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News - 28 January 2020

Most people associate the making of a Will with the anticipation of death. This notion has been further perpetrated by Nigerian Nollywood movies where a man lying on his sick bed, calls for his lawyer, makes a Will and dies afterwards. This is not only fallacious but derogates from the true intent of a Will.

When should a Will be made?

A Will can be made by a person who has acquired any assets that can possibly outlive him or her. Also when a person has dependants, then a Will should be made. The Wills Act stipulates that a valid Will can only be made by a person who is above 18 (Eighteen) years of age.

Therefore an underage person cannot make a Will, except he is a seaman, mariner or part of a crew of a commercial airline. The hazardous nature of their jobs makes the law to envisage that there is more likelihood for them to die in the course of their duty. Hence, the law allows them to make a valid Will even though they are less than the statutory age.

What is the importance of a Will?

1.    To determine how assets will be shared:

A Will is used to share a Testator's assets, both current and fixed assets to his beneficiaries. A Testator has discretion in determining how this will be done.
A Testator can also take care of specific matters in his Will, i.e. if the Testator, has a Company, he can take care of issues like who will be the directors of the Company upon his demise and the transmission of shares in the Company. The only limitation to this power is imposed by Section 1 of the Wills Act which provides that a Testator cannot dispose of properties which he has no power to dispose of under the customary law to which he/ she is subject to. An example of this is the Idiogbe (this is the house which the Testator lived during his lifetime under Benin culture). Under the Benin customary Law, the house can only be passed to the first son of the deceased and no anyone else. Therefore when making a Will, a Testator cannot give the Idiogbe to another person.

2.    To appoint Executors of the Estate:

Executors appointed in a Will are in control of a Testator's estate upon his death. The Executors are responsible for the transfer of the property to the beneficiaries, as they do not immediately divest on the beneficiaries upon the demise of the Testator. A Will allows a Testator to choose trustworthy persons as his Executors, who will take into consideration the interests of the beneficiaries. When a person dies intestate (without a Will), only certain categories of people can become Executors and these persons may not deal with the estate fairly.

3.    To avoid your properties being shared according to customary law:

In the absence of a Will, a deceased person's property will be shared according to customary law. Most customary laws are archaic. Some customs do not allow properties to be given to female children and wives of the deceased. To circumvent these harsh and backward customs, it is necessary to make a Will.

4.    To avoid incessant suits in court:

It is very common in Nigeria that upon a man's death, his children will start fighting amongst themselves. This is even more common or worse where the deceased has many wives and died without a Will. Where a Testator makes a valid Will before his death, the likelihood for the Court to upturn it is slim. This makes the wishes of the Testator to stand. Incessant suits over the estate will be also avoided.

5.    To take care of other incidental matters like guardianship and funeral arrangements

A Will is not only used to distribute assets. It can also be used to appoint guardians for one's young children and wards. This is to ensure that the affairs of that child or ward are taken care of even after the Testator's death. Specific funeral arrangements of the Testator can also be included in a Will.

6.    The tedious process of assessing Letters of Administration:

To get letters of administration to administer a deceased's estate takes time and it is a tedious process. This could lead to the depletion of the estate of a Testator while waiting for the grant of letters of administration unlike a Will which comes into operation quicker.

7.    Peace of Mind:

Knowing that one's estate will be taken care of according to ones wishes gives a Testator peace of mind. There are numerous stories of the legacies of wealthy men falling into ruins because they fell into the wrong hands. Having a Will allows a Testator to choose capable people to carry on his legacies after his demise.

Conclusion

The act of making a Will does not mean that a person will die soon nor does it hasten death. 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.


Emmanuel Ekpenyong Esq. FCIArb

Emmanuel Ekpenyong Esq. FCIArb

Firm: Fred-young & Evans LP
Country: Nigeria

Practice Area: Corporate