It is very disconcerting that a large percentage of individuals do not have a Will despite the apparent significance of creating one. The palpable apathy of individuals regarding the creation of a Will is a global phenomenon which is not peculiar to the Nigerian society alone. A staggering number of individuals pass away on a daily basis without any structured preparation pertaining to the succession of their wealth and assets. This lack of preparation frequently leads to multigenerational anarchy and chaos within the deceased’s family. The reasons why people are not motivated to engage in estate planning during their life time is varied. For some people, it is misapprehension that their asset and wealth will automatically pass on to their loved ones upon their deaths while for some people, the mere thought of death is morbid and unthinkable and will rather avoid any conversation or preparation towards it. Also, majority of people are also under the illusion that Will making is only an issue to be considered by the elderly.
A Will is a legal document which embodies the wishes of the maker on the disposition, administration and management of his estate upon his death. A testator is the maker of a Will. It is imperative to state that creating a Will is not a death sentence; it does not translate to the immediate death of the creator. Rather, it is a document which caters to the wishes of the maker to enable him tidy his affairs when he is no more. The advantage of preparing a Will in anticipation of one’s death is enormous and cannot be over emphasised.
The creation of a Will enables the testator to distribute his property and determine the quantum share directly to the actual people he desires. It displaces devolution of asset by customary law. Every Nigerian citizen belongs to one tribe or the other. These tribes all have their native law and custom which governs the distribution of a deceased’s estate. Under the igbo culture, primogeniture is the cardinal principle of inheritance. Primogeniture is a system where the eldest male child of the deceased inherits the property of the deceased. The eldest son reserves the discretion on how to distribute the properties for the benefit of his younger male siblings. The female children are totally excluded in the inheritance of the estate. Likewise, if the deceased person is male and was married, his widow is totally excluded from the inheritance of the estate of her husband. In a situation where the deceased has no male children, the estate will devolve on his male brothers. The inheritance law of the Yoruba people devolves through either the ori ojori or idi igi system. The ori ojori is the distribution according to the number of children of the deceased while idi igi is the distribution in accordance with the number of wives the deceased had during his lifetime. In the Northern part of the country, the Islamic law doctrine on inheritance is the common applicable system. Regardless of the fact that these systems of inheritance are in place to ensure a smooth transmission of a deceased person’s estate under the native law and customs of different tribes, they are often a recipe for disaster, chaos, anarchy and dispute amongst the family members. Most of the family members take advantage of the situation and tamper with the estate of the deceased to the detriment of the immediate family. Most of the time there are no consequence for the abuse of such powers.
Another benefit derived from creating a Will is that it displaces the application of the administration of estate law. The Administration of Estate Law is the law applicable to the estate of a deceased person who contracted a valid marriage under the Marriage Act. Under this law, the surviving spouse takes a life interest in all the personal estate of the deceased while the surviving spouse and the children of the deceased share the remainder of the estate in the prescribed proportion as stated by the law. This law is generally fair but issues may arise where the testator was in the process of divorce from his spouse but died during the divorce proceeding. The resultant effect is that the spouse is the legally recognised spouse entitled to the estate of the deceased.
Creation of a Will also ensures that the testator has the opportunity to personally appoint executors of his choice. Executors of an estate are the personal representatives of the testator who are appointed by the Will to execute the wishes of the testator to the letter. A Will ensures that the Executors are persons who the testator can assert their competence. This in effect gives a measure of confidence and satisfaction to the testator that his estate is in competent hands.
A testator who has children who are minors and feels anxious regarding their welfare will have the opportunity of appointing guardians to exercise parental supervision on them. This situation may arise where the testator’s spouse predeceased him, is mentally challenged, has remarried or incapable of looking after the children.
Further, it is more cost effective and less time consuming to apply for the grant of probate than to apply for letters of administration. When a person dies testate, the executors are required to apply to the probate court for the grant of probate of the Will. The grant of probate is the legal process where a Will is reviewed to ensure that it is valid and authentic. On the hand, where a person dies intestate, the proposed administrators of the estate must apply to the court for an order to be appointed as the Administrators of the estate. This process is more expensive and time consuming because the court has to ascertain the integrity and competence of the proposed administrators to ensure that they don’t dissipate the estate. It is instructive to note that it is a criminal offence to dispose or administer the estate of a deceased person whether he died testate or intestate without the grant of a probate or the application of a letters of administration respectively.
A Will is only effective upon the death of the testator and until then, it can be altered or revoked. A valid Will under the law must adhere strictly to some fundamental requirements of the law, failure to comply will render it an exercise in futility. It is important that a testator must ensure that he hires the best and most competent legal practitioner to execute this task on his behalf. A poorly drafted Will fraught with irregularities, if contested, will be invalidated by the court thereby bringing all the efforts of the testator to a naught.
Written by Olamide Onifade, Senior Partner, Olamide Onifade & Associates,
149, Ogudu Road, Ogudu.
Tel: 09093335636, Email:Barristerolamideonifade@gmail.com