Introduction
A will is an important estate-planning document that allows a person to express how their property should be dealt with after death. Preparing a will can help provide clarity, reduce uncertainty and make it easier for those responsible for administering an estate to understand the wishes of the deceased.
Many people assume that wills are only necessary for wealthy individuals. However, anyone who owns property, has financial assets, has dependants or wishes to make specific arrangements concerning their estate may benefit from considering whether a will is appropriate.
The law relating to wills and succession in Nigeria may depend on the applicable law in the relevant State and the circumstances of the individual concerned. For this reason, a will should be prepared carefully and with appropriate professional guidance where necessary.
What Is a Will?
A will is a legal document through which a person expresses instructions concerning the distribution and administration of property after death. The person making the will is generally referred to as the testator.
Depending on the circumstances and the applicable law, a will may be used to:
- identify persons intended to benefit from the estate;
- make provision for the distribution of particular assets;
- appoint one or more executors to administer the estate;
- make provision concerning the administration of property; and
- express other wishes that may lawfully be included in a will.
A will generally takes effect after the death of the testator.
Who Can Make a Will?
The legal requirements for making a valid will may depend on the applicable law and the jurisdiction in which the will is made. Generally, however, the testator must have the legal capacity required to make a will and must possess the necessary mental capacity at the time the will is executed.
A person making a will should understand, among other things:
- the nature and effect of making a will;
- the general nature of the property being dealt with; and
- the persons who may reasonably be expected to benefit from the estate.
A will may also be challenged where there are allegations that it was made as a result of fraud, coercion, undue influence or lack of the required mental capacity.
Why Is It Important to Make a Will?
Making a will allows a person to take a more active role in planning how their estate should be administered after death.
1. It Allows You to Express Your Wishes
A will allows the testator to state how property should be distributed among the persons intended to benefit from the estate. Without a valid will, the distribution of the estate may instead be governed by the applicable rules relating to intestacy and succession.
2. It Can Help Reduce Uncertainty
Clear instructions concerning the administration and distribution of an estate can help reduce uncertainty among family members and other persons interested in the estate.
Although the existence of a will does not necessarily prevent disagreements, a properly prepared will can provide an important starting point for understanding the wishes of the deceased.
3. It Allows You to Appoint an Executor
An executor is a person appointed under a will to carry out responsibilities connected with the administration of the estate. Depending on the circumstances, the executor may be responsible for identifying estate assets, dealing with liabilities, taking steps required for the administration of the estate and distributing property in accordance with the will and applicable law.
Choosing an executor is therefore an important decision. The person appointed should be trustworthy and capable of carrying out the responsibilities involved.
4. It Forms Part of Estate Planning
A will can form part of a broader approach to estate planning. Reviewing property, financial arrangements and family responsibilities may help a person consider how their affairs should be organised and administered.
How to Prepare a Will
The preparation of a will should be approached carefully. The following steps may provide a useful starting point.
1. Identify Your Property and Assets
Begin by considering the property and assets that form part of your estate. These may include land, houses, money in financial institutions, investments, vehicles, business interests and personal belongings.
It is important to understand that not every asset may necessarily pass through a will in the same manner. The legal nature of the asset and the manner in which it is owned may affect how it is dealt with after death.
2. Decide Who Should Benefit
The testator should consider the persons or organisations intended to benefit from the estate. These may include family members and other persons, subject to the applicable law and the particular circumstances of the estate.
3. Choose an Executor
Consider carefully who should be responsible for administering the estate. In some circumstances, it may also be appropriate to appoint more than one executor.
Before appointing a person, it may be helpful to consider whether the proposed executor is willing and able to undertake the responsibility.
4. Prepare the Will Carefully
A will should clearly identify the testator and express the intended instructions concerning the estate. Care should be taken to avoid uncertainty, inconsistency or ambiguity.
Where an estate involves substantial assets, business interests, property in different locations or potentially complex family arrangements, obtaining legal advice may be particularly important.
5. Ensure That the Will Is Properly Executed
The execution of a will must comply with the legal requirements applicable to the particular jurisdiction. These requirements may concern matters such as the signature of the testator and the presence and signatures of witnesses.
The role of witnesses and the effect of a benefit given to a witness may also raise legal issues. For this reason, it is advisable to ensure that the execution of the will complies with the applicable law.
Where Should a Will Be Kept?
A will should be kept in a secure location where it can be located when required. It may also be appropriate to ensure that the executor or another trusted person knows where the original will is kept.
The appropriate method of keeping or depositing a will may depend on the facilities and procedures available in the relevant jurisdiction.
Can a Will Be Changed?
Subject to the applicable law, a person who has the required legal capacity may change or revoke a will during their lifetime.
Changes in personal or financial circumstances may make it appropriate to review an existing will. Examples may include:
- marriage or other significant changes in family circumstances;
- the birth or adoption of a child;
- the acquisition or disposal of significant property;
- changes in business interests;
- changes in the circumstances of a beneficiary; or
- changes affecting a person appointed as an executor.
Depending on the applicable law and the circumstances, a will may be amended through an appropriate legal instrument or replaced with a new will. Care should be taken to ensure that any amendment or replacement complies with the relevant legal requirements.
What Happens When a Person Dies Without a Will?
A person who dies without leaving a valid will is generally described as having died intestate.
Where this occurs, the administration and distribution of the estate will generally be governed by the law applicable to the circumstances of the deceased and the property concerned. Depending on the situation, this may involve statutory rules of succession, customary law or other applicable legal principles.
The persons entitled to administer the estate may need to take the appropriate legal steps to obtain authority to administer the estate before assets can be distributed.
Probate and the Administration of an Estate
After the death of a testator, the executor or other appropriate person may need to take steps through the relevant probate or court process before the estate can be fully administered.
Where a valid will exists and an executor is able and willing to act, the appropriate grant may be required to enable the executor to administer the estate. Where there is no valid will, or where other circumstances arise, different procedures may apply.
The appropriate process depends on the applicable law, the nature of the estate and the particular circumstances involved.
Conclusion
Preparing a will can be an important step in planning for the future and making clear arrangements concerning the administration of an estate. A properly prepared will can provide useful guidance concerning the distribution of property and the persons responsible for administering the estate.
Because the law relating to wills, succession and estate administration may depend on the relevant jurisdiction and the circumstances of the individual concerned, it is important to ensure that a will is prepared and executed in accordance with the applicable legal requirements.
Important Consideration
A will should be reviewed when significant changes occur in a person’s family circumstances, property or financial affairs. Regular review can help ensure that the document continues to reflect the person’s current intentions.
Disclaimer
This article is provided for general informational purposes only and does not constitute legal advice. The law applicable to wills, succession and estate administration in Nigeria may depend on the relevant jurisdiction and the particular circumstances involved. For advice concerning a specific will, estate or succession matter, consult a qualified legal practitioner.
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