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 case of movables governed by
the law of the domicile of the testator at the time of his death.[1]
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 shall be in writing and executed in manner hereinafter mentioned; (that is
to say) it shall be signed at the foot or end thereof by the testator, or by some
other person in his presence and by his direction; and such signature shall be
made or acknowledged by the testator in the presence of two or more witness
present at the same time, and such witnesses, but no form of attest and shall
subscribe the Will in the presence of the testator, but no form of attestation
shall be necessary.”[2]
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 law under the Decree shall be valid for disposing of any money or
personal property which is due or belongs to him at his demise if it is in
writing.”
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 constitution[3] 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.[4]
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, printed or
lithographed, and according to a learned author, either in whole or in part,[5] typed or
printed parts of a Will may be completed or complemented with ordinary writing,[6] either
in into or pencil.[7]
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.[8]
The Act extends to all testamentary 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.”[9]
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.[10] By the
early nineteenth century, the rules had become complex, with different rules
for formalizing wills of real and 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 time[11]. The
bill was introduced in the House of Lords by Lord Langdate.[12] Though
the requirement that a will be in writing stems from an attempt to frustrate
fraud, an apparent exception to the requirements for the formal execution of
the Act under section 9 of Wills Act, 1837, is a secret trust.[13]
A
minor, a person under the age of 18, cannot make a valid will[14] unless
they are a member of the armed forces on active service or a mariner at sea.[15] These provisions
were clarified by the Wills (soldiers and Sailors) Act 1918. There is no requirement
to publish a will.[16] If any
of the witness was, or subsequently becomes, incapable of proving the will,
that alone will not make it invalid.[17] Alterations must be executed in the same
manner as a will.[18]
Formalities
of making a will under the Kaduna State Will Law
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
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
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.
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.[19] 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 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.
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 that the witness should know that the document
is a Will.[20]
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.[21]
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 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. Dade[22] 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
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,[23] 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.
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
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 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. George[24] 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 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 other[25]
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. However, it does seem that a blind person
cannot witness a Will.
In
the Estate of Gibson,[26] 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:
“Is mere presence without
the faculty of sight enough to constitute a witness for the purpose of S.9 of
the 1837 Act? Is an act which the witness cannot see done 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.[27]
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 nor his spouse can take under any Will
witnessed by him.[28] 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.[29] 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.[30]
The
rule applying to the gifts given to attesting beneficiaries and their spouses has
no application to the following cases:
(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.[31]
(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. Bestwick[32] 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.
(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.
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 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.
(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 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 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. AGIDIGI[33] that
under Benin nature law and custom, the eldest son of the 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.TRUSTEE[34] 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. YINUSA[35]. It was
held 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 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 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 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 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,[36] Idehen,
Osula v. Osula.[37]
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? 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,[38] 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
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-Jumbo[39]
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 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,[40] 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
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.[41]
[1]
Sagay I.E; Nigerian law of succession,
Principle case, statutes and commentaries; Mathuse press Ltd (Nig) Lagos,
(2008) p. 132.
[10]
Mirow, M.C. (1994) “Last Wills and
testaments in England 1500-1800.” In Vander indent, J. (ed.) Acts (a) cause de
mort: Acts of tast Will, Brussels: De Buek Universite; pp 47-88
[13]
Wilde, D. (199). ‘Secret and
semi-secret trusts: justifying distinctions between the two conveyance and
property Lawyer: sep-Oct, 366-378.
[17]
S. 14, Ibid.
[18]
S 21, Ibid.
[19]
Section 6 of the Kaduna State Wills Law.
[22]
(1781) 28 ER 1010.
[27]
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.
[28]
S. 11 Wills Edict 1990 of Kaduna, S.10
Will Edict 1990 of Lagos State and the provision to S.10 Wills Edict. 1990 of
Oyo State.
[30]
The provision to S.8 Wills Law 1990 of
Kaduna State and S.8 of Lagos State out proviso to S.10 Will Edict 1990 of Oyo
State
[40]
(1995) 9 NWLR pt.419, p.259.
[41]
Obiora A.E., Limits f a testator on freedm of will testament. (2013) http://www.nigerianlawguru.com. 2nd
April 2012.
No comments:
Post a Comment