WILLS

Question 1

What is the best way to ensure that the testator’s funeral directives are met?

Answer 1

Funeral directives therefore should be in separate documents or letter enclosed in an envelope and kept with a younger relative of the testator and produce it when the time due.
This is due to the fact that grant to the executors is not done immediately(expiration of 14 days in Lagos & 7 in ABJ)

Question 2

What do you mean by saying a will is ambulatory?

Answer 2

It is changeable during the lifetime of the testator.

Question 3

What are the Features of a Will?

Answer 3

1. it is testamentary-Speaks after the death of the testator
2. It is ambulatory
3. It must be in writing
4. The testator must have testamentary capacity
5. It must be made voluntary(testamentary freedom)
6. It must dispose of a gift to be valid.

Question 4

Functions of codicil?

Answer 4

1. it can revoke a will
2. it can revive a will
3. it can republish a will
4. it can alter/add a will

It cannot exist independent of a will.

Question 5

Applicable laws in Wills?

Answer 5

1. Wills Act 1837
2. Wills Laws of Various States
3. Wills Laws of Lagos State
4. Administration of Estate Laws
5. Illiterate Protection Act
6. The Marriage Act
7. HCCPR 2019

Question 6

Types of Wills?

Answer 6

1. Formal/Statutory
2. Nuncupative/Oral
3. Holographic
4. Privileged will
5. Joint Will
6. Reciprocal will

Question 7

Persons to whom privilege will apply to?

Answer 7

1. Soldiers in actual military service
2. Crew members Commercial airline(applicable in Lagos)
3. Mariners at sea

Question 8

Conditions for Oral Will?

Answer 8

1. Made in the presence of two witnesses
2. Imminent fear of death
3. Voluntarily made
4. Testamentary intention & sound mind
5. Sufficiently describes the properties
   If a person survives it, it nullifies the will.

Question 9

Features of privileged will under AFA?

Answer 9

1. It must be in writing
2. Must relate to personal property
3. Executed in front of at least 1 witness
4. Testamentary intention & capacity
   S 276

Question 10

Advantages of making a will?

Answer 10

1. Prevents the issue of intestacy
2. Ensures that the testator’s wishes are reflected after his demise
3. Provisions to appoint a guardian to take care of the testator’s infants
4. freedom of appointing people as executors
5. proper distribution of his properties
6. The testator the opportunity of making specialty gifts or donations

Question 11

Disadvantages of making a will?

Answer 11

1. Promotes disunity amongst family
2. Conflict of interest may arise
3. The clash between customs/culture and wills.
4. Mistake may render the will void
5. Strict formalities

Question 12

What must a testator possess before making a will?

Answer 12

1. Testamentary capacity
2. Testamentary intention(ANIMUS TESTANDI)

Question 13

What is Testamentary capacity?

Answer 13

ARM
-Age
-Restrictions imposed by customary law
-Mental Capacity

Question 14

What is the age restriction to make a will under Wills Act and Wills Law of Lag?

Answer 14

1. 21 years under Sec 7 of WILLS ACT
2. 18 years under Sec 3 of WILLS LAW

Every adult with a sound disposing mind and memory can make a will.

Question 15

Can a blind person make and attest to a will?

Answer 15

YES! they can make a will so far they possess TESTAMENTARY INTENTION & CAPACITY-INSITFUL V CHRISTIAN
It must be attested to in front of a notary public/Mag.

However, they cannot attest to a WILL.

Question 16

Can an illiterate make and attest to a will?

Answer 16

YES! they can make a will so far they possess TESTAMENTARY INTENTION & CAPACITY-INSITFUL V CHRISTIAN
It must be attested to in front of a notary public/Mag.

An illiterate protection jurat must be inserted.

Question 17

What happens when a minor makes a will and subsequent codicil was made to ratify it?

Answer 17

It will still invalid. A prudent solicitor should advice the minor to make another will once he has attained the age of majority.
However if the minor falls under the exception of privilege will, he may be permitted

Question 18

Can a convict make a will?

Answer 18

YES! they must posses testamentary capacity & intention. There is no law restricting a convict from making a will.
They can also attest but it may be subject to review in the event of a dispute.

Question 19

Can a mentally ill person attest to a will?

Answer 19

YES! during his period of lucid intervals. He may also attest during the period of lucid intervals
OKELOLA V BOYLE

Question 20

When can a testator be said to have mental capacity?

Answer 20

Where the testator is of sound disposing mind as at:
1. At the time he was giving the instructions
2. At the time the will was being executed

Question 21

Is a will going to be valid where the testator had sound disposing mind at the time he was giving instructions but loses it before execution of the will?

Answer 21

Generally no!OKELOLA V BOYLE
except certain conditions can be proved-PARKER V FELGATE
1. The testator had sound disposing mind as at the time he was giving instructions to the solicitor
2. There was no intermediary
3. The lawyer followed the testator’s instructions

Question 22

Is there an exception to the no intermediary rule in PARKER V FELGATE?

Answer 22

YES!
BATTAN SINGH v ARMICHAND
1. The instructions must be unambiguous and clear
2. The intermediary understood the instructions of the testator
3. He communicated the instructions to the solicitor honestly
4. The solicitor understood the instructions clearly

Question 23

What is the degree of mental capacity test in a Will?

Answer 23

BANKS v GOODSFELLOW
a. he understands the nature of a will and its purpose
b. He must understand the extent of the property he is disposing of;
c. He must understand and recollect the persons who are the objects of his bounty; and
d. He must understand the manner on which property is to be distributed amongst beneficiaries

Question 24

Can a person suffering from delusions create a valid will?

Answer 24

YES! where he passes the test in BANKS V GOODSFELLOW

Where the delusion influences the dispositions under the will, it will be invalid.

Question 25

Can a person with failing bodily health make a will?

Answer 25

**YES!** Failing bodily health will not affect mental capacity, so far he passes the test in BANKS V GOODSFELLOW.

Question 26

What are the conditions for validity of a will?

Answer 26

1. It must be in writing 2. Duly executed 3. Attestation by two credible witnesses 4. It was made voluntary 5. There are no restrictions on capacity.

Question 27

What are the conditions for the validity of a will?

Answer 27

1. It must be in writing 2. Duly executed 3. Attestation by two credible witnesses 4. It must be voluntary 5. Presence of testamentary capacity & intention

Question 28

What are modes of discharge of Burden of proof of validity?

Answer 28

**RADS** 1. Presumption of Regularity 2. Presumption of Affirmative Evidence 3. Presumption of Due execution 4. Presumption of Sound Mind

Question 29

What are modes of discharge of Burden of proof of validity?

Answer 29

**RADS** 1. Presumption of Regularity 2. Presumption of Affirmative Evidence 3. Presumption of Due execution 4. Presumption of Sound Mind

Question 30

What is presumption of regularity in a will?

Answer 30

Where a Will appears to be ex-facie regular in the absence of fraud, there is a rebuttable presumption that it was duly executed. **SEC 168 EA**

Question 31

What is presumption of affirmative evidence in a will?

Answer 31

Basically involves evidence to show that the testator understood the will and the conduct of the testator before and after making the will OR piece of evidence to show that the will is valid. This could include evidence showing the activities of the testator before, during and after the making of the Will, Evidence of the testator’s general habit and course of lif

Question 32

Who has the burden of proof where a will is being challenged?

Answer 32

The propounder needs (the executor or administrators) to show that the testator had testamentary capacity and intention at the time the will was made. Once this is discharged, it shifts to the challenger.

Question 33

Can a person sign a will on behalf of a testator?

Answer 33

YES BUT IT MUST BE IN THE TESTATOR’S PRESENCE. Note that he can sign anywhere **IN THE GOOFS OF MARSHALL**

Question 34

What happens after a will is signed and dispositions are made after the signature?

Answer 34

Any gift coming after the signature will be invalid.

Question 35

Modes of Executing a will?(signature)

Answer 35

1. Personally 2. Through an agent 3. Through an acknowledgment signature

Question 36

Conditions for personal signature of a testator?

Answer 36

1. The will must be signed by the testator 2. It must be signed in front of the two credible witnesses 3. The two witnesses must attest to the will in front of the testator(they need not attest in front of each other)

Question 37

Conditions for acknowledgment signature of a testator?

Answer 37

Here the will has been signed by the testator but it has not been duly executed by the witnesses 1. The testator must acknowledge his signature in front of the witnesses being present at the same time 2. The witnesses must then attest in the presence the testator.

Question 38

Conditions for execution by delegation?

Answer 38

1. It must be done in the presence of the testator and the two witnesses 2. The two witnesses then attests to the will in the presence of the testator not each other.

Question 39

Can a beneficiary or their spouse attest to a will that they are benefiting from?

Answer 39

Generally **NO!**(there are exceptions) This is because of the rule that says where a beneficiary or a spouse of a beneficiary attest to a will, he will lose his benefit under the will

Question 40

What are the exceptions to the general rule that states that a beneficiary cannot attest to a will?

Answer 40

1. Where there’s a subsequent codicil affirming the gift 2. Privileged will-**S 276 AFA** 3. Where there are 2 other witnesses apart from the beneficiaries 4. Where the spouse of a beneficiary has attested to the will before marriage to the beneficiary 5. Where the gift is an obligation owed

Question 41

Limitations on testamentary capacity?

Answer 41

1.Customary Law 2. Islamic Law 3. Statutory Law

Question 42

What is the Igi Ogbe in Benin?

Answer 42

It is a basically a customary law restriction that stipulates that the 1st son of a testator shall benefit the **house of the deceased person**(where he has performed the burial rites). Where the testator devise the igi ogbe on another person, the gift will fail but it will not affect the entire will. **IDEHEN V IDEHEN**

Question 43

Where the property is not located in Benin, will the igi ogbe apply?

Answer 43

NO! The Igi ogbe custom does not have extra-territorial application outside Benin kingdom,

Question 44

What is islamic restrictions in the disposition of properties?

Answer 44

A muslim cannot disposed more than 1/3 of his properties to persons that are not his heirs Applicable in the **North + OYO+KWARA** Not applicable in Lagos.

Question 45

What are statutory restrictions in disposing a will?

Answer 45

Where the testator has dependents and he has not made any provisions for them, the dependents can challenge the will within **6 months** of grant of probate at the HC.

Question 46

What is a legacy and devise?

Answer 46

**Legacy**-is for personal & moveable properties **Devises**-are for real properties & immovable properties

Question 47

Draft a sample charging clause?

Answer 47

**I declare that my executors in their acting in their professional services towards my estate shall be entitled to charge their usual fees for services rendered in the administration of my estate.**

Question 48

What are the types of gifts/legacy?

Answer 48

1. Specific 2. General 3. Demonstrative 4. Pecuniary 5. Residuary

Question 49

what is specific gift?

Answer 49

this is a gift which is easily traceable, identifiable or ascertainable as it is properly described and belonging to the testator. Most times the pronoun ‘MY’ is used. not subject to **abatement & ranks in priority**

Question 50

What is general legacy?

Answer 50

it is the opposite of specific legacy as it is a gift which is not easily identifiable. “A” is usually used. It suffers from abatement.

Question 51

What is demonstrative gift?

Answer 51

this is a gift in between specific and general gifts in that the testator directs that the gift is to be satisfied out of a specific fund or pool of property and the testator indicates in his will where such gift can be sourced.

Question 52

What is residual gift?

Answer 52

they are remainder of the estate. Residuary gift is a directive gift in a will specifying as to how to manage or apply the remainder of the testator’s gift after all the gifts in the will have been distributed to their respective beneficiaries.

Question 53

What are the extent of residuary gifts?

Answer 53

1. Failed gifts 2. Properties the testator acquired after his death 3. All properties which the testator forgot to be included as gifts 4. Gifts that have been renounced by the beneficiaries

Question 54

Effect of absence of residuary clause?

Answer 54

It may lead to partial intestacy **SEC 53 AEL**

Question 55

Circumstances where a gift may fail?

Answer 55

**PAAL POD CUP** 1. Presence of vitiating factors 2. Ademption 3. Abatement 4. Lapse 5. Public policy 6. Operation of law 7. Disclaimer 8. Conditional gifts 9. Uncertainty Property not owned by the testator

Question 56

Examples of presence of vitiating factors in a Will?

Answer 56

1. Undue influence-cannot vitiate a will except when it amounts to **coercion** and overrides the testator’s testamentary freedom 2. Mistake 3. Fraud

Question 57

how can a will be revoked?

Answer 57

1. By a Subsequent Valid marriage 2. By Destruction 3. By duly executing a Will or Codicil 4. By duly executing a written declaration of intention to revoke,

Question 58

modes of altering a will?

Answer 58

• By re-execution in the Margin of the Will • By re-execution through the Use of a Memorandum • By re-execution through Use of a Codicil

Question 59

custody of a will?

Answer 59

1. With the Probate Registry of the High Court within the jurisdiction of the testator: 2. With the testator’s solicitor 3. With the bank 4. With a trusted younger relative or friend 5. With the testator in his house or any other place he considers safe 6. With the executors