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Wills and You

Obare Princess Dafiaghor - 18 Jan, 2018 - read

  • Will
  • property
  • estate

Most people have not made a will but we all know we should! Many people die without making a Will because they tend to shy away from the definite reality that no person can live forever. The truth? If you have a spouse(s), children and people or causes you care about and wish for them to be taken care of even when you are no longer around, then you should consider making a Will.

What is a Will?

A Will is a Legal document setting out who gets part or all of your property when you are no longer around. A person who makes a Will is called a testator/testatrix. When a person dies without leaving a will, such a person is said to have died “intestate”. Intestacy also occurs when a deceased person has left a will that only deals with part of his estate. A person named in the Will to carry out the provisions of the Will is called an executor.

Attributes of a Valid Will?

A valid Will must be in writing and signed by the maker in the presence of two independent witnesses who must be present at the same time when the testator signs in the Will. The witnesses do not have to sign at the same time, but they must sign in the presence of the testator. It is important to note that a witness cannot be a beneficiary of the Will. However, an executor can be a beneficiary. Another important thing to note is that a Will can be set aside on grounds of fraud, mental incapacity or undue influence on the testator.
A Will is valid only if made by a person having a sound mind and the necessary mental capacity at the time the Will was made. An insane person cannot make a valid Will but if he recovers his sanity, he can re-execute the Will with his attesting witnesses in order to bestow validity on the Will.
By the provision of section 5 of The Will Law of Delta state, any adult of sound mind can make a Will as long as you attained the age of 21. Generally, anybody of the statutory age with the requisite mental condition that is with sound mind and memory can make a Will. Illiterate or blind persons can also make their Will provided that a special attestation clause is inserted to show that the illiterate or blind person appeared to perfectly understand and approve of the Will. The law however excludes soldiers, airmen and mariners from the strict provisions for making valid Wills. As such, even minors who are soldiers, airmen and mariners can make valid Wills.

Why Should I Make a Will?

It’s not really a case of why you should make a Will but of why you shouldn’t fail to. The following are just some of the reasons you should not fail to fail to make a Will:

  • A person who dies intestate runs the risk of leaving behind trail of stress, expenses and family feuds.
    One important reason for making a Will is to make sure that, after death, your property is distributed in the way you wished it to be because a Will enables you to leave clear instructions about how your estate is to be distributed.
  • A will allows you make specific bequest to individuals of your choice.
  • A will enables you achieve your intentions, desires and wishes for assets and at the same time dispel your anxieties over your affairs when you are no longer around.
  • A will displaces devolution by Customary Law. In the absence of a Will, the bounties of a deceased person could devolve to people outside his contemplation but entitled under customary law to share in his estate.
  • A will displaces devolution by the Statute. In the case of a deceased married under the Marriage Act, the spouse and children of the deceased generally take priority in sharing the property of the deceased in a laid down proportion. Imagine the common scenario of disloyal spouse and children.
  • A Will gives you the assuring opportunity of nominating your executors and personal representatives who would ensure that your wishes are carried out.
  • A Will allows you to reward the loyalty of persons who have served you well in your lifetime.
  • A Will lets you appoint guardians of your choice to take care of your children, if they under age at the time of your death, until they come of age. You can also make financial arrangements for your under age children.
  • It is cheaper to process application for the grant of probate for the grant of Letters of Administration which is required if the deceased died intestate.
  • A Will helps to foster family harmony and reduces the possibility of feud and dispute among family members.
  • A Will is revocable and the testator is free as many times over as he wants to alter, amend or even cancel the Will before his death.
  • If you are married with children and you intend to leave some of your estate to your parents but you die without making a Will, according to the rules of intestacy, your parents could get nothing from you.
  • If you have young children and your spouse passes away shortly after your death, also without making a will, the person who applies to court to be appointed as your children’s guardian may not be the person you and your spouse would have chosen if you had given some thought to it.
  • If your children inherit a large amount of money at a young age, they might not possess the maturity to deal with this situation especially when they have suddenly lost someone so dear to them. By making a Will, you can defer the distribution of your estate to them until a later time or in stages and meanwhile it will be held by your executor on trust for your children.
  • If you are married with children and you intend to leave some of your estate to your parents but you die without making a Will, according to the rules of intestacy, your parents could get nothing from you.
  • If you have young children and your spouse passes away shortly after your death, also without making a Will, the person you and your spouse would have chosen if you had given some thought to it.
  • If your children inherit a large amount of money at a young age, they might not possess the maturity to deal with this situation especially when they have suddenly lost someone so dear to them until a later time or in stages and meanwhile it will be held by your executor on trust for your children.
  • If your relationship with your family members is estranged or if you pass away while making an application for divorce, then you might possibly be giving some people a surprise gift that would be an unwelcome surprise to you as well.
  • If you don’t make a Will, quarrels might occur between family members, causing public embarrassment and unhappiness within the family about who should rightfully (as opposed to legally) be entitled to what.
  • If you pass away without making a Will, your estate will be distributed according to the rules of intestacy and customary law. Persons to whom you may not intend to give anything may be entitled to a portion of your estate.
  • Furthermore, without a Will you miss the only opportunity you have to appoint a trusted person as executor who could apply to court for a Grant of probate to administer you estate. Instead your family would have to apply to court for letters of Administration which is generally a more complicated, longer and more expensive application than the application for a Grant of probate.

Can I Make an Oral Will?

Yes you can make an oral Will, also referred to as a nuncupative Will which takes effect under customary law. Generally, a nuncupative Will comprises of directives are usually enforced with theconsent of the testator’s family. However, an oral will may be subject to the whims and caprices of ill-motivated witnesses.

What Sort of Property Can I Include in My Will?

In your will, you should not spare any of your property, including personal items, real estate or amounts of money. While it is not necessary to list every item of your property, your Will should deal with all your property. The best way to do this is to use expressions like ‘’all of my property of whatever kind’’ or ‘’all my remaining property of whatever kind’’. If your will fails to deal with all your property.
There are some assets you can’t leave to another person in a Will. For example, assets from your superannuation or insurance fund (you usually nominate a beneficiary when you take out the policy). Another example of property you cannot deal with is the family house which goes to the eldest son in most communities.
You may wish to make special arrangements for a number of things, for example:

  • Payment of your executor
  • The occupation of your home
  • The release of a debt owing to you
  • A gift to charity.

You can generally write these types of things in ordinary language so that they can be understood. If you are in any doubt, or there is a large amount of property involved, you should see a lawyer.

Can I Make Arrangements Form My Children In My Will?

YES! If you are the parent of a child, you may wish to appoint someone to be the guardian of that child after your death. You can do this in your Will but not all such appointments are effective. It would serve you well to get legal advice.

What If I Get Married After Making My Will?

If you marry after you have made a Will, your marriage cancels your Will unless it was made in “contemplation” of marriage. If, when you make your Will, you are about to get married, you should include a statement that says you wrote your Will “in contemplation of marriage”, that is, when planning this marriage, and you should name the person you intend to marry. If you then marry the person, your Will is not cancelled. As there are other situations where the Will is not cancelled when you get married, if you have married after making your Will you should get advice from a lawyer to find out if the Will is valid. Alternatively, you could consider making a new Will to include the changed situation.

Do I Need A Lawyer To Prepare My Will?

You can prepare your Will yourself but you must ensure that you comply with all the statutory requirements of a valid Will. For persons of moderate means, the preparation of a Will is generally not too complicated. However, the preparation of a Will becomes more complicated as more situations are covered. We should again state that any Will more complicated than a simple Will should be given to a lawyer to write. A few examples of matters that may make a Will complicated are:

  • The estate is large.
  • A business partnership, company or family trust is involved
  • Remarriage
  • Children from more than one relationship
  • Beneficiaries/people involved who live overseas
  • Property is located overseas.
  • Gifts to Churches/Mosque and charitable organizations.

Costs

Legal fees for drawing up a Will vary between legal practitioners. The fees will however depend firstly on the experience and knowledge of the legal practitioner and secondly, on the complexity of the Will.

Where Should I Store My Will?

You will must be kept in a safe place such as with your bank, your lawyer, in the probate registry of where you reside, or with you the testator.

Can I Change or Revoke My Will?

You can change or revoke your Will at any time before death. In fact, you can change the content of your Will as often as you like, or revoke it entirely by making a codicil which is a supplementary document that is used to alter some of the provisions in an earlier Will instead of making a new Will. However, a codicil must comply with all the legal rules that apply to a Will. If the changes are substantial, it is advisable to make a new Will. People usually change their minds about certain beneficiaries. The alterations should not be made on the Will itself.

“It is probably good for your peace of mind to know how you can and should arrange your affairs before death. It will come sooner or later. The face that a Will is a ‘remembrance’ of death is no excuse for not learning a about Wills nor for not making one.”  - Dr. Kole Abayomi, SAN.

Disclaimer

While we have made every effort to provide accurate information, the law is always changing and affects each person differently. The information, contained in this article is not a substitute for specific legal advice about you personally and neither Aequitas Chambers, nor any member of Aequitas Chambers will be liable to you if you rely on this information.
AEQUITAS - Plot 38, Chief Edwin Uzor Street off Okpanam road, Asaba, CHAMBERS Delta State, Nigeria
LEGAL PRACTITIONERS & NOTARIES PUBLIC +2348033017860, +2348033047346 email: aequitaschambers@yahoo.com, ekemejero@yahoo.com
www.aequitaschambers.com

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