i

A CRITICAL APPRAISAL OF ESSENTIAL AND FORMAL

REQUIREMENT OF A VALID WILL UNDER THE KADUNA

STATE WILL LAW 1990

BY

SULAYMON TADESE ALAMOL-YEQEEN

U08SH1058

BEING THE LONG ESSAY SUBMITTED TO THE FACULTY

OF LAW, AHMADU BELLO UNIVERSITY, ZARIA, IN

PARTIAL FULFILLMENT FOR THE REQUIREMENT OF

BACHELOR IN LAWS (LL.B.) DEGREE (HONS)

MAY, 2013

ii

COPYRIGHT STATEMENT

Sulaymn Tadese Alamol-Yeqeen

All rights reserved no part of this essay may be reproduced, stored in a retrieval

system or transmitted in any form, or by any means except with express permission

of the author.

iii

DECLARATION

I hereby declare that this long essay has been the result of an independent research,

undertaken by me, under the supervision of Barrister Hannatu Adamu of the

Department of Commercial Law, Ahmadu Bello University, Zaria. All textbooks,

quotations or any other information are indicated and the sources acknowledge by

means of footnotes and references.

________________________ ___________________ Sulaymon Tadese Alamol-Yeqeen Date

iv

CERTIFICATION

This is to certify that this long essay: A CRITICAL APPRAISAL OF ESSENTIAL AND

FORMAL REQUIREMENT OF A VALID WILL UNDER THE KADUNA SATE WILL LAW

1990 was written by SULAYMN TADESE ALAMOL-YEQEEN. It has been read and

approved as meeting part of the requirement for the award of Bachelor of Law (LL.B

Hons) in the Faculty of Law, Ahmadu Bello University, Zaria.

_________________ _______________ Barr. Hanatu Adamu Date Project Supervisor _________________ _______________ Dr. U.S. Muhammad Date Project Coordinator _________________ _______________ Dr. A.M. Madaki Date Head, Department of Private Law _________________ _______________ Prof. Y.Y. Bambale Date Dean of Law, A.B.U., Zaria

v

DEDICATION

MOM AND DAD

You are both special in every way

You both are the reason why Im so strong

You teach me right from wrong.

And when Im sad you song to me that special song.

You tell me everything I need to know.

And when I need you, youre always there, all set to go

So when Im all blue and sad,

I call on you, my mom and dad.

Our Lord! Forgive me and my parents

And [all] the believers on the Day

When the reckoning will be established

You

vi

ACKNOWLEDGEMENT

Whosoever is not grateful to people is not grateful to Allah

I give all glory to God who has always being my present help in time of need.

Without you Allah, I would not have made it this far. With the whole of my heart. My

thanks proceed to my lovely parents Alh. Alamol-Yeqeen Tadese who has an

unquantifiable measure encouraged me in the pursuit of my dream Dad, you are my

mirror, I love you so much and to the best mum in the world which is my Afusat

Aduke Tadese, you are my gold and my model, I cherish you so much. Thanks for

your love and support.

To my siblings, Muibat Kikelomo, Talubi Dimeji, Fauzat Ajoke, life without you would

have been vague for me thank you for all the love, support and above all the unity

between us. Words are not enough to express my love for you all but in my little way

a say I hold you all in high esteem.

To my versatile, amicable, efficient, supportive and indefatigable supervisor Barr.

Hannatu Adamu, you are a mother indeed and the joy of many generations, thank

you for contributing your own quota in the realization of my dream by supervising

my project and for the right guidance may God continue to uphold and lift you up.

vii

To my best friend, Nasiru Sulaeman Arisekola (most reserved) Ahmadu Bello

University, without you would have been empty and vague for me, thank you for

sharing my little world, you are indeed a jewel of inestimable value, thank you for

everything, I cherish you.

This will not be complete without mentioning the wonderful friends that God has

made our path to cross in Ahmadu Bello University for a purpose, these are; Alakan

Aliyu Akorede (knowing you is a blessing to me and you sharing in my world is a

notable point in my life, you worth is more than rubies, you are a treasure. Thank

you for everything), Jibrin Alhassan you have been more than a friend to me, thanks

for giving me a shoulder to lean on, you are a rare gem. I love you so much, David

Ibitayo (Ekitikate), Adebowale Muideen Omotayo, Abubakar Hammed(Yamoye),

Ridwanu Ibitoye, Mustopha Abur-Rasaq(Ayetoro), Ismael Adbul-Azeez(Bajiwe),

Abbas Aqeeb, Abbas Tijani (Dr.), Sherif Akinkumi, Lawal Yusuf Adeniyi(Yuslaw),Idris

Ayuba(kogi),Mustapha Maru and all those that God has used to bless me in the

pursuit of my career, I want to say thank you all. May God reward you all accordingly

and exceedingly.

viii

Without my wife Monsurat Abddulkareem Ajoke, standing behind me, this journey

would have never ending. Then looking confidence in me ensured that I smoothly

sail past and her listening and support in the last couple of years. Thank for your

deep love and unending support.

Lastly, to everyone that God has used to impact my life in one way or the other

spiritually, financially, academically, morally, etc. I am sincerely grateful. May God

continue bless you all. Thank you for everything.

ix

ABSTRACT

Death affects people in many ways. It is never timely, confronts the family with

bereavement the need to readjust emotionally and financially, and often with an

unknown future. Death is not only a personal issue but a legal one as well. No doubt

a person has the unlimited power to dispose off his legal property inter- vivors in any

way or manner he chooses. He may decide to give out everything he owned to total

strangers or friends at the expense of his wife, children, mothers, brothers, sisters or

relations and nobody can question that upon his death, the law tend to limit this

freedom. Various reasons ranging from social responsibility, legal, tradition or

custom, religion have been put forward in justifying this restriction. Is it, therefore,

justified to limit the testamentary freedom of a testator. Thus, this essay is a modest

attempt to discuss a critical appraisal of essential and formal requirement of a valid

will under the Kaduna State Will Law 1990 vis-a-vis their importance to the society

from the standpoint of the ongoing societal development and innovations.

x

TABLE OF CASES

1) Adebajo v adebajo (1973) 4 SC 22

2) Adeyinka v Ibiduni (1939) 4 FSC 280

3) Agidigbi v Agidigbi (1996) 6 NWLR Pt 454 p. 300

4) Andrew v Mortley (1862) 142 ER 1243

5) Arthur v Botienham (1970) 11 Mod. Rep 148

6) Amutsaghan Dafioka & Anor v Couple Edede & 5 Ors (29/2/68) unreported

7) Adesubokun v Yinusa (1971) 1 ALL 225, (1971) NNLR 770

8) Banks v Good Fellow (1870) IRS QB 549

9) Bolanwu v Nezianya (1998) 5 NWLR Pt 119 P. 46; 1 SCNJ 63

10) Booth v Booth (1926) 42 TLR 454

11) Barry v Buttins (1838) 2 Moo DCC 1480

12) Brunt v Brunt (1873) LR 3 P & D 37

13) B. Finnis (1936) 5 2 TLR 153

14) Cheese v Love day (1877) LR 2 P & D 78

xi

15) Cole v Cole (1898) 1 NLR 15

16) Cartwright v Cartwright (1793) WL 161, ER 928

17) Casson v Dade (1856) 25 Bran 195

18) Cain v Moon (1896) 2 Q B. 283

19) Danmole v Dawodu (1958) 3 FSC 46

20) Dan-Jumba v Dan-Jumbo (1939) 5 NWLR 33

21) Dew v Elms (1858) 1 Sw & Tr 155

22) Estate of Gibson (1949) 2 ALLE R 90

23) Estate of Fuld

24) Estate of Borthrmann, Caeser and Watmough v Bohrmann (1938) 1 ALL ER 271

25) Estate of Kremer 1965) 11 OS J 18

26) Federal Administrator General v Johnson (1960) LLR 291

27) George v George (1964) 2 FSC 88, AL NLR 136

28) Glougstoun v Wakott (1843) 11 LTOS

29) Good of Woodward (1871) 2 P & D 206

xii

30) Groffman v Groffman (1969) 2 ALL ER 108

31) Goods of Chateroft (1948) p. 222

32) Goods of Adams (1972) L. R. 2 PO and D 367

33) Goods of Morton (1820) 3B & Aid 489, 106 ER 740

34) Gil v Dill (1909) p. 157

35) Hack v Newborn 82 ER 834

36) Hall v Hall (1891) 3 Ch 389

37) Harness v Public Trustee (1940) 40 SR (NSIN) 414 p 416

38) Howard v Briathwaite (1812) 1 Ves & B 202

39) Idehen v Idehen (1991) 6 NWLR p. 259

40) Johnson v Maja (1951) 12 WACA 290

41) Jeckins v Gainsford (1863), Swab Trust 93

42) Jadesimi v Okotie-Eboh (1996) 2 NWLR 429

43) Keigwin v Keigwin (1943) 3, Quit 609

44) Lawal-Osula v Lawal-Osula (1995) 9 NWLR (Pt. 419) p. 259

xiii

45) Lowthorpe-Lutwidgeu v Elstone (1893) p. 1

46) Marguess v Winchester (1958) 6 Co Rep 23

47) Mette v Mette (1859) 1 SW & Tr 416

48) Nelson v Akofirunmi (1959) LLR 143

49) Nezianya v Okagbue (1963) ALL 352 p. 10

50) Nwabuoku v Ottih (1961) 1 ALL NLR 487

51) Oghahon v Reg. Trusstee (2002) 1 NWLR pt. 749 p. 675

52) Ogunmefun v Ogunmefun (1931) 10 NRL 81

53) Okelola v Boyle (1998) 5 NWLR Pt. 119 p. 46:1 SCNJ 63

54) Ogiamien v Ogianmien (1967) NWLR 245

55) Osula v Osula (1995) 9 NWLR Pt. 419 p. 259

56) OLeary v Douglas (1878) 13 LR 323

57) Parker v Felgate (1893) 8 P & D 471

58) Perara v Perara (1901) A. C. 354

59) Public Trustee v Bussell (1993) 30 NWLR 111

xiv

60) Perkes v Perkes (1871) 2 P&D 206

61) Re Goods of Savory (1851) 15 Jur 1042

62) Re Watts v Smithers (1939) Ch 1015 p. 1020

63) Randfield v Randfield (1863) 32 LF Ch 668

64) Re Solicitor (1939) 1 QB

65) Smith v Tebbit (1867) LR 1 P & D 398

66) Suberu v Summonu (1957) Vol. 2 FSC 33

67) Signh v Armichand (1948) A. C. 161

68) Sutton v Saddler (1857) CBNs 547 Vol. 140 ER 671

69) Taiwo v Taiwo (1958) 3 FSC 80

70) The Estate of Randel Deceased (1962) 1 ALL NLR 130

71) Tilley v berg & Berg No. 2 (1945) 3 WWR 81

72) Winte v Nye (1959) 1 ALL ER 552

73) Winchiosea v Wauchope

74) Yinusa v Adesubokan (1971) 1 AL AILR 225, NNLR 79

xv

TABLE OF STATUTES

1) Armed Forces Act, 2004

2) Constitution of the Federal Republic of Nigeria, 1999

3) Evidence Act Cap E14 (2004)

4) Evidence Act Cap E14 (2011)

5) Wills act, 1837

6) Wills Law of 1958

7) Wills Law of Kaduna State, Cap 163, LFN, 1990

8) Wills Law of Bendel State, 1978

9) Wills Law of Oyo State, 1990

10) Wills Law of Lagos State, 2004

11) Wills Law of Western Nigeria Cap 133, 1959

xvi

LIST OF ABBREVIATIONS

1) AC: Appeal Cases

2) ALL ER: All England Reports

3) ALL NLR: All Nigerian Law Reports

4) Ch: Law Reports of Chancery Division

5) ER: English Report

6) ERNLR: Law Reports of Eastern Nigeria

7) Exch: Exchenquer Reports

8) FSC: Selected Judgement of the Supreme Court

9) KB: Law Reports, Kings Bench Division

10) LLR: High Court of Lagos Law Report

11) LR: London Report

12) LRN: Nigerian Law Report

13) LT: Law Times Report

xvii

14) NLR: Nigeria Law Reports

15) NMLR: Nigeria Monthly Law Report

16) NNLR: Law Reports of Northern Nigeria

17) NSCC: Nigeria Supreme Court Cases

18) NWLR: Nigeria Weekly Law Report

19) P&D: Law Reports, Probate

20) QB: Law Reports, Queens Bench Division

21) SC: Judgement of Supreme Court of Nigeria

22) Sw & Tr: Swabey & Transtrams Reports, Probate & Divorce

23) TLR: Times Law Report

24) WACA: Selected Judgement of West African Court of Appeal

25) WNLR: Law Reports of Western Nigeria

26) SCNJ: Judgement of Supreme Court of Nigeria

xviii

TABLE OF CONTENTS

Title Page . . . . . . . . . . i

Copyright Statement . . . . . . . . ii

Declaration . . . . . . . . . . iii

Certification . . . . . . . . . . iv

Dedication . . . . . . . . . . v

Acknowledgement . . . . . . . . . vi

Abstract . . . . . . . . . . ix

Table of Cases . . . . . . . . . x

Table of Statutes . . . . . . . . . xv

List of Abbreviations . . . . . . . . xvi

Table of Contents . . . . . . . . . xviii

CHAPTER ONE

GENERAL INTRODUCTION

1.1 Introduction . . . . . . . . . 1

xix

1.2 Literature Review . . . . . . . . 3

1.3 Statement of Problem . . . . . . . 14

1.4 Aims and Objective of the Study . . . . . . 15

1.5 Scope of the Study . . . . . . . . 15

1.6 Justification of the Study . . . . . . . 16

1.7 Research Methodology . . . . . . . 16

1.8 Organization Layout . . . . . . . 17

CHAPTER TWO

DEVELOPMENT OF WILLS LAW IN NIGERIA

2.1 Introduction . . . . . . . . . 19

2.2 Definition and Types of Wills . . . . . . 20

2.2.1 Other Devices of Disposition of Property . . . . . 28

2.3 Historical Development of Wills Law in Nigeria . . . . 33

2.3.1 Pre Colonial Era . . . . . . . . . 33

2.3.2 Colonial Era . . . . . . . . . 36

xx

2.3.3 Post Colonial Era . . . . . . . . 38

2.4 The Kaduna State Will Law . . . . . . . 42

2.5 Legal Terminologies . . . . . . . . 45

CHAPTER THREE

FORMAL REQUIREMENT OF VALID WILL

3.1 Introduction . . . . . . . . . 48

3.2 Formal Requirement of a Valid Will under Wills Act 1837 . . 48

3.3 Formalities of Making a Will under the Kaduna State Will Law . . 53

3.3.1 Writing . . . . . . . . . 54

3.3.2 Age . . . . . . . . . . 54

3.3.3 Dye Execution . . . . . . . . 55

3.3.4 Attestation . . . . . . . . . 57

3.3.5 Restrictions on Freedom to make a Will . . . . . 62

xxi

CHAPTER FOUR

ESSENTIAL REQUIREMENTS

4.1 Introduction . . . . . . . . . 73

4.2 Testamentary Capacity . . . . . . . 74

4.3 Sound Disposing Mind . . . . . . . 77

4.3.1 When Necessary . . . . . . . . 83

4.3.2 Knowledge and Approval . . . . . . . 87

4.3.3 Effect of Supervising Insanity . . . . . . 89

4.3.4 Periods of Lucidity . . . . . . . . 89

4.4 Recovery After Incapacity . . . . . . . 92

4.5 Presumption of Sound Disposing Mind . . . . . 92

4.5.1 Evidence to Support Evidence of Sound Disposing Mind . . 95

4.5.2 Delusion . . . . . . . . . . 99

xxii

CHAPTER FIVE

VITIATING FACTORS

5.1 Introduction . . . . . . . . 180

5.2 Vitiating Factors . . . . . . . 109

5.2.1 Undue Influence . . . . . . . 109

5.2.2 Others . . . . . . . . 114

5.3 Revocation of Will . . . . . . . 118

5.3.1 Revocation by Destruction . . . . . 120

5.3.2 Subsequent Will or Codicil . . . . . . 124

5.3.3 Subsequent Marriage . . . . . . 127

CHAPTER SIX

CONCLUSION

6.1 Summary . . . . . . . . 135

6.2 Findings . . . . . . . . . 138

6.3 Recommendation . . . . . . . 139

Bibliography . . . . . . . . 141

1

CHAPTER ONE

GENERAL INTRODUCTION

1.1 Introduction

Death affects people in many ways. It is never timely, confronts the family with

bereavement the need to readjust emotional, and financially, and often with on

unknown future. Death is not only a personal issue but a legal one as well. A death

certificate must be issued, and the estate of the deceased individual must devolve to

others according to intention of deceased person.

For a will to be legally binding a number of requirements must be met. The

requirements are complex and legal advice should always be sought before making a

will. The reason for this that if the requirement are not met, the will is likely to be

rendered invalid, which could result in the deceaseds assets being distributed other

than accordance with his or her wishes.

A valid will cannot exist unless three essential elements are present. First, there must

be a competent testator1. Second, the document purporting to be a will must meet

the execution requirements of statutes often called the statutes of Wills, designed to

1 Section 6 cap 163 Laws of Kaduna State (1991).

2

ensure that the document is not a fraud but is the honest expression the testators

intention.2 Third, it must be clear that the testator intended the document to have

the legal of a Will.3

A competent testator is a person who is of sound mind and requisite age at the time

that he makes the Will, not at the date of his death when it takes effect Anyone over

a minimum age, at the usually 18, is legally capable of making a will as long as he is

competent. A person under the minimum age, dies intestate (regardless of efforts to

make a will), and his property will be distributed according to the laws of descent

and distribution.

Every state has statutes prescribing the formalities to be observed in making a valid

will. The requirements relate to the writing, signing, witnessing, or attestation of the

will in addition to its publication, these legislatives safeguards prevent tentative

doubtful or coerced expressions of desire from controlling the manner in which a

persons estate is distributed.

For a will to be admitted to probate, it must be clear that the testator acted freely in

expressing his testamentary intention. A will executed as a result of undue influence,

2 Section 7 cap 163 Laws of Kaduna State (1991).

3 Section 8 cap 163 laws Kaduna State (1991).

3

fraud, or mistake can be declared completely or partially void in a probate

proceeding.

In this work, we intend exposing the requirement (both formal and essential) that

the Will of a deceased must satisfy before his Will and the provisions therein are

valid and enforceable. It must be mentioned from the beginning that, and exclusion

of any these requirements in the making, formation and creation of a Will render the

provision therein void and unenforceable. The area ,of our consideration, is Kaduna

state hence an assessment of the formal and essential requirement of a valid Will

under the law, by the end of this work, it intended that renders would have been

educated on the legal expectation with respect to the making of a Will in Kaduna

State.

1.2 Literature Review

Although there are volumes of materials on the subject matter of Wills as it relate to

England and Nigerian as a whole, there are dearths of materials on the subject

matter of Wills under the Kaduna State law specifically. Consequently, reference was

made to the body of Kaduna State Wills law itself and some others Wills law with

broader scope with a view to using the present to clarify and make possible

4

explanations of the former; the attitudes of Will law are also called in aid, so that a

good exposition is made. Moreover, since the Wills Act as found in the 2004 volume

of the laws of the federation of Nigeria is substantially pari material with the Will

Act of England, and the Kaduna State Wills law also derives from the Wills Act cap.

163 L.F.N 2004, it could be confidently said that the attitude of the English court may

possibly be that of Nigerian on selected issues.

This is not to say however, that the researcher never laid her hands on any useful

material, at this juncture, it imperative to acknowledge the book Wills, Law and

Practice by Kole Abayomi4 which offered a very helpful purpose and critical

explanation on essential forma requirement of a valid Will. Testamentary capacity

simplicity connotes many things to many people. Simply put, it means the capacity to

make a testament that is a Will. Statutes may delimit the extent of capacity5 For

instance, section 4 (1) cap. 163 Laws of Kaduna State States it shall be lawful every

person to bequeath dispose of, by his Will executed in accordance with the

provisions of this Act, all property to which he is entitled, either in law or in equity at

the time of his death. Although the book has made a very good attempt at making

4 Abayomi, K. Wills Law and Practice Mbeth and Associates (Nig) Ltd, Lagos (2004)

5 Ibid

5

references to the position of the law under the various wills laws of state in Nigeria,

such references are no doubt only passive as only a comprehensive look is made at

the Will Act in the laws of Nigeria as England.

Furthermore, Mwabueze6 has suggested that apart from the concept of

testamentary capacity which simplifiers connote the capacity to make a testament

that is a Will there is also the concept of testamentary power, the logic of which

seems to be that to all intents and purposes one may have full testamentary capacity

but because the law restricts once ability to dispose of all or some of one property,

one may therefore lack the necessary power. One agrees with Abayomi K. when he

argues that above sentence of Nwabueze on the matter is mere semantic in that

whatever the reason for the testators in ability to dispose of his property as a

pleases, in the final analysis, he is said to lack the necessary testamentary capacity7.

It is therefore not in any way necessary to speak of testamentary capacity and

testamentary power as appearing to bear meanings that is deferent from one

another when they actually connote one and the something.

6 Nwabueze B. power of Testamentary Disposition in Bendel and Western State of Nigeria (1992). N. S. vol.

1122. 7 Op. cit

6

In line with the development in the English law of Wills, some states in Nigeria have

also qualified the total freedom of testamentary power as contained in the Wills Act

of England and the various Wills law of Nigeria.

The Wills law of Kaduna State and Lagos State contained such restrictions. Thus by

section 5 of the Will law Kaduna State,8 The following special provisions are made for

the family and dependence of the testators

(1) notwithstanding the provisions of section 1 of this Law where a person dies and is survived by any of the following persons.

(a) The wife or wives or husband of the deceased; and

(b) A child or children of the deceased

That person or those persons may apply to the court for an order on the grand that disposition of the deceased estate effected by his Will is not such as to make reasonable financial provision for the applicant.

(2) In the section reasonable financial provision in the case of application made by virtue of subsection (1)

(a) of this section by the husband or wife or wives of the diseased except where the marriage with the deceased was subject of a decree of judicial separation in accordance with any customary Law and all the date of the death the decree was in force and the separation was continuing, means such financial provisions as it would be reasonable in all the circumstances of the case for

8 Cap 163 laws of Kaduna State (1991)

7

husband or wife wives to receive, whether or not that provision is required for his, or her maintenance.

Thus by these two subsections, a spouse or child of the testator who has been left

out In the Will or whose legacies are considered by him or her in adequate, can apply

to court to vary the Will in order to increase such legacy in the case someone who

has been left out completely.9

By Subsection 3 the right to apply to court must be exercised within six month of the

grant of probate.

In spite of similarity of this provision to the English one, the differences between the

two are significant. For example, the right to apply for a variation of the Will is

limited to the spouses and children in the Kaduna Law, whilst it is extended to all

who were dependent on the testator in the English law. Thus nieces nephews,

mistresses and the people with no blood collection could apply provided, they were

dependent to some degree on the testator at the time of his death.10

Whilst this innovation may provide, a means of remedying flagrant cases of in

justice against family members in the exercise of testamentary power, it may, as

9 Sagay, I.E; Nigerian Law Of Succession, Principle, Cases, Statutes and Commentaries; Mathouse Press Ltd

(Nig) Lagos, (2006) P. 132 10

Op. cit.

8

has been accurately observed by Utuama, give rise to endless litigation, not only

involving the washing of the dirty linen in public11 but also holding up the

distribution of the testators estate indefinitely.

Furthermore, the provision does not seem to make exception for under serving

children and spouses. Should family members who abandoned the testator in his life

time insist on a right to share in his estate?

The Will Edict of Oyo State (1990), not only limits the right of a testator to dispose of

property which he is precluded from disposing of under Customary Law, (as is the

case under Wills Laws of all states created from the formal Western Region) but also

provides that it shall not apply to the Will of a person who immediately before his

death, was subject to Islamic Law. This means in effect that, all restrictions imposed

by Islamic Law on the right of a Muslims of freely dispose of his estate by Will, now

apply to Muslims domiciled in Oyo State. In practice, this means that such a testator

has very little freedom of testamentary power, since Islamic Law has comprehensive

and fixed positions for the disposal of a deceaseds estate In short there is no point

in such a person making a Will. One other thing this provision in the Oyo State Will

11

Utuama; A. A; Evaluation of Wills in Law of Will in Nigeria, Utuama, A.A and Ibru, G.M. (eds) 2001, shaneson C.I. Ltd, Ibadan P. 128.

9

Law (1990) has done is to effectively override the Supreme Courts decision in Yinusa

v. Adebusokan, and restore the decision of Mohammed Bello, J. as he then was.12

On the other hand, Wills have been extensively discussed by foreign authors.

Example of these authors are Garrow and Wills; A Will is in its nature revocable

during the life of the testator, for he may changed his intentions from time to time

and may accordingly give expression to his changed intentions. This is sometimes

expressed by saying that a Will is an ambulatory instrument.13 And also Jerman

Thomas arguing that Wills are ambulatory and, therefore may be revoked at any

time by x before his death T may wish for example, to cancel in the following Ways,

by destruction, by executing another Will or codicil, by marriage14.

Moreover, insistence, on strict compliance with the formal requirement of a Will

arises from the need to safeguard the Will against Fraud. The formal validity of a Will

is with regard to immovable governed by the fex situs and in the movables governed

by the law of the domicile of the testator at the time of his death15.

12

Sagay, I.E. op.cit p. 132 13

Garrow and Wills, Law of Will and Administration, Butterworth, Welhugton (1960) p.2 14

Jarman Thomas, A Treatise on Wills, Sweet and Maxwell Ltd, London (1951) p.57. 15

These principles are derived from the rules of English common Law, including rules of private international law, incorporated into Nigeria by relevant provisions of the various High court Laws and in the case of Western Nigeria by the law of England (Application law cap. 60, 1959 law of Western Nigeria.

10

There are a number of cases on the issue. An example is the case of B. Finn;16 n a

predominantly illiterate society like Nigeria, special cognizance has to be taking of

this phenomenon. This is a significant number of illiterate testators will usually

authenticate the content of the Will by making a thumb mark. In an English case of

B. Finn, it was held that where an illiterate testator made a thumb mark in lieu of

signature, this was sufficient although the normal mark in such circumstances in

England was a cross. By contrast, the normal mark such circumstances in Nigeria of

the thumb mark. The issue of the validity of the thumb mark in lieu of signature

cross for consideration in Amutsaghan Dafioka & Anor. V. Couple Edede & 5 Ors.17 In

when a Will validity was challenged because it did not bear illiterate testators

signature but nearly her thumb mark. Evidence was adduced to establish that the

deceased affixed her thumb mark after the content of the Will had been interpreted

in Urbobo Language, her language. The thumb mark imprint was also done in

presence of two witnesses who deposed to that effect separate document. The

question was whatever thumb constituted signing as stipulated in the Will Law of

Western Nigerian.

16

15 (1936) 5. 2TLR. 153 17

Unreported, High court of Midwestern State Sapele, Judicial division (Ekeruche), 29/2/68.

11

In answering this question affirmatively, Ekeruche, J. referred to the concise Oxford

Dictionary which defined to sign as to acknowledge or guarantee (letter, deed,

picture, book, article, petition, e.t.c. as ones own production or as having ones

authority or consent by affixing or having affixed ones name, initials or recognized

mark.

Even more to the point was the courts reference to the second impression of the

dictionary of English law by Ear/Joweth which defines signature as follows at

page164 I. A person signs a document when he writes or marks something on it in

taken of his intention to be bound by its contents. In the case of an ordinary person

signature is commonly performed by his subscribing his name to the document and

hence but signature is frequently used as equivalent to subscription but any mark

is sufficient if it shows an intention to be bound by the document. Illiterate people

commonly sign by making a cross finally, the court also referred to the Western

Nigerian Interpretation Law, Cap 51 of the Laws of Western Nigeria, 1959, in which

the word sign with referred to a person who is unable to write his name is state to

include a mark.

12

The courts have been generally very flexible in interpreting the word signature The

following have been held to constitute signature initial alone18 or assumed name,19

stamping an instrument20 or your loving Mother.21

Meant to represent the testatrix. In the Goods of Cheleroft22 a testatrix was on the

verge of her death. Her normal signature was E Chaleroft, but she was only able

write E Cha. It was held that this was sufficient

Formerly, under the Kaduna state Wills Law 1990. Section 7(c) provides that no Wills

shall be valid unless the testator makes or acknowledges the signature in the

presence of at least two witnesses present at the sometime23. And also Wills Act of

1837, the signature was required to be at foot on end thereof of the Will. This was

widely interpreted to mean that it must immediately follow the dispositive part of

the Will. As a result, a testators signature was regarded as invalid of it was possible

to insert any writing between the last word in the Will and the signature. The Wills

Amendment Act of 1852 was brought into correct that situation. Under it a testators

signature could also validity be at or after, or following or under, or beside, or

18

In Re Goods of savory (1851) 51 Jur. 1042 19

In B. G lover (1847)11 Jur. 1022 20

Jerking V. Gains ford (1863), Swab V. Trist 93 21

In B cook (1960) I WLR 353. 22

(1948) P. 222 23

Wills law of Kaduna State

13

opposite to the end of the Will or in the attestation clause or beside the signature

of the witnesses or after a blank space at the end of a Will, or on a blank page even if

there is no room at the bottom of the previous page.24

Thus the vital test in every case is intention of the testator can legitimately be

assumed to have been given effect to, by his duly attested signature.

In under to achieve a balance and extensive research work, attempt will be made to

complement the work done by Nigerian and foreign authors of the Law of Wills.

The Kaduna State Will Law may be reviewed to be in concomitance with the new

Evidence Act25, which makes provision for documentary Evidence.26

The current Wills laws of Kaduna State do not make provision for a testator who

wants to make a will but is not in a position to write anything. Will any information

recorded or stored by means of any types-recorder, computer, or other device; or

any other material subsequently derive from information recorded or stored; Any

label, marking or other writing that identify or describes anything of which it form

part or to which it is attached by any means; any photograph, film, negative, tape or

24

Section 7 of the Wills law. Of western Nigerian 25

The Evidence Act cap E. 14(2004) 26

Section 258 of the Evidence Act cap. E14 (2011)

14

other device in which one or more visual images are embodied so as to be capable

(with or without the aid of some other equipment) of being reproduced, be

acceptable? All these are capture under the Evidence Act.27

1.3 Statement of Problem

It has been observed that many a people in Kaduna State make their Wills not

observing the necessary requirements that make Will valid and in accordance with

the expectation of the law, because they are illiterate, so that after death what is

being avoided in the form of an unregulated manager affairs of the deceased come

to pass as a result of the invalidly of the Will claimed to have been made by the

deceased. The result then becomes that the properly of the deceased becomes

disposed contrary in the mind of the deceased, his affairs become managed

according to the Wills and dictates of another man and his family is being exposed to

the danger of the arbitrariness of another man.

27

Section 5(a), section. 258, S. 84(i) of the Evidence Act E. 14 2011

15

1.4 Aims and objective of the study

The aim of this long essay is to discuss This often avoided concept called Will and to

elucidate on the requisite formalities prescribed by law as to the formation of a valid

Will under Nigeria law i.e. the Wills Act28 and in particular Kaduna State Wills law29

The main objectives of this research are to:

a) Highlight the formal and essential requirement of a valid Will under the

Kaduna State Wills law with a view to addressing the problem above

b) Examine the formal and essential requirement of a valid Will under the

English Wills Act with a view to observing any areas of similarity or otherwise.

c) Examine other methods of disposition of properties as recognized by the law

a view to identifying some other easy means of property disposition.

d) Feature factors that vitiate or revolve Wills.

1.5 Scope of the Study

The scope of the research will encompass Kaduna Wills law generally but reference

will be made to the situations in other parts of Nigeria, as the English law of 1837

28

Cap 163 Laws of Kaduna State (1991) 29

Wills Act 1837

16

1.6 Justification of the Study

As earlier on state, the law on Will in Nigeria. Is an aspect of law which many authors

have neglected hence research in this area will be of immense benefit to the whole

society.

The research Will also be of benefit to a legal practitioner as it Will serve as a guide

to which recourse may be made when drafting a clients Will

It will also benefit layman in the street because it will avert his mind to the

requirement at making a valid for there is no man who is sure of when he/she will

die.

1.7 Research Methodology

The method which Will be used in this research is Doctorial i.e. library oriented.

Distinguished works of several legal authors, local and foreign, Will serve as a guide

throughout the research.

The research will also rely on the daily experiences of Nigerians with regards to

making of a Will and succession statutes. Other relevant materials such as law

Journal, newspaper and internet material shall be consulted in the course of this

research.

17

1.8 Organizational Layouts

This work is divided into six chapters

Chapter one gives a general introduction of the subject matter, introducing what is

to be found in the body of the work. It also gives information on the methodology

employed

Chapter two discusses in brief historical development and nature of Will. It also

define what a wills as well as types of Will that exist under the laws, finally; other

device of the disposition of property are also examine there under.

Chapter three tagged formal requirement of a valid Will examine the formal

requirements not only under the Kaduna state Wills law, which is our area of

consideration but also the position of the law under the Will Act of 1837 in England

which accidently stands as the parent law to our own in Nigeria from which the

inspiration is drawn.

Chapter four consider the testamentary capacity a deceased to make Will so that

issues such as the mental capacity as in sound disposing mind of the testator e.t.c. is

captured. This chapters also captures the effect of supervising insanity

Chapter five deals essentially with vitiating factors and revocation of a Will.

18

Chapters six anchors this research by summarizing the work, findings and include the

work.

19

CHAPTER TWO

DEVELOPMENT OF WILLS LAW IN NIGERIA

2.1 Introduction

Prior to the formal introduction of the English model of Will in our judicial system

through the Will Act of 1837, succession to the estate of a deceased was determine

customarily though customary or nuncupative Wills in the traditional societies that

make up the present day Nigeria.

Each society had its own unique means of testamentary disposition but one stand

that out across was the fact that such was carried out in the presence of witnesses

who ought not to benefit from such disposition. The requirements of the modern

day will were not necessary as there were indigenous measure to ensure to

compliance, added to the fact that such requirements were alien.

Till date, customary or nuncupative wills which are basically oral, are valid but are

not within the province of the Wills Act or various Wills laws of the states. The basic

20

nature of a nuncupative or customary will was capture by Hon Justice Adetokunbo

Ademola C.J.F.C as the then was) in the case of Ayinke v. Ibidunni1, as follows:

It is my view that disposition of properties could be made under native law and

custom by a gift followed b a transfer of the property or a declaration by a man on

his death-bed in the presence of witnesses.

2.2 Definition

The Blacks law Dictionary defines a Will as follows:

Will wish, desire, pleasure, choice, of the faculty of conscious, and especially of

deliberate, action.

An instrument by which a person makes a disposition of his real personal property,

to take effect after his death, and which by its own nature and revocable during his

lifetime.

The legal expression or declaration of a persons mind or wishes as to the disposition

of his property to be performed or take effect after his death. A revocation

instrument by which a person makes disposition of this property to take effect after

his death. A writing instrument executed with the formalities required by statutes,

1 (1959) 4 FSC 280.

21

whereby a person makes a dispose of his property (real and personal) to take effect

after his death.2

On the other hand codicil is defined by the same Dictionary as:

A supplement or an addition to a Will, it may explain, modify, add to a Will, it may

explain, modify, add to, subtract, qualify, alter, restrain or revoke provisions in

existing Will. Such does not purport to dispose of entire estate or to contain the

entire Will of testator, nor does it ordinarily expressly or by necessary implication

revoke in Toto a prior Will.3

However several authors have given their respective definition as to what a Will is. A

Will has been described as the expression by a person of which he intends to take

effect only at his death.4

A Will is a testamentary and revocable document, voluntary made, executed and

witnessed according to law by a testator with sound disposing mind wherein he

disposes of his property subject to any limitation imposed by law and wherein he

gives such other directives as he may deem fit to his personal representatives

2 Blacks law Dictionary, sixth Edition (1994) at P. 1598.

3 Ibid.

4 Adubi, C.O; Drafting, Conveyancing and Will, The light house publication company Ltd. Lagos (1995) page 107

22

otherwise known as his executors, who administer his estate in accordance with the

wishes manifested in the Will.5

Now, in order to break down the legal jargons inherent in the above definitions and

put it plainly for the layman, a Will is a document made by a person called testator

wherein he confers benefits on another called the beneficiary; a document by which

a person transfers benefits or assets to another person; an instrument that provides

security or welfare for the family of the maker; the sum total of what a person

wishes to happen to those he leaves behind on his death.

One striking to note about the Will is that until the maker dies, he reserves the right

to alter or revoke it. That is called ambulatory. Importantly too, the Will take effect

only upon the death of the maker.

Types of Wills

There are various types of Will, as follows

Statutory Wills

A statutory Will is one made in accordance with the provisions of the relevant

statute in force6 in order to be valid; it must conform with the requirement

5 Abayomi, K. Wills law and practice. Mbeth and Associates (NIG) Ltd, Lagos (2004).

23

prescribed in the relevant statute. Non-compliance with any or all the stipulations

may render the will void and of no effect. In such a situation, the Will.

Is not worth the paper in which it is written in a case like this the bounties of the

testator might end up with those he never contemplated.

Nuncupative Will

An oral Will declared or dictated by the testator in the moment before a sufficient

number m of witness, and after words reduced to writing; is a nuncupative Will

made by the verbal declaration of the testator, and usually dependent merely on

oral testimony for proof. Such Will are invalid in certain states, and in others are

valid only under certain circumstance7 such as when they are not contradicting an

existing legal Will.

A nuncupative Will takes the form of an oral declaration made voluntary by the

testator during his life time. Such declaration may be made while in good health or in

anticipation of death and must be made before credible witnesses.

Written Customary Will

6 Will Act 1837, Wills Act Amendment Act 1852, Wills law of the old Western Region of Nigerian, 1958. Wills

Edict 1990 of Lagos stsate, Kaduna Will Law 1991. p.6. 7 Williams on will (9

th ed.), 2008 at p.21

24

A written customary Will is a Will which does not conform and requirement specified

by law. It can be described as written declaration which does confirm to statutory

requirement.

There are two schools of thought on the validity of written customary Wills, Dr. M.

Odje appears to suggest that any such document must face or rise with the provision

of the general statute relating to Wills.8 According to the view, if a Will complies with

the law, it should be treated as statutory Will and if not, it fails and becomes null and

void. On the other hand Dr. Okoro inclines to the view that once customary Will is

recognized as by native law, and custom, it does not matter in which form it takes

whether oral or written. The qualification he adds to it acceptability is that the

document is genuine.9

It may really amount to a moots point whether or not a customary written Will is

valid and legal within the circles of the village heads, leaders, an kinsmen, it is

generally believed that the declarations of the dead are not easily departed from but

were executed out of respect for him or in fear of his anger and spiritual vengeance

from the grave.

8 Harney The Law and Practice of Nigeria and Succession (1664) at p.45.

9 Okoro custom laws of eastern Nigerian and Associates (Nig) Jucial Rules covering their Applications.

25

As long as the declarations whether or oral are accepted by all and no quarrel or

disagreement manifest, effect, would be given to them. In the event disagreement

and the aggrieved party contests a customary written Will the question then arises;

has the document complied with the relevant law? If it has not, then regular court

would not lend its weight and authority to such a Will.

It would appear that a statutory Will is far more efficacious that the other types. It is

unlikely that the enlightened and educated Nigerians would want their bounties to

devolve by tenuous methods of disposition. Our kith and kin in the village and those

of moderation means in urban areas may use the easier customary mode devolution

of property.

Joint Wills

A join will is a single document containing the testamentary was her (Will) of two or

more persons. In other words, a join Will strictly consists of the Wills of two or more

person in one document. This a joint will does not take effect as one Will, but as the

separated Wills of parties who made it. Thus if a husband and wife make a join will

and the husband dies before the wife, the document can be admitted to probate

first as the Will of the husband on his death and secondly as the will of the wife on

26

her death subsequently. Thus a joint will is really separate wills made in one

document, and it can be revoked by either of both parties at any time, and without

the consent of the other part, although This court give rise to actions for breach of

contract or trust.

in other words apart from the mere fact that a joint Will is made on the same piece

of paper, it is for all purposes regarded as the separated Wills of the parties who

made it for example one party can make a separate condicil to a joint Will and can

republish a joint Will as a separate Will because of the clumsiness, a joint Will is not

generally recommended unless the Will is also a mutual Will10.

Mutual Wills

By contrast, mutual Wills are made by two or more persons, usually in substantially

the same terms, conferring reciprocal benefits, following an agreement between

them to make such Wills and not revoke them without the consent of each other.

Mutual Wills may be made in the form of a joint Will or as separate Will There are

two basic types (a) reciprocal life interests with remainders over. Thus a husband

and wife may make mutual Wills giving a life interest to the survivor with remainder

10

Sagay, I.E; Nigerian Law of succession, principles, cases, statutes and commentates. Mathouse pres Ltd (Nig) Lagos (2006) p.132

27

to their son (b) Absolute gifts with alternative provisions in the event of the

predecease of the other person. A husband and wife may each make Wills leaving

the whole of their property to the survivor, but providing that of the spouse does not

survive, then the whole of the property shall go to their son11

Holographic Will

This refers to a will written, dated signed by the hand of the testator himself.

Normally, a will must be signed by witnesses attesting to the validity of the testators

signature and intent, but in many jurisdictions, holographic Wills that have not been

witnessed are treated equally to witnesses Wills and need only to meet minimal

requirements in order to be probated.

There must be evidence that the testator actually created the Will, which can be

proved through the use of witnesses, handwriting experts, or other methods. The

testator must have had the intellectual capacity to write the Will, although there is a

presumption that a testator had such capacity unless there is evidence to the

contrary. The testator must be expressing a wish to direct the distribution of his

estate to beneficiaries.

11

Ibid Sagay, I.E p.169.

28

Holographic Wills are common and are often created in emergency situations, such

as when the testator is alone, trapped, and near death. Jurisdiction that do not

generally recognize unwitnessed holographic Wills, Will accordingly grant exceptions

to member of the armed services who are involved in armed conflicts and sailors at

sea, though in both cases the validity of the holographic will expire at a certain time

after it is drafted12.

2.2.1 Other Devices of Disposition of Property

Settlement Inter-vivos

As has been shown, a testator may leave his property to a beneficiary by the

instrumentality of a Will. A similar result may be achieved if the testator conveys his

property inter-vivos to trustees to hold for himself (The Settlor) for life with the

remainder to a beneficiary. If the beneficiary survives, the settlor, the effect of the

settlement is similar. In many respects to gift contained in a Will, the major

difference arise from the nature of a Will and of a Will and of a settlement with a

Will which is revocable and testament, beneficiary needs generally to survive the

testator to be able to take otherwise the gift lapses with a settlement, the interest of

12

http://www.academicjoemals .org/JLCRClast accesed 29 september 2011).

29

the remainder man rest immediately subject to the life. Accordingly, if the

beneficiary under a settlement, predeceased the secttlor, then provided the settler

had not revoked the settlement, the beneficiarys interest Will form part of the

beneficiarys estate.13

Nomination

This is a direction to a person say A, who holds funds for another person B, to pay

the funds in the went of Bs death, to a person or persons nominated by B take the

funds. Nomination, likes effected. Usually at death. Unlike a Will, it is generally

limited to funds and does not require the elaborate statutory for militaries necessary

for the validity of a Will. In the example given above, if B fail to make any

nomination, the funds are then paid directly to the representative of the deceased.14

Donation Mortis Causa.

Donation mortis causa (Latin, meaning gift on the occasion of death). Is a gift made

during the life of the donor which is condition upon and takes effect upon, death.15

13

Abayomi, K. op. cit at 3 14

lbid, Abayomi K. at p. 3 15

http://en.wikipedia.org/wiki/Donation-cause (2 feb 2013).

30

According to the authorities there are usually said to be three essential requirements

for a transaction concerning property to constitute a valid donation mortis causa.

There have been given variant expression by the courts. The variance over time is

party accounted for by the fact that the concept of a donation mortis causa has been

expanded by the courts admitting new categories of transaction that will be upheld

as such a gift. The original formulation, and one which is often repeated in the cases,

is that in Cain v. Moon16 where Lord Russell of killowen said;

For an effectual donation mortis causa, three things must combine. First, the gift or donation must have been in contemplation, though not necessarily in expectation, of death; secondly, there must have been delivery to the donee of subject-matter of the gift, and, thirdly, the gift must be made such circumstances as show that the things is to revert to the donor in case he should recover.17

Given later formulation of the relevant conditions it could appear that some

modification of this is required. The requirement can now probably be better

summarized as follows:

16

(1896) 2 Q.B.283 17

Ibid. at P. 286

31

(i) It must be made in contemplation, although not necessarily in the

expectation, of the donors death,

(ii) It must be made subjected to the condition that it will only become

indefeasible in the event of the donors death and should the deceased

imminent death not occur the gift will fail, or, put another way it must be

show to be conditional upon the death of the donor and capable of

revocation by the donor unit that time; and.

(iii) There must delivery of the gifted property to the donee, or delivery of part of

the means of getting access to the property, or delivery of what have been

the essential indicia of title.18

It is generally believed that the gift must be capable of passing as donation. With

regard to most personally (personal property), this requirement does not pose any

problem, for constructive delivery of the key or the deeds are sufficient and valid.

Deed of Gift

Deed of gifts, legal instrument that establishes the voluntary transfer of the title to a

personal or real property by its owner without monetary consideration. 18

Public Trustee v. Buseell (1993) 30 NSWLR; Harneiss v. Public Trustee (1940) 40 SR (NSW) 414 at 416. 417;57wN (NSW) 157 at 157.158;

32

The deed of gift is formal, legal, agreement that transfers ownership of, and legal

rights in, the material to be donated. Executing a deed is in the best interests of both

donor and repository. After discussion and agent, and an authorized representative

of the repository. The signed deed of gift.

Establishes and governs the legal relationship between donor and repository and the

legal status of the materials

Depending on particular circumstances, lawyers may advise clients to opt for inter-

vivos outright gift instead of testamentary disposition. Such advice may be preferred

where the Will is likely to be contested, stolen, destroyed or otherwise tampered

with. It may be that the testator out of shear consideration for the feelings of his

children and or consideration for church might not want the beneficiary to be

mentioned at all in his Will. Or it may not be generation expedient for whatever

reason to mention, the beneficiary is the Will. A deed of gift to a love one may allay

the fears of the testator and he may have peace of mind to know that he has given

some security to the donee in this lifetime.19

19

Aboyomi, K. Op. cit p.4.

33

2.3 Historical Development of Wills law in Nigeria

2.3.1 Pre-Colonial Era

In pre-colonial era, the disposition of property was governed by the prevailing

customary law or Islamic law prevailing in each community. As at this time writings

was unknown to them and the disposition of property at death was done orally and

where there was no oral disposition the deceaseds property devolved according to

customary rules of inheritance. Then customary law recognized testamentary

freedom where by a testator disposes of alienable property according to his whishes

although orally. Thus oral disposition were usually made in expectation of imminent

death. They are required to be made in the presence of witnesses not be

beneficiaries under the disposition.

Each society had its own customary law of succession which regulated the

devolution of estate in those societies.

In Northern Nigeria, where the majorities are Muslims, successions or devolution of

properties is regulated by the Islamic law of succession. In the case of Yinusa v.

Adesubokan,20 Bello J. (as he then was) held that the testator as a Muslim have

20

(1970), unreported SC25/70 of 17/670; 111 144.

34

capacity to make Will but held further that in so doing, it must be subject to Islamic

law of succession he can devise one third of his estate and the other third by Islamic

heirs and beneficiaries.

Further under the Islamic law, the right of succession is set in the Holy Quran and is

to the net estate of the intestate often the payment of funeral expenses, debts,

legacies, and other charges. Most often, the male children must have equal share

and the daughters half share each and a child may be disinherited of his legal share

he is not a Muslim or if he kill his parents with the intension of inheriting their

properties.

Under the Maliki School, a testator may dispense part of his estate by Will, one third

to persons; other than those who would ordinary be his heirs the remaining two

third devolve in strict compliance with the Islam law of succession.

In the Igbo society, the customary law of succession is govern principally by the

principle of primogeniture, that is the eldest son succeeds to his fathers estate and

has the property in trust for and on behalf of other children. The wife of the

deceased has no right to succession into her husbands estate. NEZIANYA v.

35

OKAGBUE.21 The supreme court held that in accordance with Onitsha customary law,

the widow cannot succeed to her late husbands estate where the deceased dies

without a made child his real property devolve on his family.

Under the Binni customary law of succession, the principle of primogeniture reign

supreme. On the death of the testator the eldest surviving son succeeds to his estate

OGIAMENT v. OGIAMEN.22. The Supreme Court expressed the view that there was

nothing wrong with this custom which is not unknown in some other highly civilized

countries of the word.

Under the Yoruba system, the property, the property left behind by the deceased

will devolve either through the Ori-ojori or the Idi-Igi system. Under the Ori-ojori

system, devolution is per capital i.e. it is traced through the number of children one

has. While under the Idi-Igi system devolution is per stripes i.e through the number

of wives.

Under the customary law of succession, before a wish or devolution is given validity,

the testator must possess full mental capacity at the time the Will was made. The

21

(1963) 1 AllNLR 352 22

(1967) NMLR 247

36

property must sufficiently identified It must not be community or family property

OKELOLA v. BOYEES.23

In the Yoruba society, a man may bequeath his estate the way he feels, however, the children are entitled to his real property to the exclusion of other blood relation. They share equally irrespective of sex and age.

Finally; before the coming of colonial rule it is clear from the above that there was a

standardized form of devolution of the properties in the Nigeria societies.

2.3.2 Colonial Era

The creation of the colony of Lagos in 1862 marked the beginning of introduction

into what later becomes Nigeria of English law, after the amalgamation of various

colonies by legislation, the common law of England and the doctrine equity and the

statute of general application in force in England on the first day of January 1900,

was extended to the country. These laws referred to as the receive English law.

One of the statutes of general application in Nigeria was the Wills Act 1837. The Act

provides for the disposition of property, provided the formalities as spelt out in the

Act are complied with. Section 3 Will Act 183724 state

23

(1998) 5. N.W.L.R. (pt119) 46

37

It should be lawful for every person to device bequeath or dispose off his Will executed in manner hereafter require, all real and are personal estate which he shall be entitled to either at law or kin equity at time of his death.

Subsequently, the Will Act 1837 was amended by the Wills amended Act 1852 by.

S.9. of the 1852 Wills Act cured the hardship caused by the provisions in the 1937.25

Act that a Will or codicil must be signed at its foot by the testator. Thus, the Wills Act

1837 still holds sway in estates that have their Wills Act of 1837 with modifications

and allegations. Western Region of Nigerian was one of the first to re-enact the Wills

Act of 1837 as the Wills law of 1958.26 Some of the provision it took into account was

the customary. Laws of inheritance. S.3ci)27 Will law (supra) provides that a testator

cannot dispose property that is subject to native law and custom.

Unlike Wills under customary law which are oral and under Islamic law, which may

be oral or written, Wills under English law must be in writing. These are other

formalities stipulated in the Wills law that must be complied with for a Will to the

24

Wills Act, 1837 25

Wills Act, 1837 26

Wills law of 1958 27

Wills law of Bended state, 1978.

38

valid. APATIRA AND ANOTHER v. AKANDE AND OTHER28, The testator a Muslim made

a written Will which was signed by M and his signature was acknowledged in the

presence of one witness in an action for declaration of the validity of the Will failed

because of failure to comply with the Wills Act 1837 which requires testators to sign

the Will in the presence of two witnesses present at the sometime, its considered

view however that Will in the customary law of succession precludes as testator

from making a written Will.

2.3.3. Post-Colonial Era

In Nigeria; these different systems of law operate side by side. The consequence of

this legal pluralism is the complex interplay between common law, statutes and

customary law, which is some cases, had resulted in serious conflict of law issues

domestically. Although, the effect of the legal pluralism is noticeable indifferent

aspects of our law, it is however more evidently noticeable with regard to Will. In

this regard, most times it is difficult to determine which of the three systems of laws

is to be applied in a certain situation.

28

(1944) 7. NNLR 149

39

This explains why the English common law applies till this day in Nigeria, with some

substantial modification by statutes

Nigeria has had its own peculiar experience and circumstances, which have

influenced its legal development. The laws governing succession in Nigeria can be

divided into two broad categories namely testate and intestate and intestate

succession. This classification can be further divided into intestate succession (Non-

customary) and succession under customary law.

As the name implies, testate succession consists primarily of Wills. I Nigeria in no

uniformly of applicable laws relating will. Consequently, among the states that were

created out of former western region.29 The applicable law is the Wills law.30 By

virtue of the provision of the Applicable laws Edict of 197231 Lagos state adopted the

Western Nigerian Law. On the other hand, the rest of the country32 consisting of the

of the states from Northern and the Eastern part, still applies the English Wills Act

1837 and the Wills Amendment Act 185233.

29

Oyo, Ondo, Ogun, Osun, Ekiti, Edo and Delta States. 30

Cap 133, laws of Western Nigeria 1959. 31

Noll of 1972 32

With the exception of some few states that have enacted their own Wills Laws in line the laws of Western Nig. 1959 33

This statute qualifies as statute of general application is Nigeria.

40

A critical analysis of the provision of the Wills Law shows that the legislation basically

re-enacted the provisions of the Wills Act 1837 and the Wills Amendment Act 1852

together with the provision of the Wills (Soldiers and Sailor) Act 1918, but with

inclusion of some provisions that took into consideration the prevailing customary

laws principles that regular succession under customary law in the affected state. For

examples, section 3 (1) of the Wills law of Bendel state, provides that real and

personal estate, which cannot be affected by testamentary disposition under

customary law, cannot be disposed of by Will.34 Also, section 15 of the Will law of

Bendel state provides that every will made by a man or woman. Shall be revoked. By

his/her subsequent marriage. However, the Wills Law exempt a marriage in

accordance with customary law from having this effect.

Finally; in determining what system of law governs a will, the courts place much

importance on the intention of the testator. Thus in APATIRA v. AKANDE,35 The fact

that the testator devised all his property as against one-third as prescribed in Islamic

law, was a major factor in the courts determination that English law govern, for this

34

Idehen v. Idehen (1991) 6 NWLRP. 259 and lawal-Osula v. Lawal Osula (1995) 9 NWLR. (pt.419) p. 259 where the supreme court. Discussed extensively the legal implication of the provisions of section 3 (1)s of the Will law of Bendenl state applicable to Edo state 35

(1944) 17 NLR 149

41

was a clear indication of the intention of the testator. Also in NWABUOKssU v.

OTTIH.36

The Supreme Court held that if a written document is only intended as evidence of

an agreement which had already been concluded in accordance with customary law;

such a document will not be governed by English law. However, it is clear from

judicial decision that a written will raises an almost irrefutable presumption that

English law is to be applied.37

It is necessary to examine the laws that govern Wills in Nigeria

a) The Wills Act of 1837 and Wills (Amendment) Act 1852: these are clearly

statutes of general application which were in force in England on January 1st

1900. They therefore part of Nigerias law of Wills.

b) The Wills law of various state: Most state of the federation have re-enacted

the received Will Act of 1837 with modifications and alteration. Example of

such state are Kaduna state Wills law cap 163 laws of Kaduna 1991, Will law

Lagos states cap 194 laws of the Lagos state 1994.

36

(1961) I AII NLR 487. 37

Saga, I.C; Op. cit 125

42

c) High court (civil procedure) rules of various states of the Federation which are

civil rules of state High court governing procedures of the Wills Act 1837 and.

The law of various of the Federation constitutes a source of Wills law.

d) Customary law and Islamic law are also sources of Nigerian Wills law.

2.4 The Kaduna State Wills Law

Since Kaduna State has enacted its own Wills Law, The Wills Act (1837) is no longer

applicable.

The Kaduna state Will law restricts the testamentary freedom of a testator in four

major ways. First, the testator cannot dispose of any property which he had no

power to dispose of by Will under customary and Islamic Law (section 4 (i)). Second,

he must have made reasonable financial provisions for his family and dependants,

failure of which they can apply to the court for an order (section 5 (1)). Third, a

marriage under the marriage Act automatically revokes Wills made before then

unless the Will was made in contemplation of the celebration of that marriage

(section 14).

Finally, a testator cannot make valid bequests to attesting witnesses or their spouses

(section 11. ROSS v. COUNTESS. It is apparent that the provisions of the Kaduna Will

43

law brought the provision of the Wills Act to be more in tune with Islamic law of

testate succession as far as testamentary freedom is concerned. In fact, even though

it is a statutory and superior law, kit subjects itself too Islamic law of testate

succession in its section 4 and goes further to enact the spirit of Islamic law intestate

succession in section 5. This it did by codifying the need for the testator to make

provisions for those near-related38, also small Wood, small Wood v. st martins

Bank Ltd.39 This is quite commendable.

According to Obilade (1985), Onokha (2005), and Made ct al. (2000), testate

successions in Nigeria in governed by both customary (Including Islamic) law and

statutory (English) law. The Islamic law of succession and the Wills law are two

bodies of laws, which have evolved from radically different backgrounds. Islamic law

of succession is based on the divine and universal principles of the Sharia, which

govern Muslims all over the world (coulson 1971, Schacht 1979, Esposito 1991, and

orire 2007)40. The Wills law evolved from the English Will Act, 1837, which is a

statute of Christian religion (Imhano be 2002,41 Maliki 2005,42 Gurin 200843)

38

Gurin A.M (2008). An Introduction of Islamic law of Succession Testate /Intestate Zaria: Jodda press Ltd 39

(1951) CH 369 40

Esposito J.L (1991) Islam: the Straight path. Oxford: Oxford University press 41

Imhanobe S.D (2002). Legal Drafting and Conveyance. Abuja: Secure Titles Publisher

44

For Instance, in Kaduna State where two radically different laws operate side by side

and citizen are given the freedom to choose under which one they want their lives to

be regulated (expressly or Impliedly) it is minevitable that situations of conflict of

interpretation Will arise in applying the laws (Obilade, 1985, Ikejjiani-clarke, 2009,

and balogun, 2011). The two laws may be compared at six levels viz: validity of Wills

testamentary intention and capacity, limits to testamentary freedom, alteration and

revocation of Wills, laps of gift, and conflict between the laws.

Regarding validity, section 7 of the Kaduna State Wills law categorically states that

for a Will to be valid, it must be in writing, it must be signed by the testator, in the

presence of two or more witness and the witness must attests and subscribe the Will

in the presence of the testator, the object of the section according to Gurin (2008) is

clearly to prevent fraud. It must be stressed, however, that applies only to Wills

made in accordance with English law. A will executed according to Islamic law need

not comply with the provision above.

Finally; Wills as it today under the Kaduna State was unknown and completely

absent However, there have always been semblance of Will, although nuncupative.

42

Maliki A.S (2005). A Comparative Appraisal of Islamic and Statutory Laws on the Devolution of Property after Death Zaria. An Unpublished L.L.B. submitted to the faculty of Law, Ahmadu Bello University, Zaria. 43

Gurin A.M. (2008). An Introduction to Islamic Law of Succession: Zaria: Jodda Press Ltd.

45

The devolution of estate by Will is a principle recognized by our customary law. It

was an oral declaration made voluntarily by the testator during his life time. It was a

common incidence of Death-Bed Declaration such declaration which are normally

viva-voce was made was made by aged, person in their dying moment, while frail

sick and assured of death, insist on seeing selected groups of person most often

family members or close friend whereby they make a few disclosure concerning life,

wealth, obligation, which as burial rite. To ensure these wishes are effected curse is

placed upon disobedience by deviant. That such wishes are not reduced into writing

let alone duly executed such declarations have the force of a Will.

2.5 LEGAL TERMINOLOGIES IN A WILL

There are certain legal terminologies that are commonly used in a will. Some of them

have featured already, at the course of our discourse. They include the following:

1. Testator. One who makes or has made a testament or will; one who dies

leaving a will. Usually, it applies when a man makes a will."

2. Testatrix. A woman who makes a will; a woman who died leaving a will; a

female testator in short."

46

3. Executor. A man appointed by the testator to carry out the directions and

requests in his will, and to dispose of the property according to his testament

provisions after his death."

4. Executrix. A woman appointed by the testator to administer his Estate upon

his death. A female Executor."

5. Beneficiary. One who derives benefits under a will. In him resides the

equitable interest in devised property. Legatee, that is.

6. Trustee. One in whom an estate, interest, or power is vested, under an

express or implied agreement to administer or exercise it for the benefits or

to the use of another. One who holds the legal title to property "in trust" for

the benefit of another person called the beneficiary and who must carry out

specific duties with regard to the property".

7. Estate. The total of assets and liabilities of the testator including all manners

of property, real and personal, Choate or inchoate, corporeal or incorporeal."

8. Legacy. Is a gift by will of personal property.

9. Legal representative. A person who oversees the legal affairs of another. It is

always held to be synonymous with "personal representative". It includes the

47

executor or administrator of an estate and a court appointed guardian of a

minor or an incompetent person."

10. Administrator (trix). A person appointed by the court to administer - manage

or take charge of the assets and liabilities of a deceased person. Such a person

may be a male (in which case he is called administrator) or a female

(administratrtx)".

48

CHAPTER THREE

FORMAL REQUIREMENT OF VALID WILL

3.1 Introduction

A will is only valid if it meets the requirements set out in the Wills legislation in the

province or territory in which the testator lives. Generally, the formalities include

dating the Will and having (The testator) sign in the presence of two witnesses,

who should not be beneficiaries under the Will. The witnesses must also sign the

document in the presence of the Testator and each other.

Insistence on strict compliance with formal requirements of a will arises from the

need to safeguard the will against fraud. The formal validity of a will is with regard to

immovables governed by the lex situs and the case of movables governed by the law

of the domicile of the testator at the time of his death.1

3.2 FORMAL REQIUREMENTS OF A VALID WILL UNDER WILLS ACT 1837

Section 9 of the Wills Act 1837 states that a Will must be in writing

No Will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned; (that is to

1 Sagay I.E; Nigerian law of succession, Principle case, statutes and commentaries; Mathuse press Ltd (Nig)

Lagos, (2008) p. 132.

49

say) it shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction; and such signature shall be made or acknowledged by the testator in the presence of two or more witness present at the same time, and such witnesses, but no form of attest and shall subscribe the Will in the presence of the testator, but no form of attestation shall be necessary.2

It means that any Will which is not in writing is invalid. These are exceptions to this

rule. It would appear that members of the force in Actual military service and

mariners at sea need not comply with the requirement writing.

It would seem also that Wills emanating from all the states constituting the old

western region need not be in writing by virtue of section 9(2) of the Wills law 1958

of western region. However, since the Armed forces and perhaps, marine matters

are with the exclusive list, if would seem that the Wills of Armed forces personal

must be in writing. Section 27(1) of the Armed forces Act, 2004 states

A Will made by a person subject to law under the Decree shall be valid for disposing of any money or personal property which is due or belongs to him at his demise if it is in writing.

2 Wills Act, 1837.

50

There is a conflict in Nigeria In the application of the law that certain Wills do not

have to comply with the requirement of writing. The English Wills Act 1837 Will

apply to the state that do not have their own Wills laws, Lagos, Oyo, and other State,

forming part of the old western region, do not require the Wills of member of the

Armed forces in Actual military service and mariners at sea to be in writing, and yet,

the provision of the constitution3 appears superior. The implication in Nigeria

therefore appears to be that Wills of members of the Armed forces in Actual military

service and mariners at sea must be in writing.4 Writing in context of a Will has been

construed to be any type of writing or print. A Will may be writing on any materials;

it may be type, printed or lithographed, and according to a learned author, either in

whole or in part,5 typed or printed parts of a Will may be completed or

complemented with ordinary writing,6 either in into or pencil.7 For instance in

England standard Wills in printed form can be purchased from the stationers and the

testator may fill the blank spaces according to his wishes. The writing or printing

need not be continuous as may be observed from preprinted Wills.

3 199 constitution of the federal Republic of Nigeria.

4 Animagham and Oyeneyin: Law of Succession, Wills and probate.

5 Williams on Wills 9

th Edition (2008) at p.75.

6 Smithers, Re Watts v. Smithers (1939) ch. 1015 at pg. 1020.

7 In the Goods of Adams (1872) L.R.2 po and D 367.

51

The Wills Act 1837 is an Act of the parliament of the United Kingdom that confirms

the power of every adult to dispose of their real and personal property, whether

they are the outright owner or a beneficiary under a trust, by will on their death.8

The Act extends to all testamentary dispositions or gifts, where a person makers a

disposition of his property to take effect after his death, and which is in its own

nature ambulatory and revocable during his life.9

Under ecclesiastical law, common law and equity, various customary rules have long

existed for disposing of personal property by Will. However, the power to gift real

property by Will had been first granted by the Statute of Wills (1540). Various rules

sprang from the formalities necessary to create a valid will and the statute of frauds

(1677) created the requirement that a will of real ,property must be in writing.10 By

the early nineteenth century, the rules had become complex, with different rules for

formalizing wills of real and personal property. The 4th report of the commissioners

for inquiring into the Law of Real property recommended a simplified and unified

scheme. As the commissioners for observed Any scrap of paper, or memorandum in

ink or in pencil, mentioning an intended disposition disposition of his property, is 8 S.3 of Wills Act, 1837.

9 Jarman, T. (1844). London: A treatise on Wills, Sweet, (Google Books) Vol. 1, p.26

10 Mirow, M.C. (1994) Last Wills and testaments in England 1500-1800. In Vander indent, J. (ed.) Acts (a)

cause de mort: Acts of tast Will, Brussels: De Buek Universite; pp 47-88

52

admitted as a Will and will be valid, although written by another person, and not real

over to the testator, or even seen by him, if proved to be made in his lifetime

according to his instructions A bill was introduced by the Attorney General sir John

Comphell, one of the commissioners, in 1834 though it was delayed for want of

parliamentary time11. The bill was introduced in the House of Lords by Lord

Langdate.12 Though the requirement that a will be in writing stems from an attempt

to frustrate fraud, an apparent exception to the requirements for the formal

execution of the Act under section 9 of Wills Act, 1837, is a secret trust.13

A minor, a person under the age of 18, cannot make a valid will14 unless they are a

member of the armed forces on active service or a mariner at sea.15 These provisions

were clarified by the Wills (soldiers and Sailors) Act 1918. There is no requirement to

publish a will.16 If any of the witness was, or subsequently becomes, incapable of

11

The times, march 12, 1836 p. 4, C01F. 12

The times, march 12, 1835, p. 3, C01D 13

Wilde, D. (199). Secret and semi-secret trusts: justifying distinctions between the two conveyance and property Lawyer: sep-Oct, 366-378. 14

section 7 of Wills Act, 1837, 15

section 11 of Wills Act, 1837. 16

S.13 of Will Act 1837.

53

proving the will, that alone will not make it invalid.17 Alterations must be executed

in the same manner as a will.18

3.3 Formalities of making a will under the Kaduna State Will Law

It is this writers view that, there are too many formalities involved in making a will

under the Kaduna State Wills Law 1990. Apparently, the Government seeks to

encourage citizens to make such Wills with much certainty. If this is the case, then

the law should be reviewed to loosen the formalities involved.

Although you can make a Will by himself, it is advisable to seek help from a solicitor.

This Will save time and legal costs should it be necessary to prove, after ones death,

the intention and mental capacity at the time the will was prepared and signed the

Will. A well-drafted Will can also minimize potential disputes among family members

and inheritors.

In order to prepare a valid Will enforceable under the Kaduna State Wills Law, the

following formalities must be observed

17

S. 14, Ibid. 18

S 21, Ibid.

54