The Underlining Importance Of Having A Will (Wills Simplified) Pt 1 By S.A Omotoso

INTRODUCTION

When a person is asked to draft a Will, it sounds as scary as a soft reminder of death. It definitely not seen as such a pleasant thing to advice, neither is drafting a Will the most pleasant of tasks. That might explain why so many adults avoid this cornerstone. A recent survey shows that 8 out of 10 Nigerians over the age of 45 do not have a Will and 7 out of 10 will not make one before they pass.  I’ll proceed by laying the proper foundations.

YOU MIGHT ASK WHAT A WILL IS-

The Wills Act states that:

A Will is a testamentary document voluntarily made and executed according to law by a testator of sound mind, where he disposes his properties (real or personal) to beneficiaries to take effect after his death. Simply put; 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. In Nigeria a Will could be either oral or written, oral Wills being Wills made by words of mouth are recognized under our customary or indigenous laws while written Wills are governed by laws and statutes. An oral Will which is also a nuncupative or deathbed Will, is a Will that is spoken to witnesses, but not written. Such Wills are valid only in few states and only in very limited and unusual circumstances. Let’s focus on written Wills.

IMPORTANT TERMS IN WILL

Bearing in mind the aforesaid, we Will briefly explain some important terms related to a Will as follows:

• Testator—a testator is a man or in the case of a woman (testatrix) who wishes to dispose his/her assets to specific beneficiaries upon death, he/she must be with a sound mind.
• Beneficiary—a person who benefits from the asset or estate of a testator or is listed in the Will of a testator.
• Executors— these are trusted individuals appointed by the testator to manage his assets and carry out his wishes after death.
• Testate— a situation where one dies leaving a valid Will
• Interstate —- a situation where one dies without leaving a Will, and in this case what tends to happen is that the estate of the deceased Will be settled by the administration of estate law of his/her domicile before death. But this exists only when the family can identify the deceased properties. I Will give an illustration to shed more light.

Mr. Jackson had five undeveloped and one developed properties in Abuja. Before his demise, he and his immediate family lived in Karu (Nasarawa State).Only his younger brother knew about the properties. When he passed, his immediate family became homeless and his younger brother converted the properties while the deceased immediate family still suffers, totally unaware of the good life they could have lived.. Pathetic story? Well, Mr. Jackson could have avoided this sad tale.

The gratifying advantages shall be highlighted in the second part of this write-up, more so the most important things to provide for in a Will are who shall be your executors, who Will be the beneficiaries of your assets, and in cases where there are minors – who the guardian(s) of the minors Will be.

Considering the fact that nothing could be more vexatious than taking the pain to draft a Will but yet the Will be declared invalid due to an error that could be avoided, I would highlight what makes a Will valid. For a Will to be valid –

1. It must be made voluntarily
2. The Testator must have the mental capacity
3. The Testator must be an adult. The legal age of a person to write a Will is 18years of age and above (Wills Law of Lagos States and some other states). Under the Wills Act, the legal age for making a Will is 21 years
4. A valid Will under the Wills Act must be in writing
5. It must be signed by the testator(maker)
6. The signature of the testator must be acknowledged by at least two witnesses
7. The testator(maker) must be of sound mind
8. It must clearly name the beneficiary or beneficiaries
9. It must clearly identify the property(ies)

Default In any of these would affect the Will in one way or the other.

It is important to note that a beneficiary to a Will should not attest to the Will otherwise he Will lose the benefits (gifts) he should have gotten. In a situation where you foresee that you could be the beneficiary of a Will, you should carefully bring this to the attention of the testator without sounding too confident or ambitious.

Furthermore, while it is advisable to engage the services of a Lawyer to guide in drafting your Will, where you are restrained due to circumstances, you can draft your Will once you understand the contents.

Quick overview of what should be included in a Will:

• Testator (maker) details
• Executor (person to distribute the estate of the deceased) details
• Details about your assets and how it should be distributed to each beneficiary
• Beneficiary details
• How your estate (property) should be distributed
• Guardian details (where child or children of the deceased are below 18)
• Date and Signature

Keep in mind you need two witnesses present. Ensure you plan and schedule a time for all parties to witness and sign your Will. Witnesses should sign the Will with their signature as well as their full name in print lettering, address, and occupation to ensure easy identification. Remember to date your Will to ensure it carries the most current version of your Will is executed.

SIGNING PROCEDURE

The Will should be signed in the presence of your two witnesses and in the spaces provided you should;

• Date the document
• Sign your name using your “usual” signature where indicated whilst your witnesses watch
• Ask your witnesses to add, in your presence, their “usual” signatures where indicated, asking them to print their names, addresses and occupations clearly for identification purposes.

PLEASE NOTE: Wills can be altered before signing, but the testator, and both witnesses, must sign or initial in the margin or near the alteration. If this is not done, the court will assume that the alteration Will not be effective unless the court waives the formalities. Once a Will has been signed there can be no alteration, either by crossing out or writing in new clauses, unless the new clauses are executed in the same manner as a Will.

Finally, more important than drafting a Will is knowing how and where to keep and safeguard it. This Will be discussed in the next part. It is imperative to say that making a Will is very important and should be embraced by all, to protect the interest of loved ones and ensure one’s assets are properly managed. The popular notion that drafting a Will reminds us of death should not be a deterring factor, especially because when there is a Will there is a way. Drafting a Will might be the only way to show your loved one that you truly love them.

REFERENCES

• The Wills Act
• C.T High court civil procedure Rules 2018

SHORT BIO

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.