testamentary
capacity, there is also concept of testamentary power.121
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
119 Abayomi K. Op. cit p. 72120 Idehen v. Idehen (1991) 6 NINLR (pt-198) 382, 421, Lawal – Osula (1993)2 NWLR pt 274) 157121 Nwabueze B: “power of testamentary Disposition in Bendel and WesternState of Nigeria “(1991) J.N.S. vol. l No 1122. G. Abayomi K. op. cit p. 72
114
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.122
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
122 Abayomi K. Op. cit p. 72
115
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 Muslim to dispose of property in his will in a manner
contrary to Islamic law.123 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
123 For a trenchant criticism of uncontrolled freedom of testamentary power:M.O. Adesanya, “A case for the Restraint of Testamentary power in Nigeriavol.5 Nos. 1& 2, Dec.1974, Nig. J. of contemp.
116
who are the “natural objects of bounty” (wife and / or
children), at the time of making a will.124 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.
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.125
The testator must understand the nature of the Act he is
performing and its effect. No disorder of mind shall
124 Gerald N. Hill and Kathleen T. Hill op. cit.125 Williams on Wills 5th Ed op. cit p 25.
117
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.126
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
126 Banks v. Good fellow (1870) L.R.S. QB549 per (oekbburn C) at p. S65.
118
of his property by Will. Indeed any Will made under these
conditions ought not to stand.127
A simple statement of the essentials of sound disposing
mind can be found in the very early case of Morquess v.
Winchester128 therein, it was stated that:
“It is not sufficient that the testatorbe of memory when he makes his Will toanswer familiar and unusual questionbut he ought to have a disposing memoryso that he is able to make adisposition of his land withunderstanding 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;
127 Supra.128 Marquess v Winchester’s case (1958) 6 co. Rep. 23.
119
i. that he was pursued by spirits, and
ii. 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 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.
120
The case of Federal Administrator-General v. Johnson129 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
129 (1960) L.L.R. 29)
121
Plaintiff was named as executor in the Will. The
defendants were two of the testator’s children who
opposed the grant of probate on the grounds, inter alia,
that 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.
122
For the defense, the medical doctor who examined and
admitted the testator on 20th 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;
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.
123
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 16th 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 testator’s 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
124
provision in the Will for the education of his grand
children and grandchildren.
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.130
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.
130 Williams and Murtimer, Executing Administrators & Probate (1970) p.40.
125
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 Perara v. Perara.131 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.
131 (1901) A.C.354
126
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.132 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
132 (1893) 8P and D 471.
127
children’s 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.
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.
128
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 thislady (a Mrs. Fleck) to sign it “and shereplied” Yes”
Three people present testified to corroborate the
doctor’s 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.
I gave my solicitors instructions to prepare a Will
making a certain disposition of my property. I have no
129
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,133 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. Felgate134
should be applied with the greatest caution and reserve133 (1948) A. C. 354134 (1893) 8 P and D 471.
130
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 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
131
Will which will not thereby represent the wishes and
approval of the testator.
The House of Lords in Wintte v. Nye135 Suggest as two
significant features of the rule-knowledge 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.
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 Nye’s case suggests that the135 (1951) 13 WACA 290
132
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.136 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 therules is evidential; it is concernedwith the approach required of the courtto the evidence submitted for itsconsideration. In the ordinary case,
136 (1945) 3 W.W.R.81
133
proof of testamentary capacity and dueexecution suffice to establishknowledge and approval but in certaincircumstance, the court is to requirefurther affirmative evidence. Thecharacter of the rule as evidentialemerges clearly from the speeches ofviscount Simmonds and Lord Reid (1959)I All E.R.552 at p. 557, (viscoutSimmonds) and pp. 560 and 561 (LordReid). Both their Lordships reliedstrongly on the classical statement ofthe rule to be found in the Judgment ofBaron parles in Barry v. Butlins (1838)2 moo. P.C.C. (480)”137
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
137 162 E.R. 621
134
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.138
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.139 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 medical proof. Mental capacity is
a relative thing; a person who is not competent enough to138 Abayomi K. Op. cit p. 83139 Gerald N. Hill and Ktthleen T. Hill op. cit.
135
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 one’s 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,
136
an otherwise incapable testator may legally make a will.
This rule of law is supported by the case Cartwright v.
Cartwright.140
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.
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,
140 (1793) 1 Philim 90; vol. 161E .R. 923.
137
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 Cartwright’s 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
138
carried it into execution with property and without
assistance.141
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. Bokenham142 puts the matter succinctly
when he says:
“…If a man be non-compose, and not inthe right senses at the time of makinghis Will, though he become a man ofunderstanding and sound judgment andmemory, yet the Will is a void. Will byno means made good; because he wanted
141 Abayomi K. op. cit p. 84142 11 Mod Rep 148.
139
the disposing power at the time ofdisposition which was the time ofmaking the Will”143
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.144 The
court’s altitude in this respect is fair and logical,
otherwise the propounded of a Will will always and as a
matter of court, have to 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.145
143 Ibid, at p. 157144 Wellesly v. Vere (1841) 2 curt. 917145 Sutton v. Sadler (1841) 3 CBNS57; vol. 140 E. R. 671
140
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) it is not irrational on its, and
(ii) 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 willundertakes to satisfy the court ofprobate that the testator made its andwas of sound and disposing mind. Butvery-slight proof of this, where thefactum is regular, will suffice, andthey who impeach the instrument mustproduce their proof should the actor(the party propounding) choose to restsatisfied with his prima facie case
141
after an issue tendered against him. Inthis case, the proof has shifted to theimpugner, but his case may easily hackagain”146
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.147
Button’s 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
146 Sutton v. Sadler (1857) 3 CBNS57; vol. 140E.R671.147 Ibid at p. 674
142
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,
find in favour of the Will and in each case the
presumption of competency will prevail.148
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.149
148 Ibid.149 Ibid 1 at p. 676
143
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.
144
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.
Cartwright150 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.151
150 Supra at pp. 83-84; see also Johnson v. Maga (1951) 13 WACA 29. 100151 Booth v. Blundell (1815) 19 ves 494 at p. 504; Howard v. Braith wait(1812) 1 ves & B 202.
145
Evidence of conduct before and after the actual making of
the Will is admissible. In the Johnson v. Maja152, 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 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 Adebajo’s 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
152 (1951) 13 WACA 290.
146
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.
147
instructing that his Will, should be that his bills
should be settled in certain repairs affected on his
properties in England.
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. Tebbitt153 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
153 (1867) L.R.I.P & D 397
148
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 to
the contrary. Perhaps, this is why Taylor C.J in the
Adebajo’s case refused to be persuaded by the expert
149
evidence of the doctors who gave evidence for the
defence154 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) A belief of facts which no rational person would have
believed;155
(ii) A pertinacious adherence to some delusive idea in
opposition to plain evidence of its falsity;156
154 (1973) 4 Sc 22.155 Persir john Nicoll in Dew v. Clerk (1826)3 Add .79156 Ibid.
150
(iii) The belief of things as realities which exist
only in the imagination of the patient.157
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.158
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
157 per lord brougham in warning 6 Moo P.C.C. 341158 Williams on Wills 5th Ed (2001) p.28
151
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.159
To recapitulate, the testator suffered from two delusions
which disturbed his mind:
(a) that he was purchased by spirits, and
(b) 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
159 Supra pp. 73-74.
152
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.160 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.
160 Supra p.90.
153
The will was contested by Mrs. Sarah Tebbilt, the
testatrix’s 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
154
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.
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 doctor’s brother.
Sir J.F. Wilde held.
“The conclusion of the court as to thevalidity of this will must have beenmade apparent. I think it cannot stand-in cannot reconcile the provedhallucinations of the testatrix in thematter of religion with the action of asound and healthy mind on the one hand,and other, I find them to be just as a
155
diseased mind is known to engender. Ican find no excuse or explanation inher temperament or general characterfor her absurdities on this specialsubject”161
His Lordship Concluded:
“I find clear fraise of insanity at onetime and insane aversions at another –alarge fortune ill husband estranged,extravagant benefits on those about herthrough strangers in blood, a secludedlife, and a submission to the will ofanother, apparently found on thespecial subject of her hallucinations,for which the external and visiblerelations of the parties can hardlyaccount. A life with such features isnot calculated to rebut the conclusionsto be drawn from her proved decisionson the subject of religions”162
The court pronounced against the will without any
hesitation.
161 (1867) L.R 1P$5 398 at p. 436.162 Ibid
156
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 Tebbilt’s 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,163 the court found as a fact that
the testator suffered from delusions, that his delusions
163 (1938) 1 AII E,R.
157
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 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.
158
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.
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.
159
Decision may be supported on the grounds that the
testator’s 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
160
anything which the court was satisfied was not brought to
the knowledge and approval of testator. He concluded:
“I conceive that am doing no more nowin declaring for the condicil without 2than I should be doing in deleting fromthe condicil something which I believewas never brought to his knowledge andapproval as a same balanced Man”164
164 ibd at p. 282.
161
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
person’s estate. It is also the process of proving the
validities of a person’s 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.
162
On the other hand a will is revocable any time before the
testator’s 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
way’s. 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.
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
163
without pressure from any quarters whatever. In HALL v.
HALL.165 Sir J.P Wilde stated inter alia thus:
…A testator may be led but not drivenand his will must be the offspring ofhis own volition and not the record ofsomeone else a will induced by theundue influence third part is liable tobe 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
165 (1891) 3 Ch. 389
164
exerted as to overpower the volition of the testator even
though no force is used or threatened.
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
165
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 sufficient
proof of undue influence there must in addition be
positive proof of coercion overpowering the volition of
the testator.
166
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
proved166 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
166 Kole Abayomi, Wills Law and practice Mbeyi and Associates Nig Ltd, Lagos(2004) page 110
167
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 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. MAJA167 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
167 (1951) 13WA CA290
168
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.
169
The mere proof of a relationship in not enough to sustain
an allegation of undue influence. In TILLEY v. BERG168 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. NYE169 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
168 (No. 2) (1945) 3 WW81169 (1959) 1 ALL ER 552: 1 WLR 284
170
undue influence. It was held that as far as the gift to
the solicitor were concerned, they were not valid.
In HACKER V. NEWBORN170 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.
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
170 82 ER 834
171
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.
172
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.171
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 it171 Gerald N. Hill and Kath T. Hill. Legal Dictionary: Testamentary Capacity(1981-2005) http://www.thefreedictionary.com. 27th march 2013
173
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 testator to bring home
to the testator’s mind the effect of provision in the
will giving to the prepare a large interest under the
will amount to fraud.
Mistake
174
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
SOLICITOR172 a solicitor benefited from the will of his
Client and the will was declared invalid. His name was
172 (1939) 1 QB.
175
later struck of the roll of solicitor because his gift
under the will was very large, which gave room for
suspicious.
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
testator’s 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
176
execution. As is stated at page 47 in the 21st edition of
Tristam and (vote on Probate practice:
If the testator be blind or apparentlyilliterate ignorant, the court requiresto be satisfies that be had knowledgeof its contents. Unless suspiciousattaches to the document e.g. where itis signed by mark or were the signatureindicates extreme feebleness, thetestator’s execution is sufficientknowledge and approval.
In AGIDIGBI v. AGIDIGBI173, 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 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.
173 (1996) 6 NWLR part 454 p. 300.
177
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.”174
5.3 Revocation of Will
A will is ambulatory, which means that a competent
testator may change or revoke it at any time before his174 Unreported, Suit No. LD. / 634/70 delivered on 22/6/72 per Adefarasin J,High Court of Lagos.
178
death. Revocation of a will occurs when a person who has
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 testator’s intent
to revoke the will. Statements made by a person at or
near the time that he intentionally destroys his will by
179
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 testator’s will has not been revised
since the change in marital status, any disposition to
the former spouse is revoked.
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
180
A will can be revoked by destruction.175 There are two
elements invoked kin this process,
(a) The act of destruction and
(b) 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.”176
The law on revocation by destruction with intent is
uniform throughout the states of the Federation. Section
16 of the Wills Law177 provides that:
No will or codicil, or any part thereofshall be revoked otherwise than asprovided by section 14 or any otherWill or Codicil executed in manner herein before required or by some writingdeclaring an intention to revoke thesame and executed in the manner in
175 Section 20 Wills Act; section 16. Cap 163 Laws of Kaduna state 1991176 Per James, L.J. in Cheese v. Lovejoy (1877) PD. 251 at 253.177 Cap 163 Laws of Kaduna State 1991.
181
which a will is here before required tobe executed or by burning, tearing orotherwise destroying the same by thetestator or by some persons in hispresence and by his presence and by hisdirection with the intention ofrevoking 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,178 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 and178 Ibid
182
kept it in the kitchen until the testator’s 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.179
However, destruction need not be total. Cutting out,
burning not or the complete obliteration of the
testator’s or witness signature would be sufficient. In
the Goods of Morton,180 where the signatures of witnesses
were scratched out, this was held to constitute a valid
revocation. By contrast, in Doed. Perkes v. Perkes,181 a
testator being angry with one of the beneficiaries of
this will, commenced tearing up the will with the
179 (1887) 12PF 141180 (1820) 3B & Ald. 489; 106 E.R. 740181 (1893) 8 P & D 471.
183
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,182 only the first lines were revoked. By
contrast, in Leonard v. Leonard,183 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 by182 (1871) 2p & D 206183 (1902) P. 243.
184
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,184 a will was
turn by the testator’s wife in fit of temper, in the
testator’s 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,185 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
184 (1909)p .157185 (1965)110 s. j. 18
185
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 testator’s will
is missing at his death, or if it found destroyed also at
his death
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.
186
A testator, who wishes to revive a revoked will, may do
so by re-execution with intent to revive186
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
186 see. 18 Kaduna State wills law 1991
187
text of the will before such word could be held to revoke
previous will.
Williams on will accordingly stresses:
“The insertion of such word as last andonly Will’ does not necessarily workare vocation of all previoustestamentary instrument. It is onlywhere it is clear from the generaltenor of the last Will that thetestator did not intend the earlierWill to remain in operation that it isrevoked”.187
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
testator188 or that the two Wills may relate to different
187 Williams on Wills 9th Ed. (2008) at p. 129188 Lowthorpe-Lutwidge v. Elstone (1893) P.I which was criticized in theLutwidge case.
188
properties of the testator say in two different
countries.189
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.
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.
189 O’Leary 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 arepetition of the earlier one
189
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 testator’s 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
190
for example, by date, the subsequent codicils may not be
revoked.190
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
190 Williams On Wills 9th Ed (2008) at p. 132. See also farrer v. st.Chatherine’s college Cambridge (1873) L.R. 16Eq 19.
191
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.191
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 testator’s heir, executor or
191 Mette v. Mette (1859) 1 SW & Tr. 416.
192
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.192 The underlying purpose (of
this provision) was to allow the appointment by will to
be revoked by the testator’s subsequent marriage only in
circumstance where the testator’s new family might
benefit under the gift in default of appointment193.
Further light has been thrown on this rather complex and
incomprehensible provision.
Thus:
If the testator’s 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
192 Section 18, Wills Act (1837) and section 15 of the Kaduna State Willslaw (1991)193 Parry and Clark, law of Succession, 8th Ed. P. 60. See in the Goods ofFitzroy (1858) Sw & Tr. 133 for the applicable of this provision
193
the rules of intestacy, or only party 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.194
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.195 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.194 Megary & Wade, the law of property, 8th ed (2012) p. 481195 Section 177 of the L.P.A. 1925
194
Alero Jadesimi v. Mrs. Victoria Okotie-Eboh & 2 Ors.196
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.
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 testator’s
estate. However in 1974, they became aware of the
196 (1996) 2 NWLR (pt. 428.
195
existence of the 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 appellant’s 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.
196
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
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
197
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 testator’s subsequentmarriage had converted his hither topolygamous marriage to a monogamousone”. In the regard, I am in totalagreement in the submission of thelearned senior advocate, Kehinde SofolaEsq. to the effect that in arriving atin correct interpretation of the saidsection 18 of the wills act, the courtmust avoid any interpretation that willbe unjust or absurd. No doubt, undersection 18 of the wills act, 1837 ofEngland, the marriage which can revokeor invalidate an existing Will ofeither of the parties, is a marriagewithin the English concept. Thisconnotes a marriage between a man and a
198
woman each of whom of the time of themarriage was unmarried or free to getmarried and therefore possessed thelegal capacity to contract a lawfulmarriage. In my view however, themarriage under the marriagecontemplated under section 18 of theWills Act, 1837 of England cannotconceivably include a subsequencemarriage under the marriage Act, cap.15 between a man and a woman who arealready validly marriage undercustomary law and living together ashusband and wife before either of themmade his last Will and testament andover which the section 18 of the Willact, 1837 of England by its tenor doesnot appear to cover a subsequentmarriage under the marriage act, cap.115 by a man and woman such as thetestator in the presence case and hiswife, the 1st respondent, who prior tothere said subsequent marriage underthe act has been validly married undercustomary law and living together ashusband and wife even before the Willin issue was made. After all, thetestator, if he so desired had over5years to revoke the said Will andtestament before his death in 1966”.Under section 45(2) of the
199
interpretation act, cap 89, it is plainthat a statute of general applicationshall be in force so far only as thelimit of that local jurisdiction andcircumstance shall permit section 45(3)then provides that such imperial lawsas the Wills act, 1837, shall be readwith such formal verbal alterations notaffecting the substance as to names,localities e.t.c. as may be necessaryto render the same applicable to thecircumstances. It therefore seems to meclear that the Wills act 1837 may beapplied only in so far and to theextent that our local circumstance,custom and tradition permit. I alsoaccept that had the testator not beenlawfully married to the 1st respondentas at the time the will was made, thewills act,1837 would have had fullapplication and effect as envisage byBritish parliament which enacted it. Innew, however, of fact that the testatorwas validly and lawfully married tothem respondent under the prevailinglocal custom, tradition and laws, everbefore the will in issue was made byhim, I cannot accept that thesubsequent reaffirmation of thismarriage to the first respondent underthe marriage set revoked his said will.
200
I concluded by stressing that. I findit unacceptable that the will made bythe late chief Festus Okotie - Eboh in1947 after he had validly got marriedwith his 1st respondent in 1942 wasautomatically revoked or invalidated bythe provisions of section 18 of thewills set, 1837 of England as a resultof the subsequent marriage of the sameparties in 1961 under the marriage Act,Cap. 115, laws of the federation ofNigeria and Lagos 1958. the courtbelow, with respect, was in error whenit constructed the provisions ofsection 18 of the will acts, 1837 asrevoking the last will as the tetramersof late chief Festus Samuel Okotie –Eboh by virtue of his subsequentmarriage under the marriage act,cap.115,to the 1st respondent. Thetrial court was right when it held thatthe will in issue was not therebyrevoked.”
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
stretch the ratio of the Okotie Eboh’s case by saying
201
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.197
197 Kole Abayomi wills: Laws and practice, Mbayi and Association nig, ltd,Lagos (2007) pa 185.
202
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
203
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 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
204
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
205
to dispose his property at the time when he 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
206
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
testator’s 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.
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
testator’s 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
207
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,198 which
makes provision for oral evidence.199
198 The Evidence Act Cap E14 (2011)199 Section 258 of the Evidence Act Cap E14 (2011)
208
(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.
209
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.
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
210
customary laws of our community to have a standard
reflective of our customary Will in each community.
211
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
212
6) Adubi, C. O. Drafting, Convenyancing and Will, The
Lighthouse Publication Company Ltd. Lagos (1995)
7) Baker, P. V. & Langan, P. St. J. Snell’s Principles
of Equity (28th ed.) London, Sweet and Maxwell, 1982
8) Black’s Law Dictionary, Sixth Edition 1994
9) Campbell, Harry (ed): Black’s Law Dictionary
(Centennial Edition)
10) Esposito, J. L. Islam: The Straight Path. Oxford
University Press, 1991
11) Gerald, N. Hill and Kath Leen T. Hill Legal
Dictionary: Testamentary Capacity 1981-2009.
http://www.thefreedictionary.com 27th March, 2013
12) Gurin, A. M. An Introduction to Islamic Law of
Succession: Zaria, Jodda Press Ltd. 2008
213
13) Garrow and Wills, Law of Wills and Administration,
Butterworth Welhugton 1960
14) Harvey, Brian W: The Law and Practice of Nigerian
Wills, Probate and Succession, London, Sweet and
Maxwell, 1968
15) http://www.academicjournals.org/JICRC last
accessed 29 September 2011
16) http://en.wikipedia.org/wiki/Donato-Mortis-causa
2 February 2013
17) Imhanobe, S. D. Legal Drafting and Conveyancing.
Abuja Secure Titles Publishers 2002
18) Jarman, T: A Treatise on Wills, Sweet (Google Books)
London Vol. 1 1844
214
19) Megarry, Sir Robert Edgar and Wade, H. W. R: The Law
of Real Property (2nd Ed) London, Stevens & Sons Ltd,
1959
20) 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
21) 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’
22) Nwabueze, B. O. Power of Testamentary in Bendel and
the Western States of Nigeria in Journal of Nigerian
Law, Vol. 1, No. 1, 1992
215
23) Nwabueze, B. O. Nigerian Law, Enugu, Nwamife
publishers, 1972
24) Okoro, N.: Customary Laws of Succession in Eastern
Nigerian and the Statutory and Judicial Rules
covering their Application, London Sweet and Maxwell
1966
25) Sagay, I. E.: Nigerian Law of Succession, Principles,
Cases, Statutes and Commentaries, Malthouse Press Ltd
(Nig.) Lagos, 2006
26) Sherrin, C. H. Barlow, R. E. D and Wallington, R. A.:
Williams Law relating to Will (5th ed.) London,
Butterworth, 1980
27) Utuama, A. A.: Nigerian Law of Real Property, Ibadan,
Shaneson 1989
216
28) Williams, Mortimer and Sunnuks: Executors,
Administrators and Probate, 20th edition, Sweet and
Maxwell UK, 2013
217
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