PROPERTY LAW PRACTICE: CASES AND PRINCIPLES IN WILL AND CODICIL PART 1

So, Mr Chamberlain is taking steps to make a will and for the next three weeks we will be talking about will. Things to take note of;

a)      Who can make a will

b)      Why should I make a will?

c)      Why I will not make a will

d)      Taking instructions for making a will

e)      The types of will

f)       Applicable laws

g)      Features of each types of will

h)      Execution of a Will

i)        Codicil

j)        Alteration in a will

k)      Testamentary capacity.

N.B: FOR THE PURPOSE OF BAR PART 2, VALIDITY of will goes to EXECUTION of the will WHILE TESTAMENTARY CAPACITY goes to his age, voluntariness, Mental Capacity, Restriction (Culture, Religion, statutory)

                                                            WILL

WHAT IS A WILL?

A will is testamentary instrument voluntarily made and executed according to law by a testator with a sound disposing mind where he disposes his property and gives other directives as he may deem fit.

N.B: Such disposition takes effect after the death of the testator.

N.B: A will though disposes property is not an instrument of conveyance, a will cannot be a source of title except an Assent is executed by the Personal Representative of the testator in favor of the beneficiary.

N.B: The opposite of will is a deed of gift.

N.B: Until the death of the testator, a will is a mere declaration of intention.

WHAT IS A CODICIL?

A codicil is miniatures will, it is similar to a will but it is a supplement to a valid will previously made, being executed for the purpose of;

a)      To amend a will

b)      Revoke a will

c)      Revive a will

d)      Republish a will

N.B: It is usually annexed to a will and it cannot exist without a will. And very importantly all principles on capacity and validity of a will apply to it.

                              WHY SHOULD I HAVE A WILL?
So, Derin have approached you to explain to her why her father should have a will even thou his still full of age……the reasons are;

1)      A will displaces the application of the customary rules of inheritance. See IDEHEN V IDEHEN (where a will is made it prevents the traditional or customary law of the testator from prevailing)

2)      The testator can select and appoint guardians to look after his children if he so desires

3)      The testator has a satisfaction of having ordered his affairs before his death

4)      A will displaces the application of the rules of statutory devolution

5)      The testator has a satisfaction of benefitting those he loved or owed a duty to care

6)      The testator has the satisfaction of appointing people he trusts as his executors who has the duty to carry out his wish

7)      An executor can act from the day the testator dies but where there is no will, nobody can act until the administrator is appointed

8)      It gives the testator opportunity of making specialty gift e.g Organ donation

WHY SHOULD I NOT MAKE A WILL

Now Derin came back after telling her dad about the advantages of making a will that he has refused to make a will, what are the reasons why her dad refused to make a will…..

1)      The belief that the making of the will remind them of their death

2)      The belief that people kill testator before their natural death because of greed having being aware of a will and their benefit and don’t want it to be changed

3)      The person who receives instruction at the time could take advantage of the testator by committing fraud

4)      The disbelief in the Nigerian Legal system

5)      The clash between culture and will (law)

FEATURES OF A WILL

a)      It is testamentary i.e it speaks after the death of the testator. This distinguishes it from other  documents which take effect inter vivos

b)      It is ambulatory which means that is capable of being changed and revoked during the lifetime of the testator.

c)      It is voluntary which means that it must be independently and freely made without pressure and undue influence from other persons

d)      The testator must possess a sound disposing mind

e)      It must contain dispute provisions if not it is not a wil

f)       It is capable of being revoked before of the testator.

TAKING INSTRUCTIONS

So finally our friend Dad; Derin have decided to make his will, how should you take instructions;

a)      Instructions should be taken in writing by the solicitor

b)      The solicitor is to guide the testator as he makes his intentions known

c)      Issues of ambiguities should be clarified by the solicitors

d)      The lawyer must keep his language simple and devoid of complications

e)      The solicitor must inform the testator on the qualification of peple that can attest to the will ROSS V COUNTERS

TYPES OF WILL

NUNCUPATIVE WILL: This is an oral directive of a person made in contemplation of imminent death in respect to the disposition of his property upon death. It is known largely to customary law.

IN BANKOLE V TAPO: An oral disposition of land by a testator was upheld to be sufficient to transfer the property to the beneficiary. However, certain conditions must be satisfied;

a)      It must be made voluntarily

b)      The testator must have a sound mind

c)      It must be made in the presence of two credible witness

d)      The property and beneficiary must be specified.

Furthermore, in ADEYINKA V IBIDUNMI: The court held that it is not a condition precedent that the maker of this type of will, must be on his death bed (death bed wishes) in order for it to be valid.

STATUTORY WILL: They are will made in accordance with the requirements of a statute. The provisons of the Wills Act 1837 or the relevant will laws of the testator’s state. The features are;

a)      It must be in writing

b)      It must be duly executed

c)      It must be attested to by at least 2 witness

d)      The testator must have testamentary capacity.

EXECUTION OF A WILL

THE CASE OF NELSON V AKOFIRANMI

BRIEF FACTS: The Testator who was an old man at about 84 at the time of making the will, he had received a very good education and was energetic in his days. He felt and rightly too that at his age the time has come he must put his house in order. In the first place he had only one daughter (married) by a lawful wife who died over 35 years ago. Since the death of that wife he had taken unto himself a wife, apparentely married to him by Native law and custom who had been with her for 28 years at the time of making the will.  The daughter was not in good terms with the step-mother.

The testator therefore summoned one of his trusted parishioner, a Mr Cole, to his bedside where he was lying paralyzed in his right hand and his right leg but otherwise fully conscious , so he dictated the will to Mr Cole, to whom he urged to take down the will on a piece of paper which he was going to type out and bring to him on a certain date fixed by him, namely 17^th June 1995.

On the appointed day, the testator had summoned his daughter and other relatives to his bedside. On Mr Cole arrival with the typewritten copy of the will, the testator instructed him to read out the will and bade him to translate the will to Yoruba language for the benefit of all present , the people present were 3 in number, they all signed and attested to the will after Cole finished reading the will………after 18 months the poor old man died (now in the tenor of his will which I don’t need to reproduce here show how anxious the testator was that everything should be done with care and precision)

ISSUES IN THE CASE

The issue in the case bothers on execution of the will, the daughter claimed that her father was ill, very old and feeble and he never signed the will. She even went ahead to deny her own signature on the will.

HELD: The court stated that for a will to be vaild it must comply with SECTION 9 OF THE WILLS ACT;

                        ‘’…..No will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned i.e it shall be signed at the foot or end thereof by the testator or by some other persons in his presence and by his direction, and such signature shall be made or acknowledged by the testator in the presence of two witnesses present at the same time and such witness shall attest and shall subscribe to the will on the presence of the testator……’’

The court went further to hold that the capacity of the testator was not in issue and from the circumstances in the case about the attestation; Mr Cole reading of the will and interpreting the will to everyone present and it was established that the testator signed first by his thumb impression on the last page of the will on the right bottom and at the end of it to comply with the wordings of SECTION 9 OF THE WILLS ACT, and each witness also signed at the left corner above his own signature, and Mr Cole himself who signed after the testator as a witness to his thumb impression……..all these points out that the will was duly executed.

                                    WAYS OF EXECUTING A WILL

We have three ways which are;

a)      Personal Execution by the Testator

b)      Delegated execution

c)      Pre-sign of the will

PERSONAL EXECUTION OF THE TESTATOR

So our fried dad Mr Musa Derin has accepted to make his will, so his on the satge of executing his will personally, the conditions he needs to fufill are;

a)      It must be executed in the presence of at least two credible witness

b)      The two witness must be present at the same time when the testator is executing the will

c)      The two witnesses must thereafter attest to the execution of the testator

d)      They need not witness each other attestation.

DELEGATED EXECUTION

So our friend dad, Mr Musa Derin due to been his stroke or paralyzed hands or the unfortunate accident that lead to the amputation of his hands, now his on the stage of executing the will, how will do it. Sir, you can appoint someone to execute the will on your behalf, but must satisfy the following conditions;

a)      The will must be executed in his presence

b)      The execution must be done pursuant to his instruction

c)      The execution must be witnessed by at least two credible persons

d)      The witnesses must be present at the time of execution

e)      The witness must attest to the will but not necessary in the presence of each other

PRE-SIGN OF THE WILL (CASE: IN THE GOODS OF DAVIES)

So our friend dad his almost dying and his on life support in the hospital, having few hours to die, and yet to execute the will….he can pre-sign the will, however the following conditions must be satisfied;

a)      He must acknowledge his signature in the presence of at least two witness present at the same time…in this Mr Musa Derin case, he must be revived to acknowledge the signature in the presence of the witness

b)      The witnesses must attest to the signature in the presence of the testator but not necessarily in their own presence.

SOME KEY POINTS DURING EXECUTION

SIGNATURE: A mark, thumbprint, initials or a stamp engraved with the testators name is sufficient and a testator who is too ill may have his hand guided in making the mark… WILSON V BEDDARD

POSITION OF THE SIGNATURE: The position of the law in SECTION 1 of the WILLS (AMMENDMENT) ACT, 1852 is that signature as long as it is satisfied that it came after the disposition part of the will is valid. Thus, the will be valid even though the signature appear at or after, following under, beside, opposite or at the end of the will.

PRESENCE OF WITNESS: The rule is that at least 2 persons must be there when the testator is executing the will. APATIRA V AKANKE, The qualities of the witness are;

a)      Must not be visually impaired

b)      Must be younger than the testator

c)      Must not be a beneficiary of a will

d)      Must not be a spouse of a beneficiary of a will

e)      Must be available

f)       Must be of sound mind.

POSER: WHY CAN’T A BLIND MAN ATTEST TO A WILL?

The kind of presence needed in attesting to the will is a visual presence not mere physical presence so a blind person cannot witness a will. Case: In the Estate of Gibson

                               WITNESS AS BENEFICIARY TO THE WILL

GENERAL RULE: A witness who benefits under a will, loses any property or benefit taken, the same rule applies to the spouse of a witness (a spouse at the time of attesting to the will). However, a witness who benefits is not prevented from testifying to prove the execution of such will or prove it validity…see SECTION 8 OF THE WILLS LAW OF LAGOS STATE

The law continues and it provides that where the will is still duly executed, if the signature of the benefitting witness is disregarded, the witness can still benefit from the gift made in the will….This can only arise where there are three witnesses to the will, the beneficiary can still keep his gift if the court discountenance the attestation of the beneficiary so that there will be at least two other witness to validate the will since the minimum number of witnesses are two.

EXCEPTIONS TO THIS RULE

a)      Wills that do not require witnesses such as soldiers in actual military service

b)      Where a beneficiary marries a witness after executing the will

c)      Where the gift in the will is confirmed by another will or codicil which is not attested to by the beneficiary

d)      Where the person present merely signs that he agrees with the contents of the will but not as witness

e)      Where gifts are given to persons in their capacity as trustees and not as beneficiary

DOCUMENTS TRANSFFERD IN THE WILL

Still with our friend dad Mr Musa Derin, there was a time in his life that he had a memorandum of understanding in a written form with Kofo to give her his Range Rover, the memo was not well executed. Now he has included it in his will, what the status of the document;

A document can be incorporated into a Will by reference. For such incorporation by reference to be valid, the following conditions must be satisfied

1. The incorporated document must be in existence at the time of executing the Will
2. The will must clearly identify the document
3. The will must refer to the document as already being in existence.

Upon the fulfillment of these conditions, the memo is valid and the range rover can be transferred to Kofo..

                                    EXECUTING ALTERATION IN A WILL

RULE: You can make alteration, however the same formalities used in executing the will (SECTION 9 WILLS ACT) i.e signing and attestation must be complied with to all alteration in the will.

In simple words, by virtue of SECTION 21 OF THE WILLS ACT AND SECTION 14 WILLS LAW OF LAGOS STATE both provides that;

            ‘’No obliteration, interlineation or other form of alteration in a will after execution is valid, or have any effect except in so far as the words or effect, of the will before such shall not be apparent, unless such alteration shall be executed in the same manner required for execution of the will……

The section further provides that;

            ‘’….alteration shall be deemed to be duly executed if the signature of the testator and the subscription of the witness be made in the margin or on some other part of the will opposite or near to such alteration or at the foot or end of or opposite to a memorandum referring to such alteration and written at the end or some other part of the will’’

I believe that the law as said it all, so the implication of any alteration on a will which is not signed as required above has no effect, in which case the alteration is ignored. AND where an unsigned and unattested alteration causes the part altered not to be apparent to the eyes, then that part of the will is deemed revoked

                                    PRESUMPTION OF REGULARITY

The advantage of having a will properly attested to in accordance with SECTION 9 OF THE WILLS ACT AND SECTION 4 OF THE WILLS LAW (LAGOS) is that a will properly attested to is presumed to be duly exexcuted. The presumption of due execution still applies even if the witnesses cannot recall witnessing the will.

However, the presumption of regularity can only be rebutted by;

a)      Direct Evidence of attesting witness as to negative due evidence

b)      Reliable positive evidence of one of the attesting witness may rebut the presumption.

IN CROFT V CROFT: It was held that

‘’ if the evidence of the attesting witness is directly against the due execution of the will, such evidence not being rebutted either directly or circumstantial evidence, and the veracity of the witness is unimpeached, the court cannot, by reason of a formal attestation clause, pronounce on the will’’

                        PROOF OF DUE EXECUTION

RULE: The onus of proving the validity of the will lies on the propunders of the will. They must clearly show evidence prima facie all is in order concerning the will. The burden only shifts to those challenging the will when the propounder satisfies the court that the document id the last will of a true and capable testator. See ADAMU V IKHARO

                        POSITIVE AFFIRMATIVE EVIDENCE

Since the burden is on the propounder to proof the validity of the will, if the court is unable to accept the presumption of due execution, then he can lead a positive affirmative evidence. The rule of positive affirmative evidence includes;

a)      Evidence that the testator wrote the will himself

b)      Evidence of attesting witnesses which should be corroborated

c)      Evidence of the Testator conduct before and after making the will

d)      Evidence of the general habits and course of life of the testator

e)      Medical evidence of doctors who have treated the testator in the past.

IN ACCORDANCE WITH THE RULES OF COURT; ORDER48 RULE 20 OF HIGH COURT OF THE FCT, ABUJA(CIVIL PROCEDURE RULES);

            ‘’where there is no attestation clause, or the attestation clause is insufficient, the court shall require an affidavit from at least one of the subscribing witness, if either of them is living, to prove that the will was, in fact, executed in accordance with those enactment’’

                        TESTAMENTARY CAPACITY

This area is very important, when we talk about testamentary capacity we have four elements;

a)      Age of the Testator

b)      Voluntariness

c)      Restrictions; statutory, Customary and culture.

d)      Mental Capacity.

IN simple language testamentary capacity means legal capacity of the testator to make a will.

Now let go into details of the 4 elements.

A)    AGE: Generally, for one to make a will, he must have attained the age of 18-21 years. Now the difference lies in the jurisdiction, in a state where the Wills Act is applicable, the age is 21 years while some other states stipulates the age to be 18 years, well I know of Lagos State. (SECTION 3 WILL LAW  OF LAGOS AND SECTION 7 WILLS ACT)

However, a person below the aforementioned age can validly make a will if they are in active military service or a seafarer, the following persons may execute a privileged will;

a)      Soldier being in actual military service

b)      A seaman or being at sea

c)      A mariner being at sea

d)      Crew of commercial airline in air

B)     VOLUNTARINESS: The testator must not be unduly influenced. You remember the definition of a will, a declaration in a prescribed manner of the intention of the person making it with regards to matters which he wishes to take effect after his death…..The vitiating elements that can affect voluntariness of the  will are;

i.                    Fraud

ii.                  Duress

iii.                Undue influence

iv.                Suspicious circumstances

IN HALL V HALL: The court held that;

            ‘’Persuasion is not unlawful but pressure of whatever character if so exerted as to overpower the volition without convincing the judgment of the testator, will constitute undue influence, though no force is either used or threatened’’

MENTAL CAPACITY

This area can only be understood through the various descion of the court.

RULE IN  ADEBAJO V ADEBAJO

The law requires that a testator must have a sound disposing mind both at;

a)      time of giving instructions

b)      execution of the will

The court went further that what constitute a sound and disposing mind is a question of fact and evidence that a person who can converse rationally and conduct his business is sufficient proof of mental capacity. The most prominent issues of incapacity arise from unsound mind, senility, drunkenness and undue influence.

TEST OF MENTAL CAPACITY

The test to determine whether the testator had mental capacity at the relevant periods was laid down in the locus classicus case of BANKS v. GOODFELLOW as follows:

i)        The testator must understand the nature of his act - that he is making his will and its effect.

ii)      He must understand the extent of the property he is disposing.

iii)    The testator must understand the claims on him. That is, he must understand, appreciate and recollect the persons who are the objects of his bounty (beneficiaries).

iv)    The manner in which the property is distributed must be rational

THE RULE IN PARKER v. FELGATE

If the testator gave instructions directly to his solicitor to prepare his will at a time when he had mental capacity and the solicitor prepared the will strictly in accordance with the instructions and the testator subsequently lost his mental capacity, but knew when he executed the will and that he was executing his will for which he had earlier given instructions, the court would uphold the validity of the will.

From the foregoing, there are two conditions that must be satisfied namely:

• Instructions given directly by the testator to the lawyer; and
• The lawyer carrying out the instruction – preparing the will in line with the instruction

Consequently, if the testator is sane at relevant periods, the Will is valid and it is immaterial that he was insane before or after those periods. This is because supervening incapacity does not affect the validity of a Will and also, recovery from incapacity does not validate an otherwise invalid Will.

THE RULE IN SINGH V AMIRCHAND

HOWEVER, for the rule in PARKER V FELTGATE to be valid, it must satisfy some certain conditions;

1)      The testator must have instructed his solicitor to prepare the will

2)      The testator must have testamentary capacity as at the time he gave the instructions to his solicitor

3)      The solicitor must have prepared the will in accordance with his instructions

4)      Even though he had lost his mental capacity at the time of executing, he must know that he is executing his will for which he had given prior instructions (he must be in Lucid period)

5)      The instructions must not pass through an intermediary to the Legal Practitioner.

CASE ANALYSIS

THE RULE IN OKELOLA V BOYLE

In this case, the testator was an illiterate. The will was written in English Language. There was no evidence that the will was read to the testator before the execution. It contained a jurat to the effect that the content was r ead and explained to the testator in the Yoruba Language but the Jurat was unsigned. It contains no name of an interpreter and there was no evidence of the interpretation of the will to the testator. On the issue of mode of execution the court of appeal held athat since a legal practitioner prepared the will it did not require an illiterate jurat, the case got to the Supreme Court and the following principles were laid down

RULE 1: it is not enough to prove that the will was prepared by a legal practituioner; it must be shown further that the testator knew and gave instructions to the legal practitioner who prepared it….it is essential to the validity of a will that the testator should know and approve of its content.

RULE 2: Where a document is ex facie duly executed the court may pronounce for it on the maxim Omnia preasuntur rite esse acts. That maxim only applies with force where the documents is entirely regular in form and no suspicion attaches to the will. But where suspicion attaches or the document cannot be said to be ex facie regular or where the testator suffers from disability such as deafness, blindness or illiteracy the maxim does not apply with the same force

THE RULE IN JOHNSON v. MAJA 13 WACA 290

FACTS

It has to do with the Will of the late Alfred Latunde Johnson, who died on the 7thApril, 1950. The Will was dated the 27thNovember, 1943, and a codicil to it was executed on the 27th July, 1945.

The executors applied for a grant of probate; but the testator’s widow lodged a caveat against the grant challenging the Will upon three (3) grounds.

On the first issue “that it had not been executed as required by law”the court stated that what is there to be said as to proof of the execution of a Will? An examination of the Will shows that it appears to bear the signature of the testator, that it has the usual attestation clause in the form required by law, and that it was witness by Bright Wilson, and A. S. O. Coker.

On the second issue“that the testator was not of sound mind, memory and understanding at the time of the execution” the court stated that it has to do with the testamentary capacity of the testator. The evidence shows, furthermore, that he continued in the active practice of his profession for some years after the date of the Will, and that he lived for over six years afterwards.

On the third issue “that the execution was obtained by the undue influence of a woman named Agnes Jokotade who was the mistress of the testator” the court stated that it is not disputed that when the doctors, in the early part of the year, ordered him to rest, the testator retired to a farm in the country where for some weeks he was away from his wife and was visited by Agnes Jokotade.

FURTHERMORE,

The court stated however that the defendant/respondent has failed to discharge the onus laid upon her. For it must be remembered that something far stronger than reprehensible, or even unnatural, conduct in a husband or father is required in these cases. The immoral conduct of the testator, his preference for his provision for her are far from being sufficient to show that the execution of his Will was obtained by Agnes Jokotade’s undue influence. There is indeed, nothing that can be found to connect Agnes Jokotade directly with it. And there is no evidence that Agnes Jokotade even “persuaded” the testator to make his 1943 Will, much less that it was by her fraud or her coercion that it was executed – even taking account of the varied forms which coercion may take.

Lewey J. A. Observed as follows –

“A testator has every right to change his mind at any time before his death

provided it is conclusively proved to the satisfaction of the Court that at the time

 of his executing the Will, he was a free agent and under no influence and

 that the Will was properly executed.”

The court set aside the judgment of the trial court and substituted therefore a judgment pronouncing in solemn form for the testator’s Will and the codicil thereto. The court further held that the Will stands and is effective; no useful purpose can be served by an examination of the law as to republication by a codicil.  The appeal was allowed and the judgment of the lower court was set aside.

THE RULE IN ADEBAJO v. ADEBAJO (1971) ALL NLR 599    

FACTS

The action was instituted by the widow and one of the persons entitled to share in the estate of Isreal Adebayo Ogunyeade Adebajo (deceased) who died on the 25th day of July, 1969, in the event of intestacy and to have as such a grant of letters of administration of the estate of the said intestate. The plaintiff accordingly claims a declaration that Isreal Adebayo Ogunyeade Adebajo died intestate.The plaintiff further asserted that at the time when the alleged Will was executed, the testator did not know and approve of its contents. Thus, the deceased at the time when the said alleged Will purports to have been executed was not of sound mind, memory and understanding. Thus, there was no valid will.

The defendants rebutted the plaintiff’s claim and asserted that the deceased personally gave instructions to A. Osijo, Esquire, Barrister-at-Law, to whom he gave detailed and sensible instructions about the dispositions contained in the said Will. They avered that at the time the deceased gave instructions to the said A. Osijo, Esquire, and at the time of executing the said Will he was of sound mind, memory and understanding and knew and approved the contents of the said Will and acknowledged his approval thereto; and that the said Will was executed with due solemnities by the deceased with a complete understanding and as a free agent without any undue influence or coercion as alleged or at all.

HELD

RULE 1: The court stated that if there be no date to a Will, or if there be an imperfect date only, one of the attesting witnesses or some other person present at the time of execution must supply evidence of the date of execution, if evidence of execution on a definite date cannot be obtained, evidence as to the execution between two definite dates should be given by both witnesses. If neither of the attesting witnesses nor any other person can depose to execution between two definite dates, evidence must be given showing that search been has made and no Will of presumably later date had been found. If the date given in the Will is not the true date of execution, evidence of the correct date should be given by an attesting witness or some other person present at the execution.

RULE 2: The court also stated that the burden of proving due execution, whether by presumption or by positive evidence, rests on the person setting up the Will. Slight evidence of mental capacity will not disturb the presumption of the court that a testator was of a sound capacity. The court further stated that the burden of proving unsoundness of mind lies on those who allege it. The action brought by the plaintiff was dismissed.

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