Jacob Ipogah

by Barrister Emmanuel Etuizale

Introduction:

When people die suddenly, the family and friends feel a sense of hopelessness as to the administration of his estate, more particularly if the deceased died in testate (without writing a will) and this may lead to the administration of the estate through the application for what is called Letters of Administration. The law has made it possible for the dead to speak from the grave by writing a will in your lifetime. A will is a testamentary document made and executed by a person known as the testator/testatrix stating in detail how he wants to be buried and or how his estate will be administered and shared between and among his family and loved ones. For a will to be valid, the property/money being willed out, known as a bequest, must belong to the testator at the time of his death and not at the time of making the will1. This is why we say a will is ambulatory or testamentary. You cannot give out by will a family property that you inherited jointly with other children under customary law but which has not yet been alienated or partitioned by agreement or otherwise of all beneficiaries.

Another validating requirement of a will is that it must be revocable; this means the testator has the discretion to revoke or amend the will in his lifetime before his death. For a will to be valid it must be in writing2. The only recognized exception to a written will has to do with wills made by members of the armed forces at the war front or mariners on the high sea.

Writing a Will is a Necessity:

Death can hit anyone anytime and anywhere and this is why people are advised to prepare for it and the only civilized way to do so is to write a will; it matters little that you have a few belongings or that belong to a nuclear family, but it matters more if you have more than one wife/husband and much more if you have more children and extended family members. Let me use this medium to remind us of the popular lyrics in a song by the late South African Reggae artist Lucky Dube titled ‘‘Crazy World’’ which goes thus:

‘‘Now as I lay me down to sleep I pray the Lord my soul to keep, And if I die before I wake I pray the Lord my soul to take’’

The above lyrics succinctly capture the futility of man’s efforts and the precarious nature of human life. The industrial revolution, the jet age, and the breakthrough in information, communication, and technology have conspired to put men, (even young men) under intense pressure to meet the social and economic demands of modernity and civilization. Consequently, fewer men grow old before kicking the bucket and more so, people have died in their offices while working, in churches during service, in commercial buses or even while driving, and even on the dinning table such that they could not get to go to bed before answering nature’s final call and some even answered that final call while asleep. The lesson here is that it can be anybody although we don’t pray for it to ‘‘happen to anybody’’ but the fact remains that it will ‘‘happen to somebody someday’’.

Trado-cultural Beliefs:

It is wrong to think, as most people do, that writing a will is of bad omen because it is associated with death when we all know that as William Shakespeare puts it: ‘‘death is a necessary end that will come when it will come’’. A will provides for a convenient way to dispose of property and or monies without any undue interference by unscrupulous relatives especially when your kids are still minors and inexperienced.

Nuncupative and Statutory Wills:

A will may either be Nuncupative– where a man under the custom and tradition, gives verbal instructions in anticipation of death, to his close relatives who are referred to as ‘‘credible witnesses’’, on how his estate should be distributed or shared or Statutory where a man makes a will in accordance with the Wills’ Act 1837 (as amended and applicable in Nigeria as a Statute of General Application).

Legal Requirements of Will Writing:

While the Wills Act is a federal enactment the various states of Nigeria have enacted laws on Wills. For instance, there is the Wills’ Law CAP W2 Laws of Lagos State 2003, Wills’ Law CAP 172 Laws of the old Bendel State (applicable in Edo & Delta states respectively). However, whether a testator decides to write his Will under a state law or the federal enactment, the various states’ law on Will are in pari material with the federal enactment.

In making a Will, the law prescribes a regular procedure that must be strictly adhered to otherwise the will may be declared invalid if challenged in the law court. For instance, a beneficiary under the will must not have seen the will until the death of the testator when the will is read at the Probate Division of the high court. Also, the testator, at the time of making the Will, must be of a sound disposing mind otherwise the Will may be declared invalid where it is established that the testator made the Will without a sound disposing mind. In the old English case of Bankes V Goodfellow3, sound disposing mind was defined as the ability of the testator to understand and have a recollection of his property/monies and what he is giving out including an understanding of the people he is excluding or including in his Will.

In Bankes V Goodfellow’s case the testator suffered from insane delusions that he was pursued by spirits and that a man, long dead, came personally to molest him. The court found that neither of these delusions had any influence on the disposal of his properties/money by will. The court came to this conclusion because the testator, though suffering from insane delusions, had the sanity and clarity of discernment to engage a lawyer to draft him a will and gave instructions on who should take what under his Will.

While the case of Bankes V Goodfellow had to do with mental or insane delusions the court, in Adebajo V Adebajo4, rejected the argument that a will was invalid because the testator, at the time of making the Will, suffered from hepatic failure, gastro-intestinal bleeding, cirrhosis of the liver and diabetes Mellitus. The court observed that these were physical ailments that did not affect the mind of the testator.

For a Will to be valid it must be in writing and duly signed (or thumb printed for illiterates or the blind) and additionally, the courts require blind or illiterate testators to have knowledge and approval of such Wills before they can be admitted to probate. To admit a Will to probate is to officially confirm its validity and authenticity as having been made in compliance with the law. Under the law it is not enough to sign, rather the position of the signature on the will is also very crucial but the law also allows someone else to sign the will at the direction of the testator in the physical presence of at least two witnesses.

Duress and Undue Influence:

A will must reflect the wishes of the testator or testatrix voluntarily made without pressure from any quarters whatsoever. At Common Law, Duress is defined as ‘‘a coercion of the will so as to vitiate consent’’ while Undue Influence is defined as ‘‘Where Influence is acquired and abused and confidence is reposed and betrayed’’.