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.
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.
Vitiating
Factors
Undue
Influence
A
will must reflect the wishes of the testator. The provision of the will must
have been voluntarily made without pressure from any quarters whatever. In HALL
v. HALL.[1] Sir J.P
Wilde stated inter alia thus:
…A testator may be led but
not driven and his will must be the offspring of his own volition and not the
record of someone else a will induced by the undue influence third part is liable
to be 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 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 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.
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
proved[2] 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
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. MAJA[3]
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 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.
The
mere proof of a relationship in not enough to sustain an allegation of undue
influence. In TILLEY v. BERG[4] 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. NYE[5]
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 undue influence. It was held that as far as the gift to the solicitor were
concerned, they were not valid.
In
HACKER V. NEWBORN[6]
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.
OTHERS
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.
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.[7]
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 it 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
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 SOLICITOR[8] a
solicitor benefited from the will of his Client and the will was declared
invalid. His name was 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 execution. As is
stated at page 47 in the 21st edition of Tristam and (vote on
Probate practice:
If the testator be blind or
apparently illiterate ignorant, the court requires to be satisfies that be had
knowledge of its contents. Unless suspicious attaches to the document e.g.
where it is signed by mark or were the signature indicates extreme feebleness,
the testator’s execution is sufficient knowledge and approval.
In
AGIDIGBI v. AGIDIGBI[9], 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.
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.”[10]
5.3 Revocation of Will
A
will is ambulatory, which means that a competent testator may change or revoke
it at any time before his 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 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.
Revocation
by Destruction
A
will can be revoked by destruction.[11] 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.”[12]
The
law on revocation by destruction with intent is uniform throughout the states
of the Federation. Section 16 of the Wills Law[13]
provides that:
No will or codicil, or any
part thereof shall be revoked otherwise than as provided by section 14 or any
other Will or Codicil executed in manner here in before required or by some
writing declaring an intention to revoke the same and executed in the manner in
which a will is here before required to be executed or by burning, tearing or
otherwise destroying the same by the testator or by some persons in his presence
and by his presence and by his direction with the intention of revoking 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,[14] 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 and 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.[15]
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,[16]
where the signatures of witnesses were scratched out, this was held to
constitute a valid revocation. By contrast, in Doed. Perkes v. Perkes,[17] a
testator being angry with one of the beneficiaries of this will, commenced
tearing up the will with the 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,[18] only
the first lines were revoked. By contrast, in Leonard v. Leonard,[19] 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 by
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,[20] 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,[21] 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
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.
A
testator, who wishes to revive a revoked will, may do so by re-execution with
intent to revive[22]
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 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 and only Will’ does not necessarily work are vocation of all previous
testamentary instrument. It is only where it is clear from the general tenor of
the last Will that the testator did not intend the earlier Will to remain in
operation that it is revoked”.[23]
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 testator[24] or that
the two Wills may relate to different properties of the testator say in two
different countries.[25]
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.
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
for example, by date, the subsequent codicils may not be revoked.[26]
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.
Subsequent
marriage
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.[27]
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 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.[28] 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 appointment[29]. 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 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.[30]
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.[31] 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. Alero Jadesimi v. Mrs. Victoria Okotie-Eboh & 2 Ors.[32] 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 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.
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 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 subsequent marriage had converted his hither to polygamous marriage to
a monogamous one”. In the regard, I am in total agreement in the submission of
the learned senior advocate, Kehinde Sofola Esq. to the effect that in arriving
at in correct interpretation of the said section 18 of the wills act, the court
must avoid any interpretation that will be unjust or absurd. No doubt, under
section 18 of the wills act, 1837 of England, the marriage which can revoke or
invalidate an existing Will of either of the parties, is a marriage within the
English concept. This connotes a marriage between a man and a woman each of
whom of the time of the marriage was unmarried or free to get married and
therefore possessed the legal capacity to contract a lawful marriage. In my
view however, the marriage under the marriage contemplated under section 18 of
the Wills Act, 1837 of England cannot conceivably include a subsequence
marriage under the marriage Act, cap. 15 between a man and a woman who are
already validly marriage under customary law and living together as husband and
wife before either of them made his last Will and testament and over which the
section 18 of the Will act, 1837 of England by its tenor does not appear to
cover a subsequent marriage under the marriage act, cap. 115 by a man and woman
such as the testator in the presence case and his wife, the 1st
respondent, who prior to there said subsequent marriage under the act has been validly
married under customary law and living together as husband and wife even before
the Will in issue was made. After all, the testator, if he so desired had over
5years to revoke the said Will and testament before his death in 1966”. Under
section 45(2) of the interpretation act, cap 89, it is plain that a statute of
general application shall be in force so far only as the limit of that local
jurisdiction and circumstance shall permit section 45(3) then provides that
such imperial laws as the Wills act, 1837, shall be read with such formal
verbal alterations not affecting the substance as to names, localities e.t.c.
as may be necessary to render the same applicable to the circumstances. It
therefore seems to me clear that the Wills act 1837 may be applied only in so
far and to the extent that our local circumstance, custom and tradition permit.
I also accept that had the testator not been lawfully married to the 1st
respondent as at the time the will was made, the wills act,1837 would have had
full application and effect as envisage by British parliament which enacted it.
In new, however, of fact that the testator was validly and lawfully married to
them respondent under the prevailing local custom, tradition and laws, ever
before the will in issue was made by him, I cannot accept that the subsequent
reaffirmation of this marriage to the first respondent under the marriage set
revoked his said will. I concluded by stressing that. I find it unacceptable
that the will made by the late chief Festus Okotie - Eboh in 1947 after he had
validly got married with his 1st respondent in 1942 was
automatically revoked or invalidated by the provisions of section 18 of the
wills set, 1837 of England as a result of the subsequent marriage of the same
parties in 1961 under the marriage Act, Cap. 115, laws of the federation of
Nigeria and Lagos 1958. the court below, with respect, was in error when it
constructed the provisions of section 18 of the will acts, 1837 as revoking the
last will as the tetramers of late chief Festus Samuel Okotie –Eboh by virtue
of his subsequent marriage under the marriage act, cap.115,to the 1st
respondent. The trial court was right when it held that the will in issue was
not thereby revoked.”
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 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.[33]
[1]
(1891) 3 Ch. 389
[2]
Kole Abayomi, Wills Law and practice
Mbeyi and Associates Nig Ltd, Lagos (2004) page 110
[3]
(1951) 13WA CA290
[4]
(No. 2) (1945) 3 WW81
[5]
(1959) 1 ALL ER 552: 1 WLR 284
[6]
82 ER 834
[7]
Gerald N. Hill and Kath T. Hill. Legal
Dictionary: Testamentary Capacity (1981-2005) http://www.thefreedictionary.com. 27th march 2013
[8]
(1939) 1 QB.
[9]
(1996) 6 NWLR part 454 p. 300.
[10]
Unreported, Suit No. LD. / 634/70
delivered on 22/6/72 per Adefarasin J, High Court of Lagos.
[11]
Section 20 Wills Act; section 16. Cap
163 Laws of Kaduna state 1991
[12]
Per James, L.J. in Cheese v. Lovejoy
(1877) PD. 251 at 253.
[13]
Cap 163 Laws of Kaduna State 1991.
[14]
Ibid
[15]
(1887) 12PF 141
[16]
(1820) 3B & Ald. 489; 106 E.R. 740
[17]
(1893) 8 P & D 471.
[18]
(1871) 2p & D 206
[19]
(1902) P. 243.
[20]
(1909)p .157
[21]
(1965)110 s. j. 18
[22]
see. 18 Kaduna State wills law 1991
[23]
Williams on Wills 9th Ed.
(2008) at p. 129
[24]
Lowthorpe-Lutwidge v. Elstone (1893)
P.I which was criticized in the Lutwidge case.
[25]
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 a repetition of the earlier one
[26] Williams On Wills 9th
Ed (2008) at p. 132. See also farrer v. st. Chatherine’s college Cambridge
(1873) L.R. 16Eq 19.
[27]
Mette v. Mette (1859) 1 SW & Tr.
416.
[28]
Section 18, Wills Act (1837) and
section 15 of the Kaduna State Wills law (1991)
[29]
Parry and Clark, law of Succession, 8th
Ed. P. 60. See in the Goods of Fitzroy (1858) Sw & Tr. 133 for the
applicable of this provision
[30]
Megary & Wade, the law of
property, 8th ed (2012) p. 481
[31]
Section 177 of the L.P.A. 1925
[32]
(1996) 2 NWLR (pt. 428.
[33]
Kole Abayomi wills: Laws and practice,
Mbayi and Association nig, ltd, Lagos (2007) pa 185.
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