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THE PREREQUISITES OF A VALID WILL; A CRITICAL ANALYSIS
CHAPTER ONE
INTRODUCTION
1.1 BACKGROUND OF THE STUDY
The concept of WILL is of great importance. This concept originated from the Roman Law and was passed on to English Law from where the nations of the Commonwealth accepted it as part of the received English Law. Its origin lies in the fact that it was thought highly desirable to actualize the wishes of a dying person as a legal and binding obligation. This involved the person who came to make a wish which was later named the TESTATOR as well as the person(s) to carry out those wishes who came to be known as executor(s). And lastly, it involved those who had to benefit from those legacies, being simply called the beneficiaries or more technically referred to an CESTIUS QUE TRUST. A Will therefore is three-pronged thus:
TESTATOR
BENEFICIARIES EXECUTORS/TRUSTEES
It is beyond dispute that one great concern of a property owner is that he naturally wants to know what will happen to his property when he dies. Ordinarily, he will want to provide for his family and one sure way of doing so is that his houses, farms etc should descend to them after his death. It is from a Will therefore, that the property owner’s dream will be achieved. And for the Will to be enforceable, it must be in accordance with the stipulated requirements.
THE LEGAL PROBLEM
Will making remains a popular and even necessary practice because the old law of intestate succession was felt to be unsatisfactory. To make a valid Will, a person must be in his or her right mind. A person also must be of full age, that is to say, be twenty-one years old, and must state his wishes in writing, signed by himself and attested by two witnesses, who sign their names at the foot or end of the document in his presence and in the presence of each other. The witnesses too must be of full age and in their right mind. Thus, in an indirect way, the impartiality of the witnesses is as far as possible ensured. The interpretation of Wills has given rise to untold litigation, and the rules and principles that have been developed in the resultant case law fill many volumes of abstruse and intricate doctrine. The main legal problem therefore centers around the animosity that flows from different interested parties who appear to be aggrieved because of the content of the Will thereby giving rise to different interpretation of the Will.
1.2 STATEMENT OF THE PROBLEM
Research has found that there are so many people eager to know more about Wills. The thirst for knowledge about Wills is on the increase. A property owner will naturally want to know what will become of his property after his demise, and ordinarily would want to cater for his remnants after his demise. This will lead to a preparation of a Will. It is not enough for a Will to be made because some Wills could be declared invalid based on certain inconsistencies (this will be shown in further discuss). Therefore, to have a Valid Will, one must have in mind the requisites of a Valid Will.
RATIONALE AND JUSTIFICATION OF THE STUDY
The importance of Wills in the life of a people cannot be overestimated. Death is an inevitable end of earthly life. We are living witnesses to the destruction of family units at the end of the patriarch’s life due to disagreement over inheritance. Homes have been broken and scattered, children and relations have become mortal enemies in their struggle to share the properties of the deceased. While it may be true that because of the feud and unending litigation that sometimes attend some Wills, some of the people have become scared about Wills, the overwhelming majority are thirsty for knowledge about Wills. They want to know why they ought to make Wills and their advantages over other manners of disposition of property in consideration of death. This research work is meant to be a guideline on how to make Wills that will stand the test of time.
1.4 SCOPE AND LIMITATION OF THE STUDY
The scope of this research work is to enunciate more on Wills, and also lay down the essential factors that will make a Will valid, or invalid. These factors shall be analysed critically. This work centers on its scope and is limited to that.
1.5 DATA COLLECTION AND METHODOLOGY
Data collection for the purpose of this research work is wholly from library work which comprise a search in textbooks and jurist opinion.
1.6 LITERATURE REVIEW
WHAT IS A WILL?
Generally, the word “WILL” may mean an instrument, or it may mean all the testamentary document by which a testators property is disposed off, or devised.
According to Osborne,[1] a Will is a disposition by which the person making it (the testator) provides for the distribution or administration of (his) property after his death. It is always revocable.
A Will according to Swinburne2 is a lawful disposition of that which any would have done after his death.
Black Stone3 defines the Will as “The legal declaration of a man intention which he Wills to be performed after his death”.
The celebrated nineteenth century English writer Jarman4 says:
A Will is an instrument by which a person makes a disposition of his property to take effect after his decease, and which is in its nature ambulatory and revocable during his lifetime.
In the words of P.T. Afangideh5, a WILL is a legal instrument for the transfer of property or obligations from the testator to the beneficiaries through the medium of Executors, which transfer is ineffectual until the death of the testator. A WILL therefore, is a law, a decree, a testament made by the testator on matters touching and concerning his estate, family and future.
WILLS according to the Blacks Law Dictionary6 is defined as a document by which a person gives his or her estate to be distributed upon death.
A WILL is a creation of statute. For it to be valid, it must comply strictly with the provisions of the relevant statute. The courts are strict in the observance of statutory prescriptions on Wills.
Scarman J. in Re Fuld (Deceased)7 clarifies the position succinctly as follows:
Darkness and suspicion are common features in WILL cases: Because it is often difficult, and sometimes impossible to discover the truth, the law insists on two types of safeguards in WILL cases. The first type of safeguard is part of the substantive law – the requirements of proper form and due execution. Such requirements …are no mere technicalities. They are the first line of defence against fraud upon the death. The second type of safeguard is the second line of defence. It is invoked when there are circumstances which give rise to suspicion: it is the safeguard of strict proof. In case where no suspicion reasonably arises, the court will allow inferences, presumptions as they are sometimes called, to be drawn from the regularity of a testamentary instrument upon its face, or the fact of the execution. But if there are circumstances, whatever be their nature, which reasonably give rise to suspicion, the court must be on its guard. It must ensure that the burden of proof rests upon the party propounding the WILL: and he must satisfy the conscience of the court that the instrument so propounded is the last WILL of a free and capable testator”. Over the years, the courts had devised as indicated above by Scarman J, a long line of authorities to ensure that no fraud was perpetrated against the wishes of the testator and, in fact, the WILL was made by him voluntarily when he possessed full capacity to make it.
In summary, a WILL will be given a working and functional definition which will graphically bring out and bear out the dictum of his Lordship in the aforementioned case thus: It is a testamentary and revocable document, voluntarily 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.
[1] G. Osborne, the Concise Law Dictionary 2001, p. 355
Testaments and Last Wills 1640 pt. 1, & 4
L. Com. 499
WILLs, 8th 1951, 26
WILLS probate & Estate Administration in Nigeria and the Common Wealth 2001, pgs. 2-3
7th 1999
7 . (1965) 2 All E. R. 776
CHAPTER ONE
INTRODUCTION
1.1 BACKGROUND OF THE STUDY
The concept of WILL is of great importance. This concept originated from the Roman Law and was passed on to English Law from where the nations of the Commonwealth accepted it as part of the received English Law. Its origin lies in the fact that it was thought highly desirable to actualize the wishes of a dying person as a legal and binding obligation. This involved the person who came to make a wish which was later named the TESTATOR as well as the person(s) to carry out those wishes who came to be known as executor(s). And lastly, it involved those who had to benefit from those legacies, being simply called the beneficiaries or more technically referred to an CESTIUS QUE TRUST. A Will therefore is three-pronged thus:
TESTATOR
BENEFICIARIES EXECUTORS/TRUSTEES
It is beyond dispute that one great concern of a property owner is that he naturally wants to know what will happen to his property when he dies. Ordinarily, he will want to provide for his family and one sure way of doing so is that his houses, farms etc should descend to them after his death. It is from a Will therefore, that the property owner’s dream will be achieved. And for the Will to be enforceable, it must be in accordance with the stipulated requirements.
THE LEGAL PROBLEM
Will making remains a popular and even necessary practice because the old law of intestate succession was felt to be unsatisfactory. To make a valid Will, a person must be in his or her right mind. A person also must be of full age, that is to say, be twenty-one years old, and must state his wishes in writing, signed by himself and attested by two witnesses, who sign their names at the foot or end of the document in his presence and in the presence of each other. The witnesses too must be of full age and in their right mind. Thus, in an indirect way, the impartiality of the witnesses is as far as possible ensured. The interpretation of Wills has given rise to untold litigation, and the rules and principles that have been developed in the resultant case law fill many volumes of abstruse and intricate doctrine. The main legal problem therefore centers around the animosity that flows from different interested parties who appear to be aggrieved because of the content of the Will thereby giving rise to different interpretation of the Will.
1.2 STATEMENT OF THE PROBLEM
Research has found that there are so many people eager to know more about Wills. The thirst for knowledge about Wills is on the increase. A property owner will naturally want to know what will become of his property after his demise, and ordinarily would want to cater for his remnants after his demise. This will lead to a preparation of a Will. It is not enough for a Will to be made because some Wills could be declared invalid based on certain inconsistencies (this will be shown in further discuss). Therefore, to have a Valid Will, one must have in mind the requisites of a Valid Will.
RATIONALE AND JUSTIFICATION OF THE STUDY
The importance of Wills in the life of a people cannot be overestimated. Death is an inevitable end of earthly life. We are living witnesses to the destruction of family units at the end of the patriarch’s life due to disagreement over inheritance. Homes have been broken and scattered, children and relations have become mortal enemies in their struggle to share the properties of the deceased. While it may be true that because of the feud and unending litigation that sometimes attend some Wills, some of the people have become scared about Wills, the overwhelming majority are thirsty for knowledge about Wills. They want to know why they ought to make Wills and their advantages over other manners of disposition of property in consideration of death. This research work is meant to be a guideline on how to make Wills that will stand the test of time.
1.4 SCOPE AND LIMITATION OF THE STUDY
The scope of this research work is to enunciate more on Wills, and also lay down the essential factors that will make a Will valid, or invalid. These factors shall be analysed critically. This work centers on its scope and is limited to that.
1.5 DATA COLLECTION AND METHODOLOGY
Data collection for the purpose of this research work is wholly from library work which comprise a search in textbooks and jurist opinion.
1.6 LITERATURE REVIEW
WHAT IS A WILL?
Generally, the word “WILL” may mean an instrument, or it may mean all the testamentary document by which a testators property is disposed off, or devised.
According to Osborne,[1] a Will is a disposition by which the person making it (the testator) provides for the distribution or administration of (his) property after his death. It is always revocable.
A Will according to Swinburne2 is a lawful disposition of that which any would have done after his death.
Black Stone3 defines the Will as “The legal declaration of a man intention which he Wills to be performed after his death”.
The celebrated nineteenth century English writer Jarman4 says:
A Will is an instrument by which a person makes a disposition of his property to take effect after his decease, and which is in its nature ambulatory and revocable during his lifetime.
In the words of P.T. Afangideh5, a WILL is a legal instrument for the transfer of property or obligations from the testator to the beneficiaries through the medium of Executors, which transfer is ineffectual until the death of the testator. A WILL therefore, is a law, a decree, a testament made by the testator on matters touching and concerning his estate, family and future.
WILLS according to the Blacks Law Dictionary6 is defined as a document by which a person gives his or her estate to be distributed upon death.
A WILL is a creation of statute. For it to be valid, it must comply strictly with the provisions of the relevant statute. The courts are strict in the observance of statutory prescriptions on Wills.
Scarman J. in Re Fuld (Deceased)7 clarifies the position succinctly as follows:
Darkness and suspicion are common features in WILL cases: Because it is often difficult, and sometimes impossible to discover the truth, the law insists on two types of safeguards in WILL cases. The first type of safeguard is part of the substantive law – the requirements of proper form and due execution. Such requirements …are no mere technicalities. They are the first line of defence against fraud upon the death. The second type of safeguard is the second line of defence. It is invoked when there are circumstances which give rise to suspicion: it is the safeguard of strict proof. In case where no suspicion reasonably arises, the court will allow inferences, presumptions as they are sometimes called, to be drawn from the regularity of a testamentary instrument upon its face, or the fact of the execution. But if there are circumstances, whatever be their nature, which reasonably give rise to suspicion, the court must be on its guard. It must ensure that the burden of proof rests upon the party propounding the WILL: and he must satisfy the conscience of the court that the instrument so propounded is the last WILL of a free and capable testator”. Over the years, the courts had devised as indicated above by Scarman J, a long line of authorities to ensure that no fraud was perpetrated against the wishes of the testator and, in fact, the WILL was made by him voluntarily when he possessed full capacity to make it.
In summary, a WILL will be given a working and functional definition which will graphically bring out and bear out the dictum of his Lordship in the aforementioned case thus: It is a testamentary and revocable document, voluntarily 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.
[1] G. Osborne, the Concise Law Dictionary 2001, p. 355
Testaments and Last Wills 1640 pt. 1, & 4
L. Com. 499
WILLs, 8th 1951, 26
WILLS probate & Estate Administration in Nigeria and the Common Wealth 2001, pgs. 2-3
7th 1999
7 . (1965) 2 All E. R. 776
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