WHY YOU SHOULD MAKE A WILL TODAY

 WHY YOU SHOULD MAKE A WILL TODAY

The Oxford Dictionary of Law, 5th Edition (2003) defines a Will as “A document by which a person (called the testator) appoints executors to administer his estate after his death, and directs the manner in which it is to be distributed to the beneficiaries he specifies”.

In essence, a will ensures that properties (real or personal) of a deceased person are passed down to others in a manner the deceased wishes and so specifies. Instructions that do not entail the transfer of property, for example, how a person’s establishment should be managed after his death, can also be contained in a will.

The maker of a will is called the testator (male) or testatrix (female), while recipients of the properties under a will are called beneficiaries. A person entrusted by the testator to carry out the contents of the will is called an executor (male) or executrix (female) and a will can sometimes be referred to as a testament. The property of the testator is called estate and the section of the court that deals with Wills and Administration of Estates is called Probate.

A will is not final and can be destroyed by the maker if he wishes. It can also be amended or changed by the maker during his lifetime by the use of a codicil or a duly executed alteration. A will comes into force at the death of the maker, but where a person dies without making a will, he is said to have died intestate.

Wills are usually written (formal wills), but can also be oral. Thus, we have formal wills and customary or nuncupative wills. A formal will must be written in the manner required by the relevant Wills Laws of the jurisdiction, and must be signed by the testator in the presence of at least two witnesses.

On the other hand, Customary or nuncupative wills are usually oral, and are affected by the customary laws of the maker. Oral directives given in customary wills are in no particular manner. However, the presence of witnesses is required to prove validity of a customary will.

In Nigeria, the law regulating wills is the Wills Act of 1837, a Statute of General Application which has now been adapted into the Wills Laws of the various states.

WHO CAN MAKE A WILL?

Generally, there are conditions that affect the capacity of a person to make a will and they are as follows:

1.    Legal Age: For a person to be capable of making a will he must have attained the legal age. Thus, a testator must be of legal age at the time he made his will. Legal age for making wills differ from state to state and are as provided for in the various Wills Laws.

2.     Mental Capacity: A person can make a will only if he/she is mentally capable. Therefore, a testator must be mentally capable enough to make a will. Factors that determine mental capacity were summarised in the case of Banks and Goodfellow (1870) LR5 QB 544, where the Court per Cockburn C.J. held as follows:

“It is essential that a Testator shall understand the nature of the act and its effect, shall understand the extent of the property of which he is disposing, shall be able to comprehend and appreciate the claims to which he ought to give effect. No disorder of mind shall affect his affections, pervert his sense of right, or prevent the exercise of his natural faculties. That no insane delusions shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

3.    The will must be in writing. It can be written in any language and can also be written in any form, whether typed or handwritten. Therefore, the form of writing is not definite. 

4.    The will must be signed by the testator in the presence of at least two witnesses.

Will making in Nigeria is not so rampant and in some cases, it’s seen as a rich man’s activity that will only lead to quarrels and endless litigation on the death of the maker. There is generally a negative disposition toward wills’ and will making, mostly premised on superstition. The fear of death is so strong that some people believe that makers of wills are in their ‘last bus stop’.

Notwithstanding these problems, there are very good reasons why one should make a will. They include:

1.    YOU GET TO DECIDE HOW YOUR ESTATE WILL BE DISTRIBUTED: There is no guarantee that your wishes will be carried out unless you put it down in a legally binding document. Thus, making a will ensures that the proceeds of your life’s work goes to the people you want them to go to. A will comes into effect on the death of the testator, and once it passes all the tests, it gets the full backing of the law and can be enforced.

2.    YOU CAN ALSO DECIDE WHO EXECUTES YOUR WILL: A will creates executors who are tasked with carrying out the contents of the will. Their authority is derived from the will itself and they can bring action on behalf of the testator’s estate. The executors after distributing the properties and carrying out the wishes of the testator effectively winds up the estates. Making a will completely gives the testator the opportunity to choose a trusted person as executor.

3.    YOU CAN DECIDE WHO TAKES CARE OF YOUR MINOR CHILDREN AND OTHER DEPENDANTS: The care of children, invalids, and other dependants like elderly people can be provided for in wills. The testator is rest assured that his dependants and loved ones will be in good hands after his demise.

4.    THE RUNNING OF THE AFFAIRS OF A BUSINESS CAN ALSO BE PROVIDED FOR IN A WILL: A testator can make provisions and specify how he would want his business to be run after his demise. He can make appointments and nominations to positions,ss and also make provisions for where his company funds will be channelled.

5.    GIFTS AND DONATIONS CAN BE MADE IN A WILL: You can decide to include gifts and donations to people and other charitable causes in your will.

6.    WILLS REDUCE THE LENGTH OF TIME SPENT IN PROBATE: When a will is established to be true, the Probate department will empower the executors to execute the will rather than handling it themselves, thereby reducing the amount time wasted through bureaucracy.

In submission, even though there are some cultural and superstitious hindrances to the popularity of wills in Nigeria and Africa, they are widely outweighed and outnumbered by its benefits.