The law & You: Why You Should Write Your Will
A will is a written statement that ensures that the property of a person is devolved on his heirs according to his express wishes and directives. This makes a will very important as it is a document that speaks after the death of the testator. In property practice in Nigeria, a will may deal with not only real property, but also with personal and movable properties.
The Importance of a Will
1. A will helps a person to determine what happens to his property after his death.
2. It helps him to give any instructions he may wish to be carried out if he is no longer alive.
3. A will is a creation of statute
4. A will is sacrosanct because the wishes of the testator in the will are his last wishes and testament which applies to his declared estate.
The Major Features of a Formal Will
1. It is testamentary, that is, it speaks after the death of the testator. This distinguishes it from other documents which take effect during the lifetime of the testator, for example, a deed which becomes operational upon delivery.
2. It is ambulatory, which means that it is capable of being changed and revoked during the lifetime of the testator.
3. It is revocable as long as the maker is living.
4. It is voluntary which means that it must be independently and freely made without pressure and undue influence from other persons.
5. It is made, signed and witnessed according to the law.
6. It identifies the property and names of the beneficiaries of the gifts in the Will.
Requirements of a Will
1. A will must have the necessary characteristics and comply with the formalities as laid down by law.
2. There must be an intention by the testator to dispose the properties. Where a will complies with all the formalities but there is no intention, then it is not a will. If it complies with all the requirements and there is intention but it does not describe itself as such, it will still be held as a will.
3. The person making the will is called a testator. Where the person is of the female gender, she is called a testatrix. Where a person makes a will, he is said to have died testate; where none is made, he is said to have died intestate. The person entitled to the properties or benefits under the will is called the beneficiary. The personal representatives appointed to administer the estate of the deceased are called executors. But where the deceased dies intestate, administrators are appointed to administer the estate.
4. Many of the disputes over the will of the deceased person deal with allegation or controversy over:
* Lack of due execution of the Will.
* Incapacity of the testator: This is a situation where the testator lacks the required age or mental capacity to make a will.
* Lack of knowledge and approval: Where the testator did not have the knowledge or never approved the content of the will or was induced by fraud or mistake to make the will.
* Undue influence: Where the will was made under pressure (not persuasion) of the testator.
* Forgery: Where the will was forged
* Revocation: Where there is allegation that the will was revoked by marriage, subsequent will or a codicil, destruction, revival of an earlier will or codicil or by alteration or obliteration.
The Advantages of Making a Will
1. To avoid the problems of intestacy; where no will is written, the estate of the deceased will be governed by the rules of intestacy (i.e. customary laws). For example, persons whom the deceased may not wish to benefit from his estate may gain from it, while those whom he may desire to benefit from the estate may be deprived.
2. To have the choice of appointing personal representatives (executors) to administer his estate. By this, he can choose persons whom he trusts and who have his interests at heart to carry out his wishes after his death. This contrasts with a situation where he dies intestate and the courts may have to appoint administrators for his estate without the deceased having any choice in their appointment.
3. To confer extended powers on executors beyond that contemplated in the rules of administration of estate in the jurisdiction. The testator can select and appoint guardians to look after his children if he desires.
4. The testator has the opportunity to make a positive display or demonstration of his wishes and desires. For example, he may desire to give to charity, to give to his friends or mistress; or to say how and where he should be buried.
5. A will saves time and money; this is because the personal representatives derive their authority from the will and begin to act immediately. Where the deceased dies intestate, administrators will have to apply and wait for letters of administration to be issued before they begin to act. The grant of letters of administration is expensive and where an administrator acts on the estate without a grant of probate, his action may be set aside.
6. It may give peace of mind to the testator because he has wound up his affairs and can expect his wishes to be carried out after he is no more.
To be continued …