Writing a will v Intestacy in Nigeria, Mrs. Akinlawon SAN shares on why it is necessary to ‘speak from the grave’.

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                               St. Agnes Catholic Church Maryland, Lagos

                                                          &

                                    Catholic Lawyers Association

                                    PUBLIC LECTURE ON WILLS

                                                     Titled

                                     “SPEAKING FROM THE GRAVE”

                                         Sunday, 9th May, 2010

 Delivered by:  TITILOLA AKINLAWON (SAN), President, Catholic Lawyers Association St. Agnes Parish

 

 

 

     SPEAKING FROM THE GRAVE

 

  1. INTRODUCTION

 

It is inevitable that at one time or the other we all would die and leave this world. What then happens to all the assets we have laboured tirelessly to acquire over the years? Who inherits the said    assets? Would it be your spouse and children, as is basically the desire of most people? Or would it be your other close relatives e.g your siblings, that would take all your assets to the detriment of your beloved spouse and your treasured children? Or even worse still, would it be the distant relatives who did not “encourage or assist you in any way” while you were labouring to acquire these assets?

 

What about your precious infant or minor children; in whose care will you want them to be, when you are no more? Would you want to leave such children to the care of their surviving parent or would  you rather that your siblings take up the care of your children when  you are gone? Or worse still would you rather pass on without bothering to leave word as to how your children should be brought    up?

 

You can decide to speak from the grave as to who inherits your hard earned assets and who takes care of your beloved children. You just might be able to control what happens after you, by speaking from the grave.

 

Now let us go on a journey of discovery as to why and how you can speak from the grave.

 

  1. WHY SPEAK FROM THE GRAVE

 

  1. It is most important to speak from the grave for the purpose of making dispositions of one’s assets to take effect on or after death. The testator has the liberty to dispose of his property in the way he likes and no one can modify his will. In the case of Igboidu Vs Igboidu 1999 1 NWLR (Pt 585) 27 the Court of Appeal held that a testator’s wishes must prevail. A Will should be allowed to speak in the way made and must not be modified by any one or Court to suit an imaginary intention of the testator

 

  1. It is also important to speak from the grave so as to enable the deceased appoint executors or other persons who he believes are competent to manage his assets.

 

  1. Speaking from the grave would also enable the deceased to appoint guardian(s) for his children who are minors.

 

  1. This would also enable the deceased to appoint a reliable person to exercise all the powers of the deceased.

 

  1. The deceased would be able to revoke or alter the way he wants his assets or children to be dealt with.

 

  1. When a deceased person speaks from the grave it enables him to exclude rules of inheritance under Native Law and Custom, where, for example, the wife or the husband does not inherit the assets of a  deceased spouse.

 

  1. It allows the person chosen by the deceased to take immediate control of the deceased assets on death without much ado.

 

  1. Above all, it gives the deceased peace of mind when alive to know that he had done what is necessary to secure the future of his loved ones.

 

  1. HOW THEN DO YOU SPEAK FROM THE GRAVE?

 

That is the Million Naira question. Indeed one can speak from the grave by making a Will

 

  1. WILLS

 

A Will can be defined in so many ways;

It may mean an instrument or all the Testamentary documents by which a Testator’s property is disposed of or devised .

 

In Osborne’s Concise Law Dictionary Will is defined as a “disposition  by which the person making it (the Testator) provides for the distribution or administration of his property after his death. It is always revocable by him.

 

A Will may also be defined as a declaration made in accordance with   the formalities required by statute of the intention of the person   making it with regard to matters which he wishes to take effect  upon or after his death.

 

It may also mean all the unrevoked testamentary documents left by   the Testator. A Will is a document which is of no effect until the    Testator’s death, until then it is a mere declaration of his intention, and is at all times until such death subject to revocation or variation.

 

A Will is a Testamentary and revocable document, voluntarily made    and executed according to Law by a Testator with a sound disposing mind, wherein he disposes off his property subject to any limitation imposed by law and wherein he gives such directives as he may   deem fit to his personal representatives otherwise known as his executors, who administer his estate in accordance with the wishes manifested in the Will.

 

Finally a Will is a document by which a person makes a disposition     of his property, real and personal to take effect after his death to         avoid being governed by the rules of intestacy. A person who makes       a Will is a Testator, if male and a Testatrix, if a female.

 

  1. BRIEF HISTORY OF WILLS

 

The concept of Wills in the English form can be traced to England after the Norman Conquest of 1066 where a man had the power to   dispose of both his real and personal properties.

 

Before independence in 1960, Nigeria was a colony of Britain and        due to Britain’s Imperial Sovereignty; the general laws of England were introduced into Nigeria as its own laws. The general laws of England consist of the common Law, the doctrines of Equity and the enacted English statutes.

 

The Common Law and doctrines of Equity are those laws and    principles laid down by the English Courts while the Enacted English  statutes are laws enacted by the Parliament of England.

 

The general laws of England, were introduced into Nigeria via   Reception Laws; the first of its kind was ordinance No. 3 of 1863. Section 32 of the Interpretation Act 1964 provides for the reception     into Nigeria of the Common Law of England the doctrines of Equity  and the statutes of general application which were in force in  England on the 1st day of January 1900.

 

From the foregoing, statutes of general application, which were  enacted in England, are applicable in Nigeria so long as they were in force in England on the 1st day of January 1900. On this basis, the Wills Act of 1837 enacted in England to govern testate succession, were introduced into Nigeria.

 

III.     APPLICABLE LAWS ON WILLS IN NIGERIA

 

The statutes applicable in Nigeria on Wills include:

 

  1. The Wills Act of 1837 which applies to states in Northern and some parts of the Eastern States of Nigeria.

 

  1. The Wills Amendment Act 1852 which also applies to states in Northern and some parts of the Western States of Nigeria.

 

  1. The Wills Laws of Western Region 1958 which applies to the States comprised in the former Western Region including Edo and Delta States.

 

  1. The Wills Law Cap w2 Laws of Lagos State 2004.

 

  1. Armed Forces Act No. 105 of 1993 which was enacted by the Federal Government to govern persons subject to Service Laws i.e. Officers of the Army, Naval and Air Force.

 

  1. The High Court of Lagos State (Civil Procedure) Rules 2004.

 

  1. NATURE OF A WILL

 

Wills have two fundamental characteristics. They are ambulatory, which means that a Will takes effect from the death of the Testator. Consequently any property dealt with within a Will but disposed of  by the Testator before his death cannot be affected by the Will.  Conversely, the property acquired after the making of the Will may  be disposed under its terms.

 

A Will is always revocable in the sense that it may be completely revoked, altered or added to by the Testator during his lifetime as long as he complies with the appropriate formalities.

 

  1. CAPACITY TO MAKE A WILL

 

Under all the applicable laws, every person has the capacity to make a Will even if the person is subject to Customary Law. Of course to this rule there are some exceptions. These are:

 

  1. Infants or Children

Children or Infants cannot make a valid Will. This is to be expected  if it is considered that a minor lacks capacity to enter into a valid   contract except for necessities. Of course, if the infant is in actual   military service then he may be able to make a privileged Will   which  would be discussed later.

 

  1. Persons of Unsound Mind

Persons of unsound mind or a lunatic cannot make a valid Will irrespective of his age. Since a Will is the express intention of the   maker, the Testator must of necessity possess a sound mind and memory, so as to enable him understand the nature of the act in which he is involved.

 

The unsoundness of mind of a Testator would clearly invalidate his Will. The relevant time for soundness of mind is the time at which   the Will was made. A Will made before the Testator becomes insane or during a lucid moment, remains valid even though the Testator  subsequently becomes of unsound mind. There is always a  presumption in favour of the fact that the Testator was sane and   capable, when the Will was made; it rests on the person challenging the Will to prove lack of capacity on the part of the Testator on  grounds of insanity.

 

iii.      Blind or Illiterate Person

A blind person or an illiterate person can make a valid Will but with a lot of caution when the Will is to be executed. It must be executed strictly in accordance with the Law i.e. Illiterates Protection Law. The Will must be interpreted to the illiterate person in the language he understands and it is only when he is in agreement with the contents that his thumb impression should be affixed in the presence of two witnesses.

 

In the case of a blind person, care must be taken with regard to the execution so as to eliminate fraud.

 

iv       Fraud or Coercion

Proof of fraud or coercion in the execution of a Will invalidates it. In    a situation where the intention of the Testator was changed during  or even after execution of the Will, this would amount to fraud and if this can be proved the Will would be declared void.

 

Where, for example, a wife refuses to give her husband food or  normal consortium with a view to forcing him to give his property to   her in his Will or for the husband to dispose of his assets in the    manner prescribed by the wife, then the Will would not be valid, if the coercion can be established.

 

v        Married  Women

Under Section 8 of the Wills Act 1837, married women lacked    testamentary capacity, but this has been altered by Section 1 of the      Married Women Property Act 1882 and Section 3 of the Married Women Property Act 1893. Both statutes are statutes of general application in Nigeria. The Wills Law 1958 and Wills Law of Lagos          State do not limit the Testamentary capacity of married women.

 

  1. PRIVILEGED WILLS

 

Privileged Wills are those which are not required by law to comply with the requirements both as to capacity and form. Section 276 of  Armed Forces Act Cap A20 Laws of the Federation of Nigeria provides:

 

“1.     A Will made by a person subject to service law under this Act shall be valid for disposing of any money or personal property which is   due or belongs to him at his demise if it is in writing and signed or acknowledged by him in the presence of, and in his presence attested by one witness, being an officer of the forces or any government medical officer.

 

  1. A Will made under subsection (1) of this section shall be deemed well made for the purpose of       being admitted to probate, …….”

 

Similarly Section 9 of the Wills Law applicable in Lagos, Ogun, Oyo, Osun, Ondo, Ekiti, Edo and Delta States provides that, any soldier   being in actual military service or any member or seaman being at    sea may dispose of his personal estate without complying with the requirements as to capacity and form.

 

It is that lack of compliance with the requirements as to capacity and form that makes such Will privileged.

 

VII.    FORMAL REQUIREMENTS OF A WILL

 

Apart from privileged Wills, for a Will to be valid it must comply with    the formalities stated in all the relevant Wills Law or Act. The        following formalities are obligatory:

 

i         The Will must be in writing. Although the Law requires that a Will must be in writing and not oral, (Section 6 Wills Law Lagos State) no particular form of writing or any special substance, is prescribed. The established practice is to write Wills on durable paper that would stand the test of time.

 

ii        The Will must be signed by the Testator or by some other person in his presence and at his direction at the foot or end thereof.

 

iii                 The Testator’s signature shall be made or acknowledged by the Testator in the presence of two witnesses.

 

iv       The two witnesses who must be present at the same time must then attest and subscribe the Will in the presence of the Testator.

 

v        No obliteration, interlineations or other alteration made in any Will after execution thereof shall be valid or have any effect except such alteration shall be executed in the same manner the Will was executed.

 

VIII.   REVOCATION AND REVIVAL OF WILLS

 

i         Revocation: Express or implied. An earlier Will may be revoked by a later Will as long as the formal requirements are observed in  the later case. Such revocation may be effected by an express clause or by necessary implication from the wording of the Will.

 

An Implied revocation occurs where the provisions of the later Will  are inconsistent with those of the earlier one. Thus, where the     Testator in an earlier Will gave specific property to X and in a subsequent Will bequeathed the same item to Y, the latter revokes    the former even though no specific words to that effect were used.

 

ii        Revocation by destruction: A Testator by himself or by some person in his presence and by his direction with the intention of revoking his Will may burn, tear or otherwise destroy the same. The important elements here are that

 

  1. The destruction must be effected by the Testator personally or by some person in his presence and by his direction.

 

  1. The destruction must be with the clear intention to revoke the will. Thus if the destruction was effected when the Testator is not in control of his mental faculties owing to the influence of alcohol or insanity, he cannot be said to possess the necessary intention.

 

iii       Revocation by marriage: Section 15 of the Wills Law provides that “Every Will made by a man or woman shall be revoked by his or her marriage (other than a marriage in accordance with Customary Law)”

 

There is a statutory exception to this rule. This exception is where a Will was made in exercise of a power of appointment when the  estate thereby appointed would not in default of such appointment, pass to his executor or administrator or other person entitled on   intestacy. Consequently, where the exercise of a power of   appointment is involved, revocation by marriage is restricted only to   those cases in which the instrument creating the power provides that in default of appointment the property is to devolve as on intestacy.

 

iv       Revival of Wills

A revoked Will can only be revived by the re-execution thereof or by   a codicil duly executed showing an intention to revive the Will.

 

  1. WHAT NEXT IF YOU FAIL TO SPEAK FROM THE GRAVE

 

Having considered how to speak from the grave, I think this is a  proper place to consider what happens when one chooses not to   speak from the grave. In essence, what happens to a deceased  estate when there is no Will? What happens to the estate of an  intestate would be determined primarily by the nature of his marriage.

 

  1. Marriage Under the Act

For a deceased person who is married in the Church or Under the Marriage Act, and dies intestate, his estate would be governed by   the provisions of statute. In the case of Lagos, it is the  Administration of Estates Law Section 10 of the Law provides that      “where a person dies intestate and administration is granted under this Law in respect of his real and personal estate, that estate shall be deemed to have been vested, from the      date of his death until administration is granted, in the Chief      Judge….” Section 49 of the same Law stipulates that the estate   of an intestate would be distributed as follows:

 

i         If the intestate leaves a spouse but not children and no parent or brother or sister then the surviving spouse inherits the estate.

 

ii        If the intestate leaves children whether he had parents or siblings then the surviving spouse shall take the personal chattels absolutely and 1/3 of the real estate while the children would share the    remaining 2/3.

 

iii       If the intestate leaves no children but a spouse and a parent or  siblings then the surviving spouse shall take the personal chattels   absolutely and 2/3’s of the real estate, while the parent takes the remaining but where there is no surviving parent then it goes to the siblings.

 

iv       If the intestate leaves children but no spouse then his estate would   devolve on his children.

 

v        Where the intestate leaves no spouse or children but both parents, then the parents shall inherit equally.

 

vi       If the intestate leaves no spouse and no children but one parent then   the surviving parent shall inherit absolutely.

 

vii      But where the intestate leaves no spouse, children or parent then  the estate would go to his siblings of full blood, if there is none,  then   siblings of half blood. In the absence of this, then   grandparents, if none, then uncles and aunts of full blood. In the absence of this then uncles and aunts.

 

viii     In default of any of the above, the estate of the intestate shall belong to the state as bona vacantia and in lieu of any right of      escheat.

 

Where the intestate, in the alternative, is married under native Law    and Custom i.e in a situation where all the husband did       was    to carry wine and pay dowry under Igbo Custom or underwent  engagement under Yoruba Custom without going ahead to marry  his wife in the Church or going to the Marriage Registry, then in intestacy his estate would be regulated by his custom.

 

  1. Marriage Under Customary Law

The distribution of a deceased’s estate under Customary Law is based on the Customary doctrines of inheritance and succession of  property. These doctrines are governed by the general principle of  lineal descent along paternal or maternal lines. Paternal lines are  lines of descent traced through the father while the maternal lines are lines traced through the mother.

 

The Customary Law rules in Nigeria are different depending on the     various ethnic groups. Under Yoruba Customary Law for example,   the mode of distribution depends on whether the disposition is by a man or woman. Where a woman dies, her husband inherits all her  properties, except her share of family property, which reverts to her   maiden family i.e her family before marriage. Where it is the man that dies, his children inherit.  A woman is not allowed to inherit her  husband’s property and where the deceased has no children, the  estate devolves on his brothers and sisters.

 

The importance of speaking from the grave cannot be over emphasized, because should a man fail to do this and die intestate, if he is subject to Yoruba Customary Law, his wife would be left with nothing.

 

The Benin Customary Law of inheritance adopts the principle of  primogeniture. After the death, the deceased is given his first burial      and all the children take charge of the estate pending the second burial. The eldest surviving son of the deceased inherits the house  where the deceased lived in his life time which is called “Igioogbe”   after the second burial. Here also it is the children that inherit the   estate of the deceased and the wife is also left with nothing. In a situation where the eldest son is still a minor, of course, the chaos     and confusion that would follow can be better imagined. Therefore a   man who is subject to Benin Customary Law should endeavour to speak from the grave, to enable him make proper provision for the         members of his family.

 

The rules of Customary Law on succession in Igbo land are not   uniform. When a man dies, all of his property passes to his eldest son, who is called Okpala. Where he has more than one wife, the  eldest sons of the wives inherit jointly. The eldest son must manage and administer the estate on trust for the benefit of the whole family, his brothers especially. The eldest son also inherits his father’s personal staff, called the “Ofo”, other items of worship, his  title, if any, and the Obi or place where the father lived before his  death. Where there are no children, the deceased’s brothers or   uncles inherit, but only as trustees or custodians to administer the  deceased’s estate, for the benefit of the deceased’s family.

 

You would all agree with me that this is not usually the situation as   the brothers or uncles usually take over the deceased’s property and  instead disinherit his family.

 

In most parts of the East, a widow cannot inherit her husband’s Estate when he dies. Infact, she is seen as a chattel or as part of the deceased’s property to be inherited by his heir. In Idoma, for example, the brother of the deceased as next of kin inherits the   deceased’s property including the wife and children.

 

In the North, indigenous Native Laws and Customs as well as   Islamic Law of Inheritance govern the distribution of the deceased’s  estate. Under indigenous Native Law and Customs, depending on  the ethnic group and tribe, it is generally accepted that the first in      line as heirs to the deceased’s property, are his sons and next, his brothers. Females are excluded from inheriting a deceased’s  property although they inherit their mother’s moveable properties.

 

Under Islamic Law, it is believed that the deceased’s property should be used primarily to support those persons whom he was obliged to first support in his life time and who have suffered greatly by his death.

 

  1. Infant Children

What happens to infant children of an intestate? Who has the   obligation to join with the surviving parent to take care of the    children? Again, this would be determined by the type of marriage      contracted by the intestate.

  1. Under Statute

If the intestate got married under the Act or in church, then statute   would apply. This would be the Guardianship of Infants Acts 1886     and The Childs Rights Act.

 

Under the Guardianship of Infants Acts, both the father and the mother have power to appoint persons to act as guardians of an     infant after their respective deaths, if the child is then an infant. An infant in this regard would be a child under the age of 18 years. No     special words are necessary in making an appointment.  Testamentary guardianship may be made to continue during     infancy.

 

A guardian appointed by a deceased parent acts as guardian jointly    with the surviving parent, unless the surviving parent objects to his action. If no guardian has been appointed by a deceased parent,   or if such guardians are dead or refuse to act, the Court may, if it   thinks fit, appoint a guardian to act jointly with the surviving parent.

If the surviving parent objects to any guardian appointed by the  deceased parent, or if such a guardian considers that the surviving         parent is unfit to have the custody of the infant, the guardian may           apply to the Court, and the Court may either refuse to make any           order, in which case, the surviving parent remains the sole guardian or may order that guardian to be joint guardian with the surviving     parent, or may order that the guardian be sole guardian.

 

  1. Under Customary Law

If one thinks that the issue of guardianship of children is a bit  complex, what then does one say about a situation which is      governed by Customary Law.

 

This obtains where the intestate contracts marriage under Native  Law and Custom. It is presumed under most Customary Laws in     Nigeria that the child belongs to the father. Where the father dies   without making formal provision for the infant children then such  children are left to the care and custody of the father’s relative. The  mother of such children would have no say as to what happens to the children since they are not hers, but the father’s.

 

The infant children of a male intestate, whose estate is subject to Customary Law, would leave the welfare of his beloved children to the mercy of his relatives. Certainly relatives would first attend to the welfare of their own children before thinking of the welfare of  the children of the deceased.

 

 

CONCLUSION

Having heard what obtains in both situations i.e speaking from the grave or deciding to keep quiet, the choice is now yours. Would you rather not want to speak from the grave?

 

TITILOLA AKINLAWON (SAN).

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