By Chief H. O. Onu
The property of a dead person is distributed in Nigeria according to certain laid down rules, the rules maybe that of domesticated English Law or Islamic and or anyone of our various customary Laws depending on where the person is coming from.
The person or persons who succeed to one’s Estate under these rules may have been farthest from the thoughts of the deceased had he made a will. The right to make a will provides an opportunity to dispose of one’s property as one wishes.
It is a right that ought to be exercised by anyone who has any property worth inheriting at his death, especially real estate. Most people differ in making a will until they consider themselves “old enough” or have acquired substantial property.
But death is not a respecter of age. In as much as one can die at any age or anytime it is wise and advisable to always have a will. Nothing stops one from changing his will as often as he feels the need to do so. Since a will doesn’t become operative until the maker dies.
It is the last will that he makes provided that it is valid that dictates the disposition of his property or Estate. For a will to be valid, it must conform to certain rules, laid down rules. The applicable rules depend on whether the will is“English” or “Customary” one.
Wills under Customary Law are very informal. They usually take the form of an oral declaration made voluntarily by the TESTATOR during his lifetime. The TESTATOR must be sane at the time of making the will.
The will shall be made in the presence of witnesses preferably neutral or uninterested persons. The TESTATOR of a Customary Law will just as his Counterpart in the “English” Law – will have a free hand in his/her choice of beneficiary – who could be members of his family or total strangers.
Alternatively, a person desirous of making a Customary Law may do so in writing. As long as such writing is merely intended to provide written evidence of the testator’s intention to make a Customary Law will, no formal requirement is necessary – except of course that it has to be witnessed.
ENGLISH LAW WILL: If however the objective of having a written will is to dispose of the property in a will as understood in English Law, then the will must satisfy the requirements of the WILL ACT 1937. But if the testator intending to make a Customary Law will adopt the strict technicalities prescribed by the WILL’ ACT/LAW, the court would treat it as an English Will. REQUIREMENTS FOR A WILL In order to be valid, a will shall be: (i) In writing (ii) Signed at the foot or end of the document by the testator and or some other persons in his presence. (iii)In the case of someone signing in the presence of the testator himself shall acknowledge the signature in the presence of at least two witnesses.
Where the testator signed himself his signature shall similarly be attested to by at least two witnesses. WRITING the requirement that a will must be in writing does not mean that it must be in the maker’s own handwriting, nor anyone else for that matter, it may be handwritten, typed, printed or any combination of these. If it is handwritten, it may be in ink or pencil or a combination of both. SIGNATURE OF TESTATOR Signature is widely misconstrued. It is not limited to signature proper.
It includes any mark of identity of the testator which he intends should be taken as his signature. A “signature” made by a rubber-stamp, is valid, although not advisable as it is prone to forgery. NOTE: Failure to comply strictly with any of the requirements would render the will invalid. The effect of invalidity is that the testator will be presumed to have died intestate (without leaving a will) and accordingly his property will be distributed according to relevant rules of intestate succession without probably reflecting the wishes of the deceased. RECOMMENDATION: It is recommended that Estate Surveyors in collaboration with legal practitioners and all those involved in property management should improve the knowledge and strengthen the information about making a will to ensure that the distribution of properties of our deceased friends and relatives reflect their wishes and enhance decision making when they might have died. Professionally qualified Estate Surveyors and Valuers should be as much as possible be involved in the execution of Wills.
This will equally reduce and or eliminate acrimony in our families and its attendant endless litigations. Death is not a respecter of age, wealth or status. Consequently we should make hay while the sun shines.
…Chief Onu, an estate Manager writes from Abuja