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22 Jan

PL-PRACTICE WEEK 16 (WILLS AND CODICILS 2)

WEEK 16 – WILLS & CODICILS 2

TYPES OF GIFTS (LEGACIES): note that devise means to give realty while bequeath means to give personal property.

TYPES OF LEGACIES.

Specific Legacy: a described and distinguishable part of testator’s estate. E.g. my Land Cruiser Model 2010 with Registration Number EN22I:LSD or my house at Plot A22, Kingsway Road… to my son Tayo…”. Would not abate where funds insufficient for other gifts but may fail by ademption (where specific gift no longer exists) except there is a substituted or substituted gift clause “or its money’s worth in lieu”.

General Legacy: not specifically identified/distinguished. “I give a 6 bedroom/car/golden working stick/etc… to my daughter”. GLs are not liable to ademption but may abate where estate is insufficient or value of gift cannot be ascertained.

Demonstrative Legacy: out of a specific fund or pool of property. Does not fail by ademption. E.g. “One million Naira from my current account with First Bank (Nigeria) Plc, Akoka, Yaba, Lagos to Ade Taye”

Pecuniary legacy is gift of cash (may be specific, demonstrative or specific). Annuity where it is to be paid at intervals.

Residuary Legacy: gift of remainder of estate after distribution, debts and liabilities have been cleared. May include gifts that failed/lapsed[1] or properties acquired after making the will. Where no residuary clause, the remaining undistributed parts of the estate is governed by the rules of intestacy. Partial Intestacy

FAILURE OF GIFTS

Gift may fail in the following situations:

  • Ademption: where gift ceases to exist at time of testator’s death (e.g. destroyed, sold, bankruptcy, etc. It can be prevented by adding substitutional gift. The Court have held that the main character of the gift must have been extinguished… the Natural Character must have been extinguished or altered.
  • Lapse: where beneficiary predeceases testator. Can be saved by statutory provisions (e.g. where beneficiary is survived by an issue/child (Section 24 WLL, 22 WA)) Or a substitutional gift is made OR the gift was made to a class (the surviving one takes) OR the gift was made to discharge debt. Note Section 144(2) EA on presumption as to order of death.
  • Public Policy/Illegality.
  • Where beneficiary (or his spouse) witnesses the will-Section 8 Lagos.
  • Where the beneficiary disclaims and refuses to take the gift.
  • Gift obtained by fraud, duress, etc.
  • Gift is contingent on a condition which is not satisfied.
  • For uncertainty.
  • Abatement or Insolvency.

REVOCATION OF A WILL

Can be done during the lifetime of the testator. It can be revoked (3 voluntarily or 1 involuntarily) in 4 ways.

  • By Subsequent Statutory Marriage of Testator (involuntary revocation)-Section 18WA, 11 WA. Except the will is made in exercise of power of appointment or expressed to be made in contemplation of a proposed marriage to a named person OR the testator is remarrying the same person under statute. See Re Langston, Jadesimi v Okotie-Eboh.
  • Validly Making (and executing) another Will/Codicil which unequivocally expresses testators intention to revoke the former. May be by implication if the Will covers the same grounds as earlier one or is materially inconsistent with the former-Henfrey v Henfrey.
  • Writing (signed by the testator and attested like a will in accordance with Section 9 Wills Act) with a declaration of intention to revoke the Will.
  • Act of Sufficient Physical Destruction[2] (By him or another at his request and in his presence-Re Dadds) of the Will with contemporaneous and complete intention to revoke the will. Cheese v Lovejoy (squeezed and drew line with “revoked” at the back held insufficient). Where he was drunk, insane or destruction was accidental, there would be no revocation. Also, where the intention was grounded on mistake (of law or fact) the will is not revoked.

REVIVAL AND REPUBLICATION OF WILLS.

Revival brings a revoked will back to life.

Republication confirm/revalidates an unrevoked will. Can be done provided will has not been destroyed-Section 15 WLL. May be by proper re-execution or properly executing a codicil with intention to revive the revoked will. In the Goods of Steele. Date of republication is the effective date.

ETHICAL ISSUES ON LEGACIES IN A WILL AND REVOCATION OF A WILL

JADESINMI V OKOTIE-EBOH [1996] 2 NWLR (PT.429) 128

 

[1] Lapse is if the beneficiary pre-deceases the testator. The gift would fail except it is salvaged

[2] Burning, tearing, etc.

Isochukwu

Quite eccentric really

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