NATIONAL YOUTH SERVICE CORPS (NYSC)

AONE DAY

CAPACITY BUILDING WORKSHOP/TRAINING

By The CORP MEMBERS LEGAL AIDS SCHEME

Of The NATIONAL YOUTH SERVICE CORPS

(NYSC), AKWA IBOM STATE.

THEME: Strengthening The Freedom

of Testamentary Disposition

Presenter: Onyekachi Wisdom Duru Esq

onyekachiduru@gmail.com

Venue:

Federal Secretariat, Uyo, Akwa Ibom State,

Nigeria.

CONCEPTUAL CLARIFICATIONSWill

A Will is an instrument by which A person makes a disposition of his real (devices) and personal property (legacies), to take effect after his death (testamentary) and which by its own nature is ambulatory and revocable during his life time.

Codicil

A codicil is used to

amend, revive, revoke

or republish a will. It is

supplements a will or

repeals same. It must

comply with same

format for a valid will.

NATURE OF A WILL

It is a testamentary document (takes effect only

upon the death of the testator).

It is ambulatory (can be revoked during the life

time of the testator).

It may be made by the testator himself or any

legal practitioner appointed by him.

TYPES/CLASSIFICATION OF WILLS

Statutory Will:

The making of this type of will is regulated by law

Nuncupative Will:

This is a Will made orally or by the spoken word. This

type of Will applies principally to customary law.

Privileged Will:

This type of Will is made by a special class of people

who by the nature of their profession are exposed to

near death experiences. Examples of these classes of

persons include sailors, airmen, soldiers, etc.

TYPES/CLASSIFICATION OF WILLS CONTD

Holographic Will:

This is a Will made in the handwriting of the

testator.

Pre-nuptial/ Ante-nuptial Will:

As the name implies, this is a type of Will made

before or after marriage, respectively.

Conditional Will:

This a Will made subject to a condition subsequent.

IMPORTANCE OF WILL MAKING Opportunity to exclude the rules of inheritance

under customary law or Administration of Estate

Law;

Opportunity to appoint ideal person to manage

the estate;

Opportunity to give instructions regarding

burial;

Opportunity to guarantee cheaper

administration of estate;

IMPORTANCE OF WILL MAKING CONTD.

Opportunity to give gift(s) to charity,

mistresses, illegitimate children, etc.;

Opportunity to disinherit anybody you

wish to;

Opportunity to appoint guardian(s) fit for

infant dependant(s); and,

Opportunity to confer special powers on

executor(s) appointed.

PERSONS THAT CAN MAKE A WILL

A person of full age (above 18years),

whether male or female, married or

unmarried.

A person with sound mind and memory

(including sick and old persons).

Blind persons, illiterates and privileged

persons, such as seamen, soldiers and

pilots.

MODES OF EXECUTING A WILL

A Will may be executed in any of the following ways:

1 The testator may sign the Will himself in the

presence of at least two witnesses present at the

same time who must also attest to the Will; or

2 The testator may request and direct another

person to sign for him and he acknowledges the

signature in the presence of at least two witnesses

present at the same time, who must also attest to

the Will; or

MODES OF EXECUTING A WILL CONTD.

3 The testator may have a pre-signed Will at some

other time and acknowledges the signature in

the presence of at least two witnesses present at

the same time who must then attest to the Will.

TAKE NOTICE that the witnesses must sign after

the testator’s signature. Also, the witnesses need

not sign in the presence of one another, but they

must sign in the presence of the testator.

EFFECT OF BEING A WITNESS AND A BENEFICIARY IN A WILL

If a witness or his spouse is a beneficiary in a will,

they gift or legacy to such a witness or his or her

spouse will fail subject however to the following

exceptions;

1. Privileged Wills;

2. Where the marriage between the witness and the

spouse beneficiary was after the making of the

Will;

EFFECT OF BEING A WITNESS AND A BENEFICIARY IN A WILL

CONTD.3. Where the witness is merely a trustee of the gift;

4. Where the gift to the beneficiary is subsequently

confirm in a Codicil, not attested to by the

witness beneficiary;

5. Where there are two or more witnesses besides

the witness beneficiary; and,

6. Where the gift was made in settlement of debt.

TESTAMENTARY CAPACITY TO MAKE A VALID WILL

Capacity refers to the possession of sound

disposing mind and memory at the time of

giving instructions to a Solicitor regarding will

making and at the time of execution of the

will.

Physical ailment or bodily infirmity should not

be confused with sound disposing mind and

memory.

TESTAMENTARY CAPACITY TO MAKE A VALID WILL CONTD.

Requisite testamentary capacity connotes the following;

1. The ability of the testator to understand the nature of the Act of making a Will and its effect;

2. The ability of the testator to understand the extent of the property he is disposing;

3. The ability of the testator to appreciate and recollect who are the objects of his gifts (his beneficiaries) and the manner in which the property is to be shared between them.

FACTORS THAT VITIATES TESTAMENTARY CAPACITY

1.Lack of knowledge

2.Fraud

3.Mistake

4. Undue influence

5. Suspicious circumstances

6. Delusion

LIMITATIONS TO TESTAMENTARY FREEDOM

Take Notice that limitations/restriction affects the

dispositions in the Will but not the validity of the

Will. The following restriction/limitation apply to

Will making in Nigeria;

1. The testator cannot freely dispose of a property

which is subject to customary law and

disposable under customary law

LIMITATIONS TO TESTAMENTARY FREEDOM CONTD.

2. Persons subject to Islamic law can only dispose of

one-third of their estate freely, the remaining two-

third must be disposed following Islamic law.

3. A witness cannot be a beneficiary, except the case

falls under the exceptions.

4. Reasonable financial provision for dependants –

child or brother of the disease maintained by the

latter during his life time.

TYPES OF LEGACY/GIFTS2.Specific legacy: This is a gift with

full description. It is a given by the use of ‘My’.

It is subject to ademption, that is, the non existence of the gift as a result of sale, destruction, loss, compulsory acquisition, contract of sale, alteration in character, etc.

2 General Legacy: This is to be satisfied

from the general estate.

It is granted by the use of ‘a’ and is not subject to ademption.

However, this type cannot be identified, since it is a generalized rather than a particular gift.

TYPES OF LEGACY/GIFTS CONTD.

3. Demonstrative Legacy:This is gift of money to be satisfied from a particular source and is granted by the use of the word ‘from’. It is not liable to ademption.

4.Pecuniary Legacy:This is strictly a monetary gift.

5.Residuary Legacy:This is the leftover of the estate. Failure to provide for a residuary clause in a Will result in partial intestacy.

SOURCES OF RESIDUARY LEGACY

1.Property acquired by the testator after the Will.

2.Property acquired by the estate after the testators death.

3.Property not dispose or devised by the testator in the Will.

4 Gift that failed and gift that lapsed.

LAPSE OF GIFTS

This occurs when a beneficiary pre-

deceases a testator. It is subject to the

following exceptions;

a.Substitutional gifts;

b.Declaration against lapse

c.Statutory exception especially in cases

where the deceased beneficiary had a

surviving issue during the life time of the

deceased;

d. Class gifts; and,

e. A gift made in discharge of moral

obligation such as fulfillment of an

obligation to pay debt.

FAILURE OF GIFTS

A gift may fail as a result of;1.Ademption (that is the non-existence

of the gift/legacy as a result of sale, destruction, alteration, etc.);

2.Causing of the death of the testator by the beneficiary;

3.Giving of a gift to a witness outside the exceptions;

4.Abetment (disposition in settlement of liability of the estate)

5.Public policy6.Non fulfillment of conditions attach

CONCLUSION

A Will is a very important document

of title.

It is very important for searches to

be conducted in the Probate

Registry before any Conveyancing

Transaction involving Wills.

Confidentiality is a concern in Will

making.

PLEASE MAKE A WILL

THANK YOU FOR YOUR ATTENTION