Prerequisites Of A Valid Will

Summary
5.0 Conclusion
From the foregoing, it can be deduced that a Will is a testamentary document enforceable, protected and binding at law. Generally, a WILL must be in writing and must be executed in a mode prescribed by state statute. In some limited instances, an oral Will may be valid depending on state law. Although the language of a Will is largely immaterial, a valid disposition of property requires certainty as to the property and the individuals or entity receiving the property. No prescribed form is required for a Will and it is not essential for the validity of the Will for the Will to dispose of all of the testator’s estate or name an executor.

Additionally, one must be at least 18 (eighteen) years old to make a Will and have testamentary capacity. For adults, mental capacity to execute a Will is determined at the time of the execution of the Will. Generally, a testator is held to have capacity to make a Will if the testator understands the nature of the business in which he or she is engaged, has a recollection of the property which is intended to be disposed of, the objects of the testator’s bounty (family members) and the manner in which he or she wishes to distribute it.

Testamentary capacity generally means that the testator knows certain things at the time he or she executes the Will. Basically, a testator is deemed to have capacity to make a valid Will if the testator:

1. Understands that he or she is executing a Will;
2. Is capable of recalling the property which he or she intends to dispose of;
3. Is capable of recalling the objects of his or her bounty (heir, family members, etc) and;
4. knows the manner in which he or she wishes to distribute the property among those persons.

Old age, by itself, does not make the testator ineligible to make a Will. Likewise, eccentric behaviour or character or illness or emotional distress does not necessarily render the testator incapable of making a Will. It is possible for a person to be very ill but nevertheless remain alert, stable and capable of giving natural instructions and advice.1 Even if a person has been adjudged insane, he or she may still be capable of making a Will if he or she has testamentary capacity at the time the Will is executed.

Additionally, a testator must also have testamentary intent. Testamentary intent means that the testator must intend that the paper he or she is signing be a Will.

However, even when all the ingredients which go to make a valid Will are present, it may nevertheless turn out to be invalid, voidable or unenforceable as a result of the presence of undue influence. The doctrine of undue influence extends not only to cases of coercion or tricks of fraud but to all cases where influence is acquired or abused where confidence is reposed and betrayed.

For a Will to be valid, the testator must have made the Will of their own volition and it must reflect their desires for the disposition of their property. If an influence was sufficient to destroy the free agency of the testator, the Will may be challenged and subsequently set aside.

Finally, a Will must be in writing and signed by the testator or by some other person in his presence and by his direction and the Will should be signed and acknowledged by him or her in the presence of at least two competent witnesses. These two witnesses shall sign the Will in the presence of the testator and each other.

It is worthy to note at this point that a competent witness is a person who, at the time of making the attestation, was qualified to testify in court to facts to which he attests by subscribing his name to the Will. Although some states or countries may allow a beneficiary or other interested party to be a witness on the Will, the better practice is to use two independent witnesses.

5.1 Recommendation

From the fore-going, we cannot but underline the fact that if a Nigerian testator wants his Will to be effective to pass his property, whether by the general law or the customary law of inheritance, he must comply with all the requirements of the formal validity of a Will under the general law. The conception of making Wills is foreign to the indigenous system which knew no writing, and it is only reasonable that any attempt to adopt the Will form in order to confirm or vary the Customary Order of succession should satisfy the requirements of the Wills Act. Thus in Apatira & Anor V. Akande & Ors2 a Moslem made a Will in English form but with respect to signature and attestation, the Will did not comply with the requirements of the Wills Act 1837 and 1852. The two attesting witness of the Will signed it on two different dates after the testator had already executed and signed the self-made Will. The testator thus could not be said to have signed or acknowledged “his signature in the presence of two witnesses both being present at the same time” according to the requirements of the Will Act. The deceased in this case had however satisfied the requirements of the Islamic law in this respect. On these facts, the supreme court held that the fact that the deceased was a Nigerian and a Moslem could not make any difference to the necessity of complying with the requirements of the Will Act. But where a Moslem has made a Will in proper form as in George V. Administrator-General3 and Ayoola & Ors V. Folawiyo & Ors4 there is nothing to prevent Customary law or as Dr. Elias said “any other code of Islamic law from applying to govern the devolution of the estate”.

Another condition of validity to a Will is that the testator must have capacity. If the testator lacks capacity as prescribed by law, the Will becomes invalid and all interests it purports to confer fail. Once incapacity is proved to the satisfaction of the court, the Will fails. Thus, the person engaged professionally to prepare the Will has the responsibility and duty to ensure therefore that the Will is valid in the sense that the testator has the necessary capacity. If he observed that there are suspicions which tend to indicate lack of capacity, he must make direct enquires to ascertain whether in fact there is capacity. Such suspicion can be raised in an old senile testator or one who suffers from bodily ailments which may affect his mind. It will not be out of place to address capacity where the testator has a complicated family history because a dissatisfied dependant may go to any length to fault the Will on various grounds including lack of capacity.

The legal practitioner engaged in the preparation of the Will is duty bound to ensure that the Will is not frivolously or maliciously faulted for lack of capacity. Knowing when the law requires that the testator must possess the necessary capacity, he in turn must advise the testator accordingly and put in place devices which may tend to support capacity.

Lastly, where a Will is made without the volition of the testator, he has the right to rescission. A transaction conducted under undue influence is voidable at the instance of the party raising it. It is an equitable jurisdiction that the court exercises to rescind such unconscionable transaction. It follows therefore that reasonable steps must be taken to avoid a transaction founded on undue influence in order not to be caught by laches and acquiescence.