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22 Jan

PL-PRACTICE WEEK 15 (WILLS AND CODICILS 1)

WEEK 15 — WILLS & CODICIL 1

CONTENTS

MEANING AND CHARACTERISTICS OF A WILL: A will is a testamentary[1] (but ambulatory[2]) document voluntarily made by a person (called testator) with sound disposing mind by which he disposes of his property (to beneficiaries) in accordance with the Wills Legislation[3] and gives other directives (like burial wishes). Making a will means he died testate… no Will means he died intestate and his property would be managed by executors or administrators respectively… both called PR.

A will takes effect when it is admitted into probate.

TYPES OF WILLS

Nuncupative/Customary Will: is oral directives of testator according to customary law.

Mutual/Reciprocal Will: made by two or more persons and revoked by their concurrence.

Privileged Will: made by specified categories of persons (Soldier, Mariner, Crew of Commercial Airlines) in active/actual service. Need not strictly comply with statutory formalities.

Holographic Will: one written in the hands of the testator usually not witnessed. Recognised in some jurisdictions.

Formal/Statutory Will: made in accordance with the prescriptions of statute. Formal wills was first introduced by Wills Act 1837 hitherto customary and nuncupative wills regulated succession of estate of deceased-Idehen v Idehen.

RATIONALE / ADVANTAGES FOR MAKING WILL:

  1. To avoid the automatic application of rules of intestacy (especially customary and statutory rules) which may gift property contrary to the testator’s wish-Idehen v Idehen.
  2. A testator can appoint personal representatives and guardians under his will and confer wider powers on them. This saves time and money as executors appointed under a will start to act immediately but administrators under intestacy would have to apply and wait for letters of administration to be issued before acting. A chain of execution is also created by appointing executor.
  3. Grants testator peace of mind and utmost expression of testamentary freedom, wishes and desires.

DISADVANTAGES OF MAKING A WILL

  1. Non-compliance with strict requirements of statute or a mistake may vitiate the will and litigation ensues.
  2. Additional cost and expenses of engaging legal practitioner and storing.

Note Sources of law earlier and add High Court Civil Procedure Rules, Case Law.

CONDITIONS FOR VALIDITY:

First we have DUE EXECUTION: Writing, Signature and Attestation: Section 9 of the Wills Act Provides:

“No will shall be valid unless it shall be in writing…, it shall be signed[4] at the foot or end thereof[5] by the testator, (or by some other person in his presence and by his direction); in the presence of 2 or more witnesses[6] present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator[7]…”. A similar provision can be found in Section 4 WLLagos. Ize-Iyamu v Alonge.

Where testator is illiterate or blind, a jurat should be inserted indicating that the contents of the Will was read over to him and he appeared to perfectly understand it and then he affixes his hand to it.

Note the position for child and visually impaired attesting.

signed by the testator in our presence and attested by us in his presence and the presence of each other”.

Next: TESTAMENTARY CAPACITY (AGE, MENTAL CAPACITY AND INTENTION).

Testator must be up to 21 years-s 7 WA (18 years for S 3 WLL and some other states). Testators entitled to make privileged wills (discussed earlier) need not be of age.

The testator must have intended to make a will and approve of its content.

The testator must have sound disposing mind and memory at the time of giving instructions and at the time of executing the will-Banks v Goodfellow, Parker v Felgate. Battan Singh v Armichand. He should understand the nature of his act, extent of property disposed and object.

Johnson v Maja, Adebajo v Adebajo, Nelson v Akofiranmi, Okelola v Boyle.

Ill health would not vitiate except it is such that affects mental capacity/cognition.

Where delusion is alleged, may not vitiate unless it is such that can taint his mental capacity-Banks v Goodfellow[8]… more so, the court may apply blue pencil rule.

Visually impaired and illiterates can make will (insitful v Christian).

  • Next: VOLUNTARINESS AND FREE-WILL: there should be no force, coercion, undue influence, overbearing or importuning on the testator-Hall v Hall (he disposed his will for the sake of peace and quiet). In Moneypenny v Brown, testator’s wife was the one directing his hand. Myn v Robinson, where the husband was made sole beneficiary and executor. Although inclination and bias towards a person (as a result of immoral consideration) would not vitiate-Johnson v Maja.

The blue pencil rule shall be applied to remove the influenced part of the will.

PROOF OF VALIDITY OF A WILL:

It is presumed that a will which appears ex facie regular/rational on the face is good[9] but where suspicion arises, the propounder would have to prove[10]-(.Amu v Amu) he may do so by medical evidence (Adebajo v Adebajo, Ikelola v Boyle) corroboration of attesting witness (in the Goods of Grandon) general habits or conduct before making the will (Maja v Johnson, Adebajo v Adebajo). In all these, note that proof of validity is by the use of Affidavit.

A Will may be proved in Common (non-contentious) OR solemn form (contentious). Note the above when discussing any.

EXPLAIN EFFECT OF BEING A WITNESS IN A WILL

Anyone except the beneficiary and the beneficiary’s spouse[11] may witness a will, otherwise he or she shall lose the benefit Section 15 Wills Act, Ross v Caunters. Exceptions: the gift in the will settles a debt to the beneficiary; more than two witnesses exist; service wills may be attested by beneficiaries; the beneficiary signed as trustee; where he does not sign as a witness;  the gift is affirmed in a codicil the beneficiary did not attest; and the beneficiary signed merely to acknowledge abatement of his legacy.

IDENTIFY ETHICAL ISSUES ARISING FROM PROOF OF A WILL

JOHNSON V MAJA 13 WACA 290; ADEBAJO V ADEBAJO (1971) ALL NLR 599; AND NELSON V AKOFIRANMI (1959) LLR 143 JOHNSON V MAJA 13 WACA 290; ADEBAJO V ADEBAJO (1971) ALL NLR 599; AND NELSON V AKOFIRANMI (1959) LLR 143.

[1] Takes effect after the death of the maker.

[2] Can be amended during testator’s lifetime.

[3] For example Section 9 WA, 6 WLL and 6 WLWN

[4] Signature may be in various ways provided it represents his insignia-Goodman v Ebans.

[5] Dispositions below/after the signature is invalid.

[6] One witness is okay for privileged will.

[7]  They need not know the content-Nelson v Akofiranmi.

[8] He was feeling pursued and molested by a dead man and evil spirits but he still collected rents, requested for a solicitor, gave instructions for his will and executed same.

[9] Omnia Prae Sumuntur Rite Esse Aeta. Everything is okay which looks okay-Rollestone v Sinclair. 168 EA.

[10] A heavier burden if he/she is to benefit from the Will-Wintle v Nye this also precludes a solicitor from benefiting under a will.

[11] Except the beneficiary married the attester after executing the will

Isochukwu

Quite eccentric really

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