Nigerians in particular tend to react unfavorably when this topic is brought up, but it is a fact that we should have in mind :- Death is certain, whether unexpectedly or after a long and fulfilled life. Even in life, one needs to have his or her affairs and interests in order when the overall objective is generational progress and prosperity.
What’s also certain is that in most cases we will be survived by people and causes we cared about and sometimes owed a duty of care and upkeep, along with the fact that virtually every adult also has something of value they would like to leave or bequeath to these people and causes we care about and we wouldn’t like to leave gifts or resources that would become a burden to the people they were meant for.
Whether it’s chattels or moveable properties like jewelry, clothes, electronics,cars or intangibles like Stock portfolios, Financial receivables or Life Insurance policy payouts or Bank Accounts or Real Estate assets , the gifting or disposition of these items in the event of death or even during the life of the giver is usually carried out by either Wills or Trusts and is still governed by law, specifically Trust, Succession and Estate laws.
What this article aims to do is to deal with the questions of what wills and trusts are, who is eligible to have a will written or trust created, and how to legally access one’s inheritance with & without a will as well as your legal options when you’re faced with a Will that doesn’t favour you and under which you are supposed to be a major beneficiary.
What is a Will?
Wills are Legal documents made by people (called Testators) used to carry out the gifting, sharing and allocation of all their assets/properties constituting their estates upon their deaths according to their wishes as well as choosing people who are to manage their estates (called Executors) up until the final distribution of their assets and liabilities.
For wills to be given final legal effect after the death of a Testator, an application under the Wills laws of various states must be made to the relevant Probate Court for what is known as a Grant of Probate after the payment of a 10% Probate duty among other requirements.
What are the types of Wills in Nigeria?
The most common types of Wills in Nigeria are –
- 1. Statutory Wills :- These are wills made according to the directions of the Wills law applicable in a particular state. These types of wills can also be called attested written wills.
- 2. Holographic Wills :- These are wills made in the handwriting of the testator with no formalities.
- 3. Mutual Wills:- These are wills made between spouses in a marriage naming each other as their major beneficiaries.
- 4. Non-Cupative Wills :- These are wills made orally before 2 credible witnesses.
- 5. Privileged Wills :- These are wills exempted from Statutory requirements for validity of wills and which are usually made by people in Military service or Sailors at sea.
What’s the minimum Legal age for making a Will?
Under the Wills laws of states like Lagos, anyone above the age of 18 years can make a will. Under the Wills act, a statute of general application, the minimum age requirement is 21 years.
Are there any requirements or Legal guidelines for making a valid Will?
Yes there are. For a Will to be valid there must be the following :
- Testamentary capacity :- This is the presence of a sound mind knowing that he is disposing of his assets via a will that will become effective upon his death as well as satisfying the minimum age requirement.
- The will must be signed by the Testator at the foot of the will in the presence of 2 witnesses or by some other person in the presence of the Testator at his direction as well as in the presence of 2 witnesses or signed by the Testator in the absence of 2 witnesses, but to be later acknowledged in the presence of 2 witnesses.
It should be noted that any disposition after the signature of the Testator will be void even though the main will stays valid.
Are Wills required to be registered?
Yes, they are. The Wills laws of various states in Nigeria require that any Will made must have a copy lodged with the Probate Registry of the state where the testator’s estate is located.
How are wills registered?
You do this by instructing your lawyer to make an application to the Probate Registry of the state where you have domiciled assets.
The next stage will involve the will being examined for defects like an absence of waxing or a seal. When the examination is done, the testator through his lawyer pays a Regulatory lodgment fee and an official receipt/reference number will be issued to your lawyer. This reference number is what will then be used to apply for what is called a grant of probate which entitles the beneficiaries of a will to take possession of their gifts and inheritances.
What if there are errors in my Will that i want to correct?
You can make a correction of defects in your will by means of a Subsequent or New will revoking the old one or via a Codicil which is basically a supplementary document by which a testator can amend, alter, add to or revoke the contents of a previous will.
When do i need to document a new will?
You should prepare a new will when:-
- You enter into a new marriage, the exception being where your previous marriage is a customary marriage or the will was made in contemplation of any subsequent marriage.
- There’s an increase in the size of your family.
- You become divorced.
- There’s a clear increase in your assets.
- You relocate to a state with a different Wills law.
Can i be an attesting witness and beneficiary to a will at the same time?
No, neither a witness nor his spouse can be a beneficiary to a will witnessed by him except in the case of :-
– Privileged Wills.
– Where the beneficiary marries an attesting witness after the will has been made.
– Gifts given to trustees.
– Where the witness signs only to shoe that he agrees with the contents of the will and not as an attesting witness.
– The gift given to an attesting witness comes with a direction by the Testator for the payment of his(the Testator’s) debt owed to a creditor.
– The gift is confirmed by another Will not witnessed by the beneficiary.
Can gifts given in a Will fail or be disallowed under law? If yes, under what conditions?
Yes, gifts or Inheritances given in a will can fail based on the following conditions –
– Public Policy :- Especially where a gift in a will is meant for the continuation of an immoral or illegal purpose e.g Gifting the ownership of a brothel.
– Where the beneficiary is actually responsible for the Testator’s death.
– A disclaimer/rejection of a gift in a will by the beneficiary.
– Uncertainty about the gift or the specific beneficiary, usually very common with Life Insurance policy payouts.
– Where a gift is found to be the result of clearly established Undue Influence placed on the Testator by the beneficiary.
– Conditions stated in a will for accessing a gift being unsatisfied e.g Conditional gifts that are tied to the beneficiary getting married and having kids as a condition.
– Where a beneficiary cannot be found or where he dies before the Testator as a result of which the gift will become part of the Testator’s Residuary Estate, a notable exception being where the beneficiary is a child of the Testator and leaves behind a heir or grandchild of the Testator.
– Where there’s a case of Ademption i.e. Where a gift mentioned in a will is no longer in the estate of the Testator at the time of his death.
– Where there’s a case of Abatement i.e. Insufficient funds required to pay for a gift to a beneficiary specifically mentioned.
– Where a gift mentioned in a will is actually family property not solely owned by the Testator.
What about where i have assets scattered across different states and even outside Nigeria? How do i register my will in such a case?
You can register the same will naming all your assets in one Probate Registry. When a grant of probate is applied for after your death and is given, the Grant of Probate must be registered or RESEALED in the Probate Court and Registry of other jurisdictions where you have assets.
A Notice of Resealing will then be sent to the Probate Court where the original grant of probate was obtained.
Can you please explain who Executors of a will are and the conditions required to be a named executor in a will?
An executor is a person appointed in a valid Will for the purpose of ensuring the satisfaction or execution of a Testator’s instructions and wishes as contained in the will and applying for a grant of probate which will become pending upon his death, this placing a fiduciary duty on an executor.
A minimum of 1 executor is required (in this case a Trust Corporation or Sole beneficiary who’s not a minor) while a maximum of 4 executors is required for a grant of probate.
What do i do when a will has been read and i am not satisfied with the will or i suspect that the Testator could not have made the will with a clear mind?
What you should do is file a legal challenge to the will being granted a probate called a Caveat to which the executors have to respond with a citation, making the matter a contentious one to be resolved in court. Caveats can expire within 3 months and are renewable.
What happens when a person dies without making a Will? I have heard of people who have been unable to access the bank accounts of their spouses because of this issue.
When a person dies without making a will, he is said died Intestate.
Under Nigerian estate succession law, no one can access any of the assets of the deceased in the absence of a will without a granted Letter of Administration. Letters of Administration can be granted with wills attached (in the case of Residuary estate beneficiaries for example) or more commonly, where there are no wills.
This requires those entitled to apply under the law(a minimum of 2 people) providing bonds and 2 sureties as well as a 10% probate duty fee on all traceable assets of the deceased.
Also, applications for Letters of Administration must be published on a newspaper page with a notice for any objection to the grant of Letters of Administration to be made within 3 weeks of the publication before a final grant.
Who are the parties entitled by law to apply for a Letter of Administration in Nigeria?
In states like Lagos, the Administration of Estate Law gives a priority ranking of people entitled to apply for a Letter of Administration in this manner :-
- The spouse of the deceased.
- The children of the deceased as well as grandchildren of the deceased whose parents died before the deceased.
- Parents of the deceased if they’re still alive.
- Full-Siblings of the deceased or their issues in the case of where they died before the deceased.
- Half-Siblings and their children where they died before the deceased.
- Grand parents of the deceased.
- Full-blooded Uncles and Aunts of the deceased and their children where they died before the deceased.
- Half-blooded Uncles and Aunts of the deceased and their children where they died before the deceased.
- If there’s no readily available member, then the Administrator-General of the state where the deceased had assets.
- Creditors of the deceased.
Can a Grant of Probate be revoked?
Yes it can in the following cases:-
– Where the Executor failed to prove the will in Solemn form(where the will is contested).
– Where a subsequent will is found.
– Where a Probate grant was obtained by fraud.
– Where the Probate grant was made to the wrong person.
– Where an executor becomes incapable of discharging his duties required under the Will.
– Where a Probate was granted while a Caveat was in force.
– Where the Testator is found alive.
What is a Trust?
A Trust is a legal arrangement involving the vesting or transfer by one party called a Trustor of its legal title to a property in a person known as the Trustee operating in a nominal ownership capacity for the benefit of a third party known as a beneficiary. This can apply to Trust Assets or Trust Funds .
What are the types of Trusts in Nigeria?
Trusts can either be Public(Charitable) or Private, with Private trusts being divided into Express, Constructive, Implied or Resulting trusts.
Trusts can also be revocable or irrevocable as well as Conditional (becoming accessible to the beneficiary upon the satisfaction of a Condition e.g getting married) or Contingent (upon the occurrence of an event e.g. attaining the age of 30 years).
Can i create an inheritance or Trust legacy to be enjoyed by my loved ones while i am still alive?
Yes you can by means of a type of trust known as an Inter Vivos trust which is a type of trust created for a beneficiary by a living Trustor.
How do i ensure an efficient and dependable management system of my estate which has grown at an exponential rate?
You can do this through a Probate or Trust Corporation dedicated to rendering Estate Management services, a dependable lawyer skilled in succession law, or in the case of a very large estate you can assemble a team of experienced professionals and set up what is known as a Family office.
A family office is a type of Trust Corporation dedicated to total Private Wealth Management services for High Net Worth Individuals (HNWIs) and High Net Worth Families aimed at management, creation, expansion, sustenance and transfer of wealth across generations. Examples of Family offices in Nigeria include the TenGen Family Office founded by the Imuokhuede & Wigwe Families, Blackbridge West, and Barino Investments Limited founded by the Aderinokun family.
It is hoped that from this write-up a clear understanding of the need to legally secure your estate for the benefit of your loved ones is nothing to be afraid of and is of the utmost importance in a world where anything can happen and in a society prone to very rampant occurrences of property conversion. It is also hoped that digesting this article will help you make better-informed decisions in planning your Estate succession to take effect according to your wishes even during your lifetime going forward.
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