CHALLENGING THE VALIDITY OF A WILL IN NIGERIA

One who wishes to contest a will can do so by questioning either the form of the will or the substance of same.

When the form of the will is in question, issues like due execution, attestation and date are usually raised and when the substance of the will is in contention issues such as testamentary capacity, undue influence and suspicious circumstance and limitation by law are raised. 

In challenging the provisions contained in a will, family members and dependents may apply to court when adequate financial provisions are not made for them in their bread winners will. Section 2 of the Wills Law of Lagos State makes provision for family and dependents that are not provided for in a Will.

(1) Notwithstanding the provisions of section 1 of this Law where a person dies and is survived by any of the following persons—

a) the wife or wives or husband of the deceased; and

b) a child or children of the deceased— 

that person or those persons may apply to the court for an order on the ground that disposition of the deceased estate effected by his will is not such to make reasonable financial provision for the applicant.

(2) In this section “reasonable financial provision” in the case of an application made by virtue of subsection (1) (a) of this section by the husband or wife or wives of the deceased (except where the marriage with the deceased was subject of a decree of judicial separation in accordance with any Customary Law and at the date of the death the decree was in force and the separation was continuing, means such financial provision as it would be reasonable in all the circumstances of the case for husband or wife or wives to receive, whether or not that provision is required for his or her maintenance.

(3) An application under this section shall be exercisable only within a period of six months from the grant of the probate.

Challenging the validity of a Will based on Defective Form

 In the case of Ize-Iyamu .v. Alonge (2007) All FWLR (Pt. 371) 1570 at 1587, the court held that for a Will to be valid as to form –

1. It must be in writing;
2. It must be signed by the testator or his representative, and dated;
3. The signature of the testator must be witnessed by at least two witnesses;
4. The witnesses must attest and subscribe the Will in the presence of the testator; and
5. The signature of the testator shall be at the foot or end of the Will.

It is no longer necessary for the signature to be the foot or end of the Will. It can be anywhere, as long as there is a signature and it is apparent from the face of the Will that the testator intended by his signature to give effect to the will.

Section 9 of the Wills Act, and Section 4 of the Wills Law of Lagos State require that every Will shall be in writing; it therefore invalidates a nuncupative (oral) Will. However, under customary law, an oral will is valid. See the case of Bankole .v. Tapo (1961) 1 All NLR 140, where an oral disposition of land by a testator was upheld to be sufficient to transfer the property to the beneficiary.

The essence of the requirement of a Will to be in writing is to prevent fraud, thus for an oral Will to be valid under the customary law, it must satisfy the following conditions – 

1. It must be made voluntarily;
2. The testator must be of a sound mind
3. It must name the beneficiary or beneficiaries
4. It must be in the presence of witnesses
5. It must identify the property.

Execution 

A will is required to be signed by the testator. Without the signature or mark of the testator, no written will can be valid. When a blind person is making a Will, it must be shown that the Will was read over to him and he perfectly appeared to understand the contents before affixing his hands to it.

The Rules of Court of the Federal capital Territory, Abuja provide that where the testator is blind or illiterate, a court shall not grant administration with the Will annexed unless the court is satisfied by proof or by what appears on the face of the Will that the Will was read over to the deceased before its execution or that he had at that time knowledge of its contents. See Henry Charles Christopher v. Samuel Insitful Tawiah 13 WACA 347.

If there is no indication that a will was read to an illiterate testator in a language understood by him before execution such a will would not be granted probate by the court.

Attestation

There is also the requirement of attestation i.e. there must be witnesses to a Will. This is largely to prevent fraud.

Cases on challenges on validity of a Will based on its substance

 Insane Delusion

BANKS .v. GOODFELLOW [QUEEN'S BENCH DIVISION] [L.R.] 5 Q.B. 549 1870

At a trial as to the validity of a will, in favour of the testator's niece, it appeared that the testator made the will in 1863; he had been confined as a lunatic, for some months in 1841; and he remained subject to delusions that he was personally molested by a man who had long been dead, and that he was pursued by evil spirits whom he believed to be visibly present; and these delusions were shown to have existed between 1841 and the date of the will, and also between that date and his death in 1865. As to the testator's general capacity to manage his affairs, the evidence was contradictory; but it was admitted that at times he was incapable of making a will. 

The jury were directed to consider whether, at the time of making the will, the testator was capable of having such knowledge and appreciation of facts, and was so far master of his intentions, free from delusions, as would enable him to make a will of his own in the disposition of his property, and act upon it; The Jury were further directed that the mere fact of the testator's ability to recollect things, or to converse rationally on some subjects, or to manage some business, would not be sufficient to show he was sane; while, on the other hand, slowness, feebleness, and eccentricities would not be sufficient to show he was insane; and that the whole burden of showing that the testator was fit at the time was on the party claiming under the will:- 

It was held that for the purpose of determining the validity of the Will, it was immaterial whether the delusions remained latent or not at the time of the making of the Will, if the testator was otherwise competent to make a will, as neither of the delusions the testator experienced had, or could have had, any influence upon him in disposing of his property. The following tests were also put forward in determining the mental capacity of a testator at the time of making the Will:

1. The testator must understand the nature of the act that he is making his will and its effect.
2. He must understand and recollect the extent of the property of which he is disposing.
3. The manner in which the property is distributed must be rational that no disorder of the mind has poisoned his affection or perverted the exercise of his will.

Undue Influence

JOHNSON v. MAJA 13 WACA 290

The executors applied for a grant of probate; but the testator’s widow lodged a caveat against the grant. The executors sued the testator’s widow and asked the court to declare in solemn form for the Will and codicil, while the widow challenged the Will upon three (3) grounds namely –

1. That it had not been executed as required by law;
2. That the testator was not of sound mind, memory and understanding at the time of the execution; and
3. That the execution was obtained by the undue influence of a woman named Agnes Jokotade who was the mistress of the testator.

At the trial, the judge found that each of the allegations had been proved, and he pronounced against the Will and declared that, so far as the Will was concerned, the testator had died intestate.

On appeal, argument was addressed to the West African Court of Appeal by both counsel upon the question as to where the onus lies in cases of this kind where one party propounds a Will, and the other party challenges not only its execution, but also the mental capacity and free will of the testator.

Lewey J. A. Observed as follows –

“A testator has every right to change his mind at any time before his death provided it is conclusively proved to the satisfaction of the Court that at the time of his executing the Will, he was a free agent and under no influence and that the Will was properly executed.”

On undue influence by Agnes Jokotade, the Court held that it is not disputed that when the doctors, in the early part of the year, ordered the testator to rest, he retired to a farm in the country where for some weeks he was away from his wife and was visited by Agnes Jokotade.

Some evidence was also given as to the aggressive and over confident attitude of Agnes Jokotade about this time, and the testator’s bank pass-book was produced showing a number of payments at various dates to Agnes Jokotade, the amounts of which were certainly considerably larger during the period in question, however undue influence was not proved for it must be remembered that something far stronger than reprehensible, or even unnatural, conduct in a husband or father is required in these cases.

The immoral conduct of the testator, his preference for his provision for Agnes Jokotade are far from being sufficient to show that the execution of his Will was obtained by Agnes Jokotade’s undue influence. There is indeed, nothing that can be found to connect Agnes Jokotade directly with it. And there is no evidence that Agnes Jokotade even “persuaded” the testator to make his 1943 Will, much less that it was by her fraud or her coercion that it was executed – even taking account of the varied forms which coercion may take.

 The court further held that the onus of proof shifts. In the first stage, where there is a dispute as to a Will, those who propound it must clearly show by evidence that prima facie all is in order: Thereafter, the burden is cast upon those who attack the Will and they are required to substantiate by evidence the allegations they have made. The decision must ultimately depend upon a consideration (having regard to the shifting burden of proof), of the value of all the evidence given by both sides.

The plaintiffs sufficiently discharged the burden of establishing a prima facie case and the defendant failed to prove affirmatively the allegations made. The court held that the Will stands and is effective.

Testamentary Capacity, Suspicious circumstances

OKELOLA V BOYLE 1998] 2 NWLR (PT. 539) 533. SC

By an indenture dated 2nd June 1986 and registered as No. 43 at page 174 in Volume 29 of Register of Deeds kept at the Lagos Land Registry, one Theophilus Otemuyiwa became owner of the land and property situate and known as 163 Igbosere Road Lagos. The said Theophilus Otemuyiwa died intestate some years ago leaving behind three children surviving him, (Adeniyi Otemuyiwa, Gabriel Theophilus Abiodun Otemuyiwa and Adekunle Otemuyiwa). The three sons, on the death of their father, inherited the said property which became their family property under Yoruba customary law. Adeniyi died intestate in Lagos on 10th January 1975 without children. Adekunle also died intestate on 9th February 1976 without children. 

On 28th December, 1972 during the lifetime of the three brothers, Abiodun had made a Will devising his share in the property at 163 Igbosere Road Lagos to one Madam Olufunso Okelola. On 9th October 1975, Abiodun suffered a stroke and was admitted into hospital; he was paralyzed and he subsequently died in June 1977. He too, like his brothers before him, died without children. After the death of Abiodun, the probate registrar invited Madam Olufunso Okelola to the reading of a Will purportedly made by Abiodun on 24th February 1976 in which he gave all his property to one A. Idowu George. Madam Olufunso Okelola promptly filed a caveat to the grant of probate and commenced legal proceedings. The Supreme Court held:

"In sum I have found on the evidence that the fact that the Will Ex. Dl was not translated to the testator who was an illiterate person, it showed that he could not have known its contents. I have found from the evidence too that the fact that a non-existent person whose name resembled that of the plaintiff and who was said to be residing in the testator's house was made an executor showed that testator could not have known about that provision. Even if it could be said that the testator gave that instruction (a Fact which I doubt) it would also show conclusively that the testator did not know what he was doing while executing the Will Ex. Dl." I find that the defendant has not discharged the onus placed on her by the law in respect of the Will Ex. Dl and I find that that Will is not entitled to probate."

In conclusion, in every case the onus lies on the propounders of a will to satisfy the court that the instrument is ‘the last will of a free and capable testator’. The onus does not necessarily remain fixed; it shifts. Where there is a dispute as to a will, those who propound it must clearly show by evidence that, prima facie, all is in order; that is to say, that there has been due execution, and that the testator had the necessary mental capacity, and was a free agent. Once they have satisfied the court, prima facie, as to these matters, the burden is then cast upon those who attack the will, and they are required to substantiate by evidence the allegations they have made as to lack of capacity, undue influence, and so forth.