Understanding Wills in Nigeria: A Guide to estate planning

Despite knowledge of the inevitable fact that everyone will eventually die, it is quite fascinating that Nigerians cringe whenever they are told to prepare a Will. In fact, another way to threaten a Nigerian with death is by telling him/her to start preparing their will.

What is a will?

A will can be defined as a testamentary document, voluntarily made and executed according to law by a testator with testamentary capacity wherein he bequeaths his assets to beneficiaries, and give instructions to be carried out as he deems fit.

Black's law dictionary defines a will as “An instrument, executed with the formalities of law, by which a person makes disposition of his or her property, to take effect after death” - Black’s Law Dictionary, 11th ed., 2019.

A codicil on the ither hand is “a supplement or addition to a will; it may explain, modify, add to, subtract from, or confirm and republish, and is to be deemed part of the will” - Black’s Law Dictionary, 11th ed., 2019.

It is worthy to note that; a Will can exist without a codicil,  a codicil cannot exist without a Will.

The whole idea behind a Will is that someone who had assets either in form of houses, cars, shares, gold, cash, etc. makes plans for what should happen to those assets when the person dies. It recognizes the fact that death is real, and that all we can do is prepare for it, rather than avoid the inevitable.

There are a lot of situations where a person dies intestate (without a Will) so members of the deceased's family are bullied and prevented from partaking in the sharing of the assets. Ordinarily, if the deceased had died testate (with a will), the deceased would have shared his/her assets how he/she deems fit.

Features of a Will

A Will has certain features. They include;

It should be in writing; it should be executed in accordance with the law (i.e. by the testator in the presence of at least 2 credible witnesses or by someone delegated by the testator to sign but in the presence of the testator and at least 2 credible witnesses);it is testamentary (takes effect on the death of the testator); it is ambulatory (can be revoked anytime before death); it must be made voluntarily (without coercion, force, deceit, blackmail, duress); the testator should have testamentary capacity (right state of mind); must dispose of a gift; should identify the gift that is being given and to whom is it being given to.

Types of Will

1. Formal Will
2. Nuncipative Will
3. Privileged Will
4. Holographic Will

Gifts in a Will

Gifts can be classified as major and others

For major, we have:

(i) Specific gift

(ii) Demonstrative gift

(iii) General gift 

SPECIFIC GIFT: From the name, you can guess what it means. This type of gift can be easily traced and identified from the words used in the Will. The words reveal the nature of the gift, the source and particulars of the gift. Mostimes, the word "MY" preceding the details of the gift is used to identify this type of gift in a Will. A possible issue with this type of gift is that the particular gift may no longer be available at the time the testator dies. This is know as failure by ademption. A solution to this problem could be the addition of a substitutional gift clause

DEMONSTRATIVE GIFT: This type of gift where the testator instructs the beneficiaries to be satisfied out of a specific fund or pool of property . An example of this type of gift is where the Will states:  'I give one of my houses in Awolowo Road, Lagos to my eldest daughter’.

GENERAL GIFT: This type of gift is not easily identifiable. The words used don't reveal the source or particulars of the gift but just indicates that a gift should be given to the beneficiary. The good thing about this type of gift is that in case it is no longer available at the time of the testator's death, a similar gift can be used. It can most likely fail where there are no sufficient gifts available to satisfy the legacy. This is known as failure by abatement.

Besides these major gifts, there are other gifts like; pecuniary gift, conditional or contingent gift, annuities, residuary gift, etc. In the event that a Will provides for how the testator's assets should be shared but there a remaining assets that were not allocated or failed due to one reason or the other, it will be referred to as a residuary gift. In order for assets like these not to be captured in the Will, it is advised to always have a vital clause in a Will known as the "residuary clause". The importance of this clause cannot be over-emphasized, as it aids to prevent partial intestacy.

When can gifts in a Will fail?

There are certain situations when a gift in a Will can fail. They include;

(a) A gift will fail where there are certain elements that vitiate the contract like fraud, undue influence, mistake, suspicious circumstances, etc

(b) Ademption (where a gift fails due to the fact that the specific gift no longer exists when the testator dies.

(c) Lapse (where the beneficiary dies before the testator).

(d) Operation of law (where the law provides certain circumstance(s) when a gift will fail.

(e) Public policy

(f) A gift will fail when the beneficiary doesn't want the gift.

(g) A conditional gift will fail when the condition is not met.

(h) Abatement (where a gift fails due to insufficient assets to satisfy the gift).

(i) A gift will fail when the it is eventually found out that the gift/property/asset is not even owned by the testator.

Can a Will be cancelled or revoked? If yes, how?

Yes, a will can be revoked by either of the following ways:

1. A will will be revoked when the testator subsequently marries under the Act. - s 18 Wills Act.
2. By personally destroying the will or someone else destroying the will in the presence of the testator and with his authorization, either by tearing, burning, with the intention of revoking the will.
3. By executing a subsequent Will or Codicil.
4. A letter stating the testator's intention to revoke the will should suffice, in so far as it complies with s 9 Wills Act, which entails signing in the presence of at least 2 witnesses.

In conclusion, a Will is an important aspect of estate planning, as it provides clarity, protection, and peace of mind for the testator and his/her dependents. If you create a valid Will, you ensure your assets are shared as you deem fit. It will also reduce potential conflicts, and safeguard the well-being of your family and dependents