PL-PRACTICE WEEK 17 (WILLS AND CODICILS 3)
WEEK 17 — WILLS & CODICILS 3
PARTICULARS OF INFORMATION REQUIRED TO PREPARE A WILL:
It is advisable for a solicitor LP to draft because he is versed in the law, skilled in the drafting, useful in being a witness in dispute[1] and can more reasonably keep the will in his custody and reproduce in the event of testator’s death.
The solicitor should receive instructions directly from testator (or his proxy provided it is read and explained to the testator) understand instructions and competently represent them in the will and ensure formalities are complied with else the may be set aside and negligence may be construed. Solicitor should elicit:
- Details (names, address, etc.) of the testator, executors, guardian, witnesses and so on.
- Details of beneficiaries, dependants/relatives (where included), wives, children, .
- Particulars of property(ies) and how they are to be shared.
- Origin, ethnicity and religion of the testator to determine whether he is subject to restrictions arising therefrom.
- Provisions on ademption, lapse, substitutional gifts and other instances where gift fails.
- Instructions on how the residue is to be distributed.
- Debts and liabilities.
- Whether there has been a previous will or codicil and whether the former is sought to be revoked.
- Directives on funeral, custody of Will.
- Remuneration of executors.
After receiving instructions, he is to plan->design->outline->compose->scrutinise->edit and cross check the will -> Forward to client for approval -> Arrange for and obtain due execution of the Will -> Create a file for the Will and accompanying correspondences and drafts -> Give a copy to Client -> Arrange for safe custody of the original copy of the Will (the original and any counterpart may be kept in/with the probate registry[2] (within jurisdiction) or with testator’s solicitor, bankers to the testator or the testator may keep it himself).
To reduce the stress of proving, solicitor can ensure that the instructions should be written and signed by the client (as was done in Banks v Goodfellow), Medical practitioner can be called to examine the testator and attest to his health and mental capacity to make the will. The test result can be called in evidence.
PARTS (CONTENTS) OF A WILL
Commencement (introduces the maker and will, Date (shows when the will was made), Revocation Clause (where he wants to revoke former testamentary documents) Appointment Clause (for appointing executors and trustees), Charging Clause (permitting PRs to charge), Gifts (distribution/bequeathing area), Residuary Clause (dictates how the remainder of the estate shall be administered), Testimonium (links the testator with the Will), execution and attestation clause (shows due compliance and prevents fraud). Illiterate/Blind/Deaf/Dumb Jurat.
LIMITATIONS ON THE TESTATOR:
The general rule is that testator has testamentary freedom. However, there are certain recognised restrictions.
- Section 2 WLL a person survived by wife(ives) and Child(ren) or dependants[3] should make reasonable financial provision for them. Else, they can apply to the court (within 6 months from the grant of probate) for such provision. Re Coventry, Re Dennis.
- Customary and Islamic Law Restriction: the wills laws usually contain a proviso that the provision of the law shall not apply to any property which the testator had no power to dispose of by will or otherwise under customary law to which he was subject-See for example: Section 1 WLL, 4 WLKaduna, 2 WLOyo. Idehen v Idehen.
In Lawal Osula v Lawal Osula, court held that gift of igiogbe to wife was invalid as under Bini customary law, the Igiogbe is only for the eldest surviving son of the deceased. Although the court would derogate from upholding repugnant and discriminatory customary laws in the interest of equality and justice-Asika v Atuanya (where court held that custom that discriminated against female contrary to Section 42 of the 1999 Constitution and was invalid) Mojekwu v Mojekwu, Mojekwu v Iwuchukwu, Ukeje v Ukeje.
- Islamic Law Restriction: In Adesubokun v Yunusa, Court of Appeal held that testator who before his death was subject to Islamic law could not dispose more than one third of his property to persons who are not his heirs contrary to Islamic law. Though reversed on appeal. But subsequently reinforced by enactment of Section 2 WLKadna, 3 WLO, In Ajibaiye v Ajibaiye; where testator (in gifting the bulk of his estate to his wife) stated; “notwithstanding the fact that I am a Muslim”… Court of Appeal still upheld that testator could not contravene the 1/3rd Although this provision is not contained in some state laws e.g. Abia and Lagos.
CODICIL
Are supplemental to an existing Will and can be used to edit, correct, amend, alter, validate, republish, revive or revoke a will or what is contained therein. See Order 49 Rule 27 HC FCT CPR 2004.
Codicils are subject to the same principles of capacity (corpus mentis—sound mind) and validity of a will[4]. The Codicil should state its number (e.g. first, second, etc). To be valid, the codicil must reference the will and what it seeks to do to the will.
IDENTIFY ETHICAL ISSUES ARISING: Competence (Rule 16 & 14), Confidentiality and Privileged Information (17 & 23), Conflict with personal interest (R 17), Section 9 LPA can ground liability for negligence.
IDEHEN V IDENHEN (1991) 6 NWLR (PT.98) 382; ADESUBOKAN V YUNUSA (1971) 1 ALL NLR 225; AJIBAYE V AJIBAYE (2007) ALL FWLR (PT.3 59) 1321.
[1] Solicitor’s evidence in Banks v Goodfellow was useful to the court. Singh v Armichand, Adebajo v Adebajo. On receiving instructions and dispositions/insanity or lucid intervals of testator.
[2] As it is in safe custody… sealed under his own seal and the seal of the court-Order 55 HCLSCPR. The will shall not be delivered out without the direction in writing of the Court where the Will was filed-Or 49 Rule 18(1) FCTHCCPR 2004. This aids in proof, facilitates grant of probate as time and energy is saved as will is filed with them.
[3] Kaduna, Oyo and Abia Laws add “parents, brothers and sisters”. Together with the provisio that he was maintaining them before his death. 4 Abia, 4 Oyo, 27 Kaduna Wills Law.
[4] A codicil is optional.
