This article was originally written by the LawPàdí team and first appeared here.
Ask the average Nigerian about writing a will, and they will most likely get upset and accuse you of having negative thoughts towards them. This is the case in a lot of societies were thinking of making a will forces people to think about their own mortality and the inevitability of death.
This should not be the case. Writing a will is not only about planning for your death, but it is also about ensuring that your loved ones are adequately protected. It is in fact one of the most critical things that you can do for your loved ones. Putting your wishes in the form of a will helps your heirs avoid unnecessary hassles, and you gain the peace of mind knowing that a life’s worth of possessions will end up in the right hands.
WHAT IS A WILL IN NIGERIA?
A will is simply a legal document in which an individual known as the testator, declares how he/she would like his assets to be distributed when he/she dies. The individuals designated to receive any of the property of a testator is called a “beneficiary.”
Apart from deciding who gets your assets, a will can also serve to declare who you wish to become the guardian for any minor children or dependents.
WHAT IS COVERED IN A WILL?
Some types of property, including certain insurance policies and retirement accounts, generally aren’t covered by wills. This is because when an individual takes out these insurance policies or opened an account, part of the process is to list the beneficiaries of the account. The most important things to provide for when writing a will are who will be your executors, who will be the beneficiaries of your assets, and in cases where there are minors — who the guardian(s) of the minors will be.
CAN A WILL BE ADJUSTED AFTER IT IS MADE?
Yes, this can be done by either making a new will or by adding a “codicil” (an amendment) to the will.
WHAT HAPPENS IF A PERSON DIES WITHOUT A WILL?
If an individual should die without leaving a valid will, he/she has died intestate. That usually means that the individual’s estate will be settled based on the Administration of Estate Laws of the state of domicile of the individual. These laws determine who inherits what.
When an individual dies and has left a will, the process to administer the deceased estate is known as obtaining probate. By this probate, the court grants the executor(s) who have been appointed under the will, the right to administer the estate of the deceased. In the case of a death without a will, since there is no executor named, a judge appoints an administrator to serve in that capacity. An administrator also will be named if a will is deemed to be invalid. The administrator will exercise the powers over the estate in accordance with the Administration of Estate Law of the State.
WHAT MAKES A WILL VALID?
Generally, a will is not valid unless it fulfils the following requirements.
1. The will must be in writing
2. The individual writing the Will must be of legal age i.e. he/she must be at least 18 years old.
3. The individual must have what is known as testamentary capacity i.e. they have a sound mind, meaning the testator must know that he or she is making a Will and its effect; understand the nature and extent of the estate, and understand that he or she is disposing of property and assets.
4. The will must be signed by the testator and must be attested (witnessed) and signed by the witnesses.
5. The will must also have been made by a person who knew and approved of its contents and who was acting of their own free will.
Please note however that there are some exemptions for people who are members of the Armed Forces or sailors at sea, specifically they do not have to be 18 years of age, and making a will in certain circumstances does not have to be in writing.
Also note that witnesses cannot be beneficiaries under the will, and nor can the spouse or partner of a witness.
WHO IS AN EXECUTOR AND WHAT ROLE DOES HE/SHE PERFORM?
An executor is an individual appointed under a valid will with the responsibility of making sure a person’s wishes under the will are carried out. The executor of a will is responsible for making sure that any debts and creditors that the deceased had are paid off, and that any remaining money or property is distributed according to their wishes.
The executor is expected to fulfil their duties with the utmost honesty and diligence and is under what is known as a fiduciary duty which is a duty to act in good faith.
An individual can name their spouse, an adult child, or another trusted friend or relative as an executor. If the affairs are complicated, it is more prudent to name a lawyer or someone with legal and financial expertise as an executor. Executors are generally named joint executors, this is in case one of the executors is unable or unwilling to act as an executor.
WHERE SHOULD I KEEP MY WILL?
For an executor to obtain probate, the courts will require an original copy of the will, and therefore it is imperative that the document is kept safe. This can be done by keeping a copy with the courts, with a lawyer, in a bank safety deposit box, or in a waterproof and fireproof safe in your house. Wherever an individual decides to keep his/her will, please note that it should be somewhere that the executor knows where it is and can easily access it upon the death of the individual.
CAN A WILL BE CONTESTED?
A will can be contested for any number of other reasons, but they all revolve around the validity of the will, for instance, if it wasn’t properly witnessed; or the individual wasn’t competent when the will was signed, or it’s the result of coercion or fraud.
Are you considering making a will? We advise that you should seek the services of a lawyer who will be able to assist you in drafting your will.