WILLS: DEFINITION AND EXPLANATION

Aluko Adeyemi & Associates – Wills

Imagine that in an average Nigerian home today, a 40 year old man informs his 35 year old wife that he was going to see his lawyer to write his will, the following conversation will be the likely aftermath of that information.

Wife:  Are you sure you’re okay?

Man: Of course, I am.

Wife: Are you suffering from any ailment you’re not telling me? Do you have another woman or child outside this marriage? Have you started hiding things from me?

Man:  I do really appreciate your concern, but I am hale and hearty. I just believe it’s appropriate one makes a will in the same way one would give their business a structure and register their business with Corporate Affairs Commission.

…………………….

This is a typical conversation between two Nigerians whenever the phrase “I am making my will” comes up. This school of thought is not only particular to Nigeria, it is a human thing, but our context is the Nigerian society.

Making a will does not necessarily mean an individual would die very soon or that he foresees his own death, neither does making a Will mean signing one’s death warrant nor a ritual to be done by old well-stricken in age individuals.

Making a Will can be compared to when a person decides to organize his business and put things in order for an effective output. It is a way of avoiding unhealthy rivalry, fear and insecurity that greet the announcement of a person’s death and to secure adequate protection of loved ones after their demise amongst many other things. This and many more explanations are what this article begs to make.

WHAT IS A WILL?

A Will is a legal document made voluntarily by an individual known as a “testator” explaining how he intends for his assets and liabilities to be shared or settled as the case may be upon his demise. In other words, in a Will, the testator explains if his estate would settle his debt and distribute the remaining asset or the debt and liability be passed down with the asset, which is to be paid by one of the Beneficiaries. A Beneficiary is a person who receives any of the asset or liability shared by the Testator. A Will becomes effective after the death of a testator.

ADVANTAGES OF DRAFTING A WILL

Having laid a background on what a will is, let’s explore the advantages of making a will.

  1. One inevitable advantage is that it enables a testator to express their personal feelings/opinion about persons, things, events, etc., even upon their demise.
  2. It gives testator the satisfaction of having to decide/order their own affairs from their grave. Such testator can continue to direct their affairs, estate or business via the instructions given in their will after their death.
  3. It allows the testator to appoint their desired guardian to take care of their infant children.
  4. An adventurous testator may even go as far as stating in their will how they want to be buried i.e. matters relating to their funeral plans.
  5. It affords the testator a chance to decide how their property is shared after their death unlike one who dies intestate.

Note: a person who does not have an existing Will upon his death is said to have died intestate.

6. It helps the testator avoid/reduce to the barest minimum unhealthy rivalry and envy among the beneficiaries.

7. It affords the testator the chance to protect his loved ones from intruders and meddlesome interlopers who want to reap where they have not sown.

8. Making a Will ensures continuity of one’s estate or put in a different way, continuance of one’s business, legacy and at the same time maintenance of the property.

9. A will can also be used to create a trust fund for persons of interest to the testator

WHO CAN DRAFT A WILL?

  1. A testator.
  2. Any trusted person on behalf of the testator. Most times, the testator’s lawyer drafts the Will on the instruction of the testator.

WHO CAN MAKE A WILL?

Every adult with a sound mind can make a will. This covers a large bracket of people from their twenties up to really old people. Sick people can also make a Will, as far as the illness or old age did not affect the testator’s mind at the time he issued instructions and executed (signed) the Will.

WHAT MAKES A WILL VALID

For a will to be valid, it must:

  1. Be in writing, however there are some Wills made orally according to some native laws and customs. But to be on the safe side, put it in writing.
  2. The testator must have acted voluntarily and without any coercion.
  3. The testator must have a sound disposing mind at the time he wrote the will or instructed his lawyer on the content of the will.
  4. Must be executed i.e. signed by the testator in the presence of at least two witnesses.

WHAT MUST A WILL CONTAIN?

  1. Name of the testator.
  2. All properties, tangible or intangible, assets and liabilities that the will intends to dispose.
  3. Names of Executors.
  4. Names of the Beneficiaries.
  5. In cases where the beneficiary is a minor, who will be the guardian(s) of the minor.
  6. Sometimes burial plans of the testator written in a document attached to the Will.
  7. Other opinions, instructions or information that the testator might want their relatives to know after their demise.

CAN YOU AMEND YOUR WILL?

Yes, A Will can be amended by making a new Will or adding a “Codicil” (supplement, addendum, modification) to an already existing Will. Hence, once a testator changes their mind about a particular subject in their already written will, they can either modify the will by adding a codicil or making an entirely new will. Their choice will depend on how material the amendment they want to make is.

WHERE CAN WILLS BE KEPT?

  1. In a Bank.
  2. With a testator’s lawyer.
  3. A Probate Registry.
  4. A trusted younger relative/friend.

REVOCATION OF A WILL.

Revocation is when a testator intentionally cancels or destroys his Will or when some factors are proved to be existing in a Will, this automatically makes the Will void and ineffective. These factors include:

  1. Fraud.
  2. Suspicious circumstances.
  3. Mistake in the Will.
  4. Undue influence on the testator.
  5. Subsequent marriage- when a single man with a will marries, the existing Will becomes vitiated.

REVIVAL AND REPUBLICATION OF WILL.

Revival of a Will means bringing a revoked Will back to life, provided the Will can still be found.

Republication of a Will however means confirmation or affirmation of the validity and contents of an unrevoked Will.

It is important to note that a Will can also be contested by persons with vested interest in a testator’s estate for a number of reasons, some which have been highlighted under will revocation. When such circumstances ensue, the most appropriate person to contact for advice is a lawyer to help simplify and flog out the issue in the most appropriate quarters.

In conclusion, a Will would only give room for smooth running of affairs upon one’s demise and also ensure that those you don’t want near your stuff when you’re no longer here don’t come near it.

The truth is that drafting a Will does not invite the Angel of death. Please let us do away with the old wives tales associated with the making of a Will. Our next post on wills shall cover types of wills and other matters not dealt with in this post.

Need help drafting a will? Contact us here.

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