WILLS

Question 1

What is a will?

Answer 1

It is the expression of a person’s wishes which is to take effect upon the death of the testator.

Question 2

What are the key features of a will?

Answer 2

Testamentary.

Ambulatory.

Voluntary.

It identifies the properties and names the beneficiaries.

Question 3

What effect does undue influence have on a will?

Answer 3

It negates the ‘voluntary’ requirement for the validity of a will.

Question 4

What is the difference between undue influence and persuasions?

Answer 4

Hall v Hall:

Persuasion appeals to the affections or sentiment of gratitude for past services, or pity for future destitution.

Persuasion is not unlawful. However, undue influence, which is coercive pressure, is unlawful.

Question 5

What is a codicil?

Answer 5

A codicil is a testamentary document that is executed in the same way as a will. It must make reference to the will it seeks to correct, revoke or amend.

Question 6

What are the pre-conditions for a valid will?

Answer 6

Legal Capacity.

Mental Capacity.

Question 7

What are the age requirements for making a will?

Answer 7

Wills Law of Lagos State: the age of majority is 18.

Wills Act: the age of majority is 21.

However, this does not apply to privileged wills.

Question 8

What is required in a will in which the testator is blind, deaf, dumb or an illiterate?

Answer 8

A jurat.

Question 9

What is the test to determine if a testator has a sound disposing mind?

Answer 9

Banks v Goodfellow
The testator must:

Understand the nature of the acts of making a will and its effects.

Understand the extent of the property they are disposing.

Understand and recollect the persons who are beneficiaries.

Understand the manner in which the property is shared amongst the beneficiaries.

Question 10

At what time should the testator have a sound disposing mind?

Answer 10

At the time of giving instructions and at the time of execution of the will.

Question 11

What kind of evidence may be adduced to prove existence of a sound disposing mind?

Answer 11

Corroborated evidence of attesting witnesses to the execution of the will.

Evidence of general habits and course of life of testator.
Medical evidence by doctor.

Question 12

What effect does an insane delusion have on a will?

Answer 12

An insane delusion is to imagine facts to exist where there is no evidence.

The general principle is that a delusion is of no material consequence in proving the validity of a will.

However, if the delusion affected the testator in any or all of the dispositions made in the will, the delusion would invalidate such dispositions.

Question 13

Who does the burden of proof for proving mental capacity lie on?

Answer 13

Johnson v Maja; Okelola v Boyle

In the first instance, those who propound the will are required to show prima facie evidence that the will was duly executed and that the testator had the requisite mental capacity.

Thereafter, the burden shifts to proponents of the will to substantiate the allegations they have made.

Question 14

What are the formal requirements for a valid will?

Answer 14

It must be in writing.

It is signed by the testator.

The signature of the testator is made in the presence of at least 2 witnesses, present at the time.

The witnesses attest and subscribe the will in the presence of the testator.

Question 15

Must all wills be in writing?

Answer 15

The general rule is that all wills must be in writing.

EXCEPTIONS:

• A will made under customary law.
• Privileged wills.

Question 16

What are the different ways a testator may sign their will?

Answer 16

A testator may:
1. Sign in the presence of at least two witnesses present at the same time, who attest to the signature.

2. Direct another person to sign in their presence, and then acknowledge the signature in the presence of at least two witnesses present at the same time, who attest to the signing of the will.
3. Pre-sign the will, and subsequently have at least two witnesses present at the same time, who attest to the signature of the will.

Question 17

Where should the testator’s signature be positioned?

Answer 17

Wherever the signature is positioned, there should be no disposition after execution, otherwise such execution would be rendered void.

Question 18

Who can be a witness to a will?

Answer 18

Any person who is capable of testifying to the due execution of a will may be a witness. Thus, a blind person cannot be a witness to a will.

Question 19

Can a witness also be a beneficiary under the same will?

Answer 19

The general principle is that a person who attests to the execution of a will cannot benefit under the will. This rule also applies to the spouse of a witness to a will.

However, there are exceptions.

Question 20

In what instances will the court permit the witness to a will to benefit from the same will?

Answer 20

1. There are three or more witnesses to a will.
2. The witness was merely the witness to a codicil confirming the will.
3. The gift to the witness is subsequently confirmed by a codicil which the witness did not witness.
4. Privileged wills.
5. The witness was not married to the spouse (who is a beneficiary under the will) at the time of witnessing the will.
6. The gift is made in payment of a debt to the witness.

Question 21

Will the court allow a beneficiary take a gift under a will if such beneficiary had a fiduciary relationship with the testator?

Answer 21

Re Solicitor; Wintle v Nye

Where the testator and the beneficiary have a fiduciary relationship, the court is very careful in admitting such wills to probate, as they raise suspicion.

A prudent solicitor would thus advice their client to seek independent professional advice in order to dispel any suspicion of the court.

Question 22

What is the principle from Ross v Counters?

Answer 22

A solicitor owes their client a duty to explain that a beneficiary or spouse cannot be a witness to a will.

If a solicitor fails to do so, they will be held liable for negligence.

Question 23

What is the difference between a legacy and a device?

Answer 23

When gifts are moveable or personal, they are referred to as legacies.

When the gift is immoveable or an interest in land, it is referred to as a device.

Question 24

What are the different types of legacies?

Answer 24

Specific legacy.

General legacy.

Demonstrative legacy.

Pecuniary legacy.

Residuary legacy.

Annuity.

Conditional or contingent legacy.

Lifetime legacy.

Question 25

What is ademption?

Answer 25

Ademption occurs when the gift ceases to exist at the time of the death of the testator.

Question 26

What is abatement?

Answer 26

Abatement implies that there is insufficiency in the estate of the deceased testator to satisfy gifts made under the will.

Question 27

What types of gifts are likely to fail for ademption?

Answer 27

Specific legacy.

Question 28

What types of gifts are likely to fail for abatement?

Answer 28

General legacy.

Demonstrative legacy.

Question 29

What advice would you give a testator, to prevent the doctrine of ademption from applying, in making a specific gift under their will?

Answer 29

Make an alternative or substitutional gift.

For example, ‘I give my Red Honda SUV 2015 model with plate number LDN-251 AA to my wife, Florence Fiona, and if I do not own the said car at my death to satisfy the gift, I give to Florence Fiona in lieu the sum of N1,000,000’

Question 30

Does a change in the name or form of a gift cause it to fail as a result of ademption?

Answer 30

No it does not, as long as the substance of the gift is the same.

Question 31

Would you describe a gift of shares as general or specific legacy?

Answer 31

Gift of shares are generally considered to be general legacy, except where the testator may have mentioned the number of shares and the company holding same.

Question 32

What is a demonstrative legacy?

Answer 32

A demonstrative legacy is a gift which a testator directs to be satisfied from a specific fund or pool of property.

Question 33

What is a pecuniary legacy?

Answer 33

A pecuniary legacy is strictly a gift of money.

It may take the form of general, specific, or demonstrative legacy.

Question 34

What is the importance of making a residuary gift in a will?

Answer 34

It prevents the problem of partial intestacy.

Question 35

What type of property in the estate of the deceased testator does the residuary legacy consist of?

Answer 35

Gifts that have failed.

Gifts that have been disclaimed or renounced.

Properties that are acquired after the will was made.

Properties that are acquired after the testator’s death.

Properties omitted in the will.

Question 36

What is annuity?

Answer 36

Gifts in a will which are to be given periodically or annually.

It may be general, specific, or demonstrative.

Question 37

What is the effect of an illegal condition being attached to a gift?

Answer 37

Such condition would be deemed void by the court.

Question 38

What is a lifetime legacy?

Answer 38

This is a gift made to a beneficiary during their lifetime, after which it reverts back to the estate of the testator.

Question 39

Under what circumstances may a legacy fail?

Answer 39

Ademption.

Abatement.

Lapse.

Public policy.

Witness to a will.

Disclaimer.

Uncertainty.

Question 40

What is the principle of lapse?

Answer 40

Lapse is a situation in which a gift fails because a beneficiary predeceases the testator.

Question 41

In what circumstances will the principle of lapse not apply?

Answer 41

The gift made is a class gift.

A declaration is made against the application of lapse, which must be accompanied by a substitutional gift.

Testator makes a substitutional gift.

s 24 Wills Law of Lagos State & s 33 Wills Act prevent lapse from applying if the beneficiary has a child/issue living after the death of the testator.

Question 42

What is the position of the law if both the testator and daughter (who is named as a beneficiary under the will) die in a plane crash, while travelling together?

Answer 42

s 164(2) of the Evidence Act

provides that where persons have died in circumstances in which it is uncertain who died first, they are presumed to have died in order of seniority.

This ‘doctrine of survivorship’ would thus allow the estate of the daughter of the testator still take the gift under the will, as the presumption is that the older one (the testator) died first.

Question 43

When can a will be revoked?

Answer 43

At any time before the death of the testator.

Question 44

What are the different ways in which a will can be revoked?

Answer 44

By marriage
s 18 Wills Law of Lagos State; s 11 Wills Act.

By making a later will or codicil.

By burning, tearing, or otherwise destroying a will with the intention to revoke.

Question 45

What are the circumstances in which a subsequent marriage will not revoke a will?

Answer 45

Marriage by a donee of a power of appointment.

A will expressed to be in contemplation of the celebration of a marriage:
Re Langston.

A marriage in accordance with customary law: Jadesimi v Okotie-Eboh.

Question 46

What are the principles in Henry v Henry and Biddles v Biddles?

Answer 46

Where there is no express revocation of an earlier will, the court will interpret the later will as an implied revocation of the earlier will if both wills are disposing of the same properties: Henfrey v Henfrey.

However, if the earlier and later wills dispose of different properties in the estate of the testator, the court may interpret both wills as being valid: Biddles v Biddles.

Question 47

What are the requirements for a testator to validly revoke a will in writing?

Answer 47

A will may be revoked by a written declaration of intention to revoke.

Such document must be signed in the presence of at least two witnesses.

Question 48

What constitutes physical and sufficient destruction of a will?

Answer 48

Essentially, destruction must not be merely symbolic.

There must be sufficient destruction accompanied with the intention to revoke the will for revocation of a will to take place by destruction.

Question 49

Where there are other copies of a will, would it be sufficient revocation, if only the original is destroyed?

Answer 49

Yes.

Question 50

Will destruction during insanity or intoxication satisfy the requirement for intention to destroy the will?

Answer 50

No.

Question 51

Does revocation of a will imply revocation of a codicil?

Answer 51

No it does not, the codicil must also be revoked in the same manner as the will is revoked.

Question 52

Cheese v Lovejoy

Answer 52

The testator drew lines across the will and wrote “This is revoked” at the back of the will.

The will was still held to be valid.

Question 53

Perkes v Perkes

Answer 53

The testator was angry with one of the beneficiaries and proceeded to tear up the will into four pieces before he was pacified. He put the pieces back together and expressed satisfaction that the will was no worse than it was before.

The court held the will to be valid.

Question 54

Can destruction be carried out by a third party?

Answer 54

If destruction is by a third party, then it has to be done at the direction and in the presence of the testator, otherwise it would not amount to revocation: In the Goods of Dadds.

Question 55

What is the difference between revival and republication of a will?

Answer 55

Revival of will brings a revoked will back to life, provided that it was not revoked by destruction.

Republication of a will confirms a valid, subsisting and unrevoked will.

Question 56

Would failure to include a residuary clause amount to professional negligence by a lawyer?

Answer 56

Yes.

Question 57

Can a testator freely dispose of their property?

Answer 57

Under the Wills Act, the general principle is that a testator may freely dispose of their property and make their will without any hindrances prescribed by statute, custom or religion.

However, there are three restrictions of testamentary freedom in Nigeria:

1. Reasonable financial provision for family and dependants.
2. Customary law restriction.
3. Islamic law restriction.

Question 58

Who may apply to court for an order to make reasonable financial provision?

Answer 58

Under s 2(1) Wills Law of Lagos State, wives/husbands/children of the deceased may apply to court for an order to make reasonable financial provision.

This right is exercisable within a period of 6 months from the grant of probate.

Persons who may apply also include the parents or the siblings of deceased who immediately before the death of the deceased was being maintained wholly or partly by the deceased.

Question 59

What are key authorities to note for customary law restrictions on disposition?

Answer 59

s 1(1) Wills Law of Lagos State provides for customary law restriction on disposition of estates.

Idehen v Idehen, the Igiogbe (the house in which the deceased lived and died) was subject to customary law and as such could only be devolved to the eldest surviving son of the testator.

Asika v Atunaya, the court ruled against disinheriting the daughters of the deceased based on their rights under s 42(2) 1999 CFRN (as amended)

Question 60

What are key authorities to note for islamic law restrictions on disposition?

Answer 60

Adesubokan v Yunusa: The general principle is that a moslem may freely dispose of their property by their will in accordance with the Wills Act.

Ajibaiye v Ajibaiye: in states where restrictions apply under the Wills Law, a person who is subject to Islamic law cannot dispose of their estate in any manner they desire, and must comply with Islamic law.

Question 61

What are the particulars of information required to prepare a will?

Answer 61

1. Particulars of testator (name and address)
2. Particulars of attesting witnesses (names and addresses)
3. Inventory of the estate
4. Particulars of the beneficiaries
5. Particulars of the executors
6. Instructions on remuneration for executors
7. Instructions on residuary clause.
8. Provisions for substitutional gifts.
9. Particulars of guardians to be appointed for infant children if necessary.
10. Instructions in respect of any previous will or codicil.
11. Composition of the testator’s family.

Question 62

Draft the charging clause of a will.

Answer 62

I DECLARE that Mr. Obi being a legal practitioner shall be entitled to charge and be paid all usual professional or other charge, for business done, services rendered, or time spent by him or his firm in the administration of my estate.

Question 63

Would it be prudent to incorporate the testator’s wishes regarding his funeral in his will?

Answer 63

Since a will is read after the funeral, it would be prudent to advise the testator to notify their executors of their burial wishes in a separate document, so that their wishes may be carried out pending when the will is admitted to probate.