Daily Law Tips (Tip 608) by Onyekachi Umah, Esq., LL.M, ACIArb(UK)
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REQUIREMENTS OF A VALID/GENUINE WILL.
Dead men don’t talk; however, their WILLS speak for them. A “WILL” contains the last wishes and intentions of a dead person towards new ownership and management of his property. Courts will often respect and uphold the intentions of the dead, where such intentions are written, clear, lawful and proven to have been willfully made by the dead. To avoid fraud, mistake and ambiguity, every WILL must be made in line with the law for it to be valid and accepted by the courts. Consequently, there are fixed requirements for a WILL to be valid/genuine. By the way, the person propounding (claiming/asserting) the existence of a WILL must prove its validity and thereafter, any person challenging the validity of such WILL must submit his contention/opposition.
Below are the requirements, as reiterated by the Supreme Court of Nigeria in 2020 and 2019 in the cases of DAWODU v. ISIKALU & ORS (2019) LPELR-46435(SC) and ANYA v. ANYA & ORS (2020) LPELR-49386(SC), respectively.
In the case of DAWODU v. ISIKALU & ORS (2019) LPELR-46435(SC), the court stated that:
1. “ I must stress that an overriding condition for the validity of a will is that it must be completely free from any suspicion or suspicious circumstances whatsoever and the Court, unless the suspicion or suspicious circumstances is removed, will pronounce against it and refuse probate. See Madam Olufunso Okelola V. Miss Adebisi Boyle (1998) LPELR-2439 (SC)”. Per MUSA DATTIJO MUHAMMAD, J.S.C ( Pp. 13-15, paras. F-B )
2. “No Will shall be valid unless: – (a). It is in writing. (b). It is signed by the testator or signed in his name by some other person in his presence and by his direction in such a place on the Will so that it is apparent on the face of the Will that the testator intended to give effect by the signature of the writing signed as his Will; (c) the testator makes or acknowledges the signature in the presence of at least two witnesses present at the same time. (d). the witnesses attest and subscribe the Will in the presence of the testator but no form of attestation or publication shall be necessary.” Per JOHN INYANG OKORO, J.S.C ( Pp. 17-19, paras. E-D)
In the case of ANYA v. ANYA & ORS (2020) LPELR-49386(SC), the court stated:
1. “… a person who desires to make a Will must satisfy the requirements of law for the Will to be valid, else it will be invalid”.
2. “The burden, however, for the proof of validity of a document (will), the genuineness or authenticity thereof lies on the person propounding it and once this is satisfied, the burden is cast upon those attacking it.”
3. “It is trite law that for a will or testamentary intention of a deceased person which ought to be respected, to be given effect to, there must be absolute compliance with the requirements of the Wills law”.
4. “ … the Will satisfied all the formal requirements of a valid Will; that there was cogent evidence that the testator, Chief O.U. Anya, had the mental and educational capacity to make a Will. There was also evidence that the deceased had no disability with his eyes and that 2 persons (Legal Practitioners) witnessed him append his signature to the Will before they subscribed to same”
My authorities are:
1. The judgment of the Supreme Court of Nigeria in the case of ANYA v. ANYA & ORS (2020) LPELR-49386(SC)
2. The judgment of the Supreme Court of Nigeria in the case of DAWODU v. ISIKALU & ORS (2019) LPELR-46435(SC).
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