The WILLS ACT 1837 defines a valid Will as "a testamentary document voluntarily made and executed to law by a testator of sound mind, where he disposes his properties (real or personal) to beneficiaries to take effect after his death". A Will is generally the last wishes or instructions of a deceased person in writing. By Nigerian law, when a person dies without having a Will, the person is said to have died intestate. However, when a person writes a Will, he/she is said to have died testate. There are various legislations guiding the making of Wills in Nigeria.

The making and execution of Wills in Nigeria are guided by several key pieces of legislation. The Wills Act of 1837 sets the foundation by defining a valid Will as a document voluntarily made by a person of sound mind, distributing their assets to take effect after death. The Wills Laws of various states adapt these principles locally, addressing requirements such as age and procedure. The Administration of Estate Laws of various states govern the management and distribution of estates, whether testate or intestate. The High Court (Civil Procedure) Rules of various states ensure proper filing and probate procedures, while the Evidence Act outlines admissible proof for validating or contesting Wills in court. Collectively, these laws uphold the integrity of testamentary wishes and estate administration in Nigeria.

WHO CAN WRITE A WILL IN NIGERIA?

Every Nigerian, irrespective of your gender, tribe, or religion, can and should make a will. Whenever you advise an average Nigerian about writing a Will, the first thing that comes to their mind is whether you are predicting or wishing them dead. This is an archaic notion and does not fit into the present-day reality.

The Wills Act stipulates that a valid Will can only be made by a person who is above 18 (Eighteen) years of age. So, an underage person cannot make a Will, except if he is a seaman, mariner, or part of a crew of a commercial airline. The hazardous nature of their jobs makes the law envisage that there is a higher chance of exposure to deadly accidents in the course of their duty. Therefore, the law allows them to make a valid Will even though they are less than the statutory age.

CAN A WOMAN WRITE A WILL IN NIGERIA?

In Nigeria, the notion that women do not and cannot write wills persists in many communities. Cultural and societal norms often suggest that a woman’s assets automatically belong to her husband, children, or extended family. But these assumptions can lead to conflicts, leaving women and their loved ones vulnerable in times of loss or uncertainty. Contrary to popular belief, women, married or single, with or without children, can and should make Wills because women in Nigeria have equal legal rights to own, control and distribute property. Making a Will asserts this right in practice. Despite the benefits of making a Will, many women in Nigeria hesitate to draft Wills because traditional beliefs often discourage women from discussing death or property ownership. Some women fear being labeled as overly ambitious or "inviting bad luck." Many women, especially in rural areas, are unaware of their legal rights or the importance of estate planning. Some women believe that only wealthy individuals need Wills or that their property automatically passes to their children.

CAN A HUSBAND AND WIFE HAVE A SEPARATE WILL?

In almost all circumstances, a married couple should have two separate wills. There is the option of a “joint will” but in practice these are very rare.

Most people go for a mirror will, which is a type of will created by a couple (married or unmarried), where both wills are nearly identical, with the primary goal of ensuring that the surviving partner inherits the deceased partner's estate and then specifies secondary beneficiaries (often children) upon the second partner's death.

A joint Will is a single document signed by both spouses, expressing their shared intentions. However, joint wills can be restrictive, as they cannot easily be altered after one partner passes away. Any amendment to a joint will during both partners’ lifetimes requires the consent of both parties, and following the death of one spouse, the surviving partner is typically unable to make any changes.

THE PROCEDURE AND REQUIREMENTS FOR MAKING A VALID WILL

The creation of a valid Will is guided by specific legal requirements to ensure its enforceability and to prevent future disputes. Firstly, a Will must be documented in writing. Oral declarations or informal arrangements are not recognized in law, and only a properly written document carries legal weight.

The process must also be entirely voluntary. The testator — the person making the Will — must act without coercion, fraud, undue influence, or duress. The document should reflect the genuine intentions of the testator, free from external pressure.

In terms of age, the testator must have attained the legal threshold to make a Will. While the Wills Act prescribes a minimum age of 21, most states in Nigeria now recognize 18 years as the legal age for executing a Will. In addition to age, mental capacity is equally crucial. The testator must possess a sound and disposing mind, demonstrating clear understanding and memory at the time the Will is made. Any suggestion of infirmity, mental instability, or undue influence can render the Will invalid.

Proper execution is another essential requirement. The Will must be signed by the testator or by another person acting under the testator’s direction and in their presence. Following this, the document must be attested by at least two witnesses, who must sign the Will in the testator’s presence and in each other's presence as well. Importantly, witnesses must not be beneficiaries under the Will. Any gift made to a witness will be considered void, with the exception of gifts made to a spouse, although even this is generally discouraged to avoid conflicts of interest and to maintain confidentiality.

The Will should also name executors who will be responsible for administering the estate. Executors must be adults of at least 18 years of age and can also be beneficiaries. It is standard practice to appoint at least two executors to ensure proper handling of the estate.

Finally, for the Will to take effect, it should be lodged at the probate registry of the state’s High Court either before or upon the death of the testator. This lodgment is part of the formal process that gives the Will legal recognition. It is also important to note that Wills made under customary law and Islamic law follow separate systems, distinct from statutory provisions, and these should be observed within their respective frameworks. 

BENEFITS OF MAKING A VALID WILL IN NIGERIA

The advantages of making a Will cannot be overstated. One of the key benefits is the avoidance of the time-consuming and costly process of obtaining Letters of Administration. Without a Will, the family of the deceased often faces lengthy delays and bureaucratic hurdles when trying to administer the estate. This process can lead to the devaluation of the estate as assets are tied up while waiting for the necessary legal grants. In contrast, a valid Will ensures that the estate can be administered more swiftly and with less expense.

Another important benefit is the prevention of endless legal disputes. In Nigeria, especially within polygamous families, it is common for disagreements to arise among surviving children and relatives over the distribution of property. When a Testator has made a valid Will, the courts are less likely to overturn it, allowing the Testator's wishes to be respected. This significantly reduces the occurrence of unnecessary litigation and ensures a more peaceful settlement of the estate. However, even with a Will in place, challenges can still arise. 

A recent example is the ongoing controversy surrounding the estate of the late Herbert Wigwe, former CEO of Access Bank, who tragically passed away in a helicopter crash. Despite having a Will, reports have emerged of family members questioning its validity and the decisions made therein. This highlights that while a Will is essential, the clarity, legality, and proper execution of the document are equally important to prevent future disputes.

A Will also serves as a protective measure for underage children and dependents. It safeguards their rights and prevents relatives or other individuals from unlawfully taking possession of assets meant for them. Through a Will, a Testator can ensure that all dependents, regardless of their relationship or social status, are adequately provided for.

In addition, making a Will allows individuals to avoid having their properties distributed according to customary law, which may be outdated or discriminatory. In some traditions, female children and wives are excluded from inheritance. Writing a Will enables individuals to bypass these customs and ensure that their assets are shared according to their personal wishes and modern principles of fairness.

A Will also gives the Testator full control over how their assets will be distributed. Beyond property, it allows for the consideration of specific matters, such as the future management of businesses. For instance, a Testator can determine who will become directors of a company after their death and how shares will be transferred.

The ability to appoint executors is another significant benefit of writing a Will. A Testator can select trusted individuals who will be responsible for administering the estate and ensuring that their wishes are carried out faithfully and efficiently.

Finally, a Will can address other incidental matters, including the appointment of guardians for young children or wards. This ensures their welfare and upbringing are handled according to the Testator’s intentions. Additionally, a Will can include specific funeral arrangements, allowing the Testator to have a say in how they are laid to rest.

CONCLUSION

Every Nigerian adult should have a will to ensure their assets are distributed according to their wishes, protect loved ones, and minimize legal complications after their passing, rather than relying on potentially contested customary or intestate laws. It is easy to write a will. Unless you do not have a large or particularly complex estate or contentious family dynamics, then you need expert advice from a lawyer.  Making a Will does not mean that a person will die soon. It only ensures that upon a person’s demise, the properties of the person will be shared in accordance with the person’s wishes amongst the person’s beneficiaries.

 Written by: Ozordi John-Paul