You’ve heard that if you do nothing else to take care of your legal affairs, you should write a Will, and it’s pretty good advice. Writing such an important document can be daunting, but it doesn’t need to be. (see part 1). If you don’t make a Will before your death, state law will determine who gets your property and a judge may decide who Will raise your children (and either or both may not be whom you would have chosen). Therefore, assuming without conceding that writing a Will is actually daunting, it is worth the stress and by the way “where they is a Will there is a way”. A way to save your loved ones a lot of stress.
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Maybe you are thinking you have just one car or just a piece of land, don’t you think it’s best to write a Will and save your family the stress of possible conflict over that just one piece of property by simply drafting a Will?. Let us consider the benefits of drafting a Will.-
- Your properties will be distributed according to your wish.
Without a valid Will, the distribution of your assets will be according to the rules of intestacy – not according to your wishes.
- You decide who you provide for
If you are in a relationship and are not married or do not have a registered civil partnership, you cannot inherit your spouse’s or partner’s estate unless he or she had a valid Will in place. If one person in such a relationship dies without a Will, this can create serious financial hardship for the surviving partner.
- Protect your children:
If you have a child or children, a valid Will is necessary to make arrangements for the children should the parents die. It is extremely important to have a Will in place if the children are under 18 and would need someone to look after their inheritance or to have a guardian appointed for them
- You protect your estate from being contested:
There has been a significant rise in claims being made against the estates of people who have died. Laws in Nigeria allows certain individuals to make a claim for provision from a person’s estate, even if that person never intended to leave that individual any money or assets. By seeking legal advice and making a Will you could significantly reduce the likelihood of a successful claim being made.
More important than drafting a will be “keeping” a Will. The question that then begs for an answer is; where should a Will be kept? Let me give an illustration-
Mr. Johnson was advised by his friend to draft a Will. He properly drafted his final Will and testament and properly executed it in the presence of two witnesses and they did same in his presence. Mr. Jackson passed two years ago his family members are still searching for his final Will and testament amidst chaos on who should run the company he left behind . Mr. Johnson’s story leads us to discuss the proper place(s) to keep a Will. A Will can be kept in the following places:-
- PERSONAL SAFE DEPOSIT BOX.
A Will can be kept personally by the testator. This can be done through various means. It is advisable to keep your Will where none of the beneficiaries or third parties can see it. The content of the Will is supposed to be made known after the death of the testator.
Your home is probably the easiest place for your executors to find your Will since it Will probably be the first place they look if you haven’t told them otherwise.
A safe-deposit box in your home is one possibility, although it may be difficult for your personal representative to access your safe-deposit box after your death except you grant access.
- AT THE PROBATE REGISTRY.
Storage at the probate registry is one of the options of keeping a Will in safe custody. This is the best place to keep a Will. Keeping the Will within the jurisdiction the Will was made is the best alternative. The procedures which a testator must comply with before his Will is accepted and kept at the probate registry can also be an advantage and also operate in favour of the Will, should the validity of the contents of the Will be contested by anyone on the ground that the testator lacked a sound mind when making the Will.
It’s very crucial that the Will submitted for Probate is the latest Will. This will ensure that the correct person is applying to administer the Estate. See: Order 62 FCT High Court Civil Procedure Rules 2018.
- BANKS
A smart way of keeping some of your valuable assets is storing them in the safe deposit box of your bank. Banks have safe deposit boxes, which they can lease out to customers annually, but the only problem is that your executors will have no right to access your stored documents until they have a Grant of Probate.
- WITH A TRUSTED FRIEND OR RELATION.
A Will can be kept with a trusted friend or relation. The most important thing is that they make it available upon the death of the testator. It is advisable to keep it in the possession of a much younger trusted friend or relation. This is because there is a strong presumption that the older will predecease the younger.
- A COPY LEFT WITH THE SOLICITOR WHO PREPARED THE WILL.
A copy of the Will can also be left with the solicitor who prepared it.
Solicitors often offer Will storage without charging anything. It is often believed that the number of Will in storage has a big influence on the value of a solicitors practice. Be that as it may, the solicitor plays a huge role on the storage of a Will.
- EXECUTOR/PERSONAL REPRESENTATIVE APPOINTED IN THE WILL.
Some people also give a copy to their personal representative. Usually the reading of a Will doesn’t happen until after a funeral. So you’d want your personal representative to have a copy on hand, to be able to carry out your funeral wishes.
Contrary to the popular believe that a Will is read in the deceased home, a Will is to be marked and read in the probate registry except the probate registrar thinks otherwise. See: Order 62 of the F.C.T High Court civil procedure rules 2018
Conclusively, funeral wishes, Codicil and Wills are used Interchangeable. This is wrong as they are very different even though they are related. Funeral Wish is a document (could be oral) written by the deceased directing and giving instructions on how his/her burial should be carried out. Notwithstanding, a funeral wish can also be contained in the Will. A codicil is an addition or supplement that explains, modifies, or revokes a Will or part of a Will. A codicil in itself is not a Will and cannot stand as one. While a Will is a legal document written by a person (testator) that contains instructions of his or her wishes to be carried out after his/her death.
After a Will is prepared, it shouldn’t be tucked away and forgotten. Instead, Wills should be reviewed regularly and revised as needed for changes in marital status (e.g., marriage and divorce), family size (e.g., birth of a child or grandchild or adoption), state of residence, substantial changes in financial status (i.e., increases or declines in net worth), death of a designated executor or guardian, and changes in state or federal estate tax laws.
In conclusion, aside the fact that having a Will brings peace of mind, it also implies getting your house in other, more so it is the best gift you can give your loved ones.
References
- The Wills Act
- C.T High court civil procedure Rules 2018
S.A Omotoso is a practicing Lawyer with particular interest in Medical Law. He is a graduate of University of Abuja and the Nigerian law school – Lagos Campus. He is a prolific writer with several published works.
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