PROPERTY LAW PRACTICE: CASES, PRINCIPLES AND DRAFTING IN WILLS AND CODICIL (2)

The best way to understand this area is by making it look real, see yourself as the Testator, beneficiary and the executors.

Continuation from our last post on will and codicil…we believe that we all know;

a)      Meaning of a will

b)      Who can make a will

c)      Validity of a will

d)      Testamentary capacity of the testator

e)      Proving the validity of a will

f)       Execution of a will

We discussed the above in our last post with cases and principles we were taught from the class and the recommended text given to us.

N.B: The content of our blog is from extracts of Notes in class, questions answered in class, recommended text, statutory and judicial authorities.

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)

So today, our friend MR. CHAMBERLAIN is dead, so the questions our post will be answering are;

a)      What nature of gift did our friend include in his will?

b)      When do we say a gift has failed?

c)      Assuming he was still alive, could he have revoked the will?

d)      Can he republish the will or revive the will?

e)      Where should he keep the will?

f)       Duties of lawyers in making of will?

g)      What kind of instructions should I take in drafting the will?

h)      What is the effect of not inserting some clauses in the will?

i)        Can I draft with my eyes closed, my feet on the ground with a hungry stomach, reciting all the way from the commencement to Execution and attestation?

So pick up your phone and call anyone in Lagos Campus, he/ she will recite the content of a will for you ….we rock in Lagos Campus. Kudos to our Lecturers!!!!

                                                GIFTS IN A WILL

THE RULE1: A will speaks from death, so the testator through his will; dispose his property owned by him at his death even when he acquired the property after his death.

THE RULE 2: The testator cannot be owing debt and his estate will be disposed, his debt must be first settled by the executors.

Generally, we have 3 major types of gifts, now do not throw stones yet I know you want to disagree with me; these 3 gifts can be in the forms of the other gift you know.

SO, we have;

1.      Special Gift

2.      General gift

3.      Demonstrative gift

HOWEVER, all these gifts can either be

a)      Annuity (Periodic in Nature)

b)      Conditional (to be taken on fulfillment of some conditions)

c)      Pecuniary gift (gift in form of money)

d)      Residuary gift (remainder of the estate)

The next question is, how can I identify the gifts in the exam?

1.     

 SPECIAL GIFT

Check out for the word ‘’my’’ ‘’the’’ in the gift you want to identify. A special gift is identifiable and distinguishable from other gifts of the testator. So in a special gift we have;

            NATURE+ SOURCE+ FULL PARTICULARS

EXAMPLE: I GIVE MY DUPLEX AT NO 2 VG STREET, BANANA ISLAND, LAGOS TO MY FIRST DAUGHTER DERIN

DEFECTS OF SPECIAL GIFT: It is subject to ademption, so if 3 months to my death I had sold my duplex at Banana Island and probably used the money to settle hospital bills. Upon my death the gift to Derin will fail i.e adeemed, because the gift is no longer in my estate.

2.     

 GENERAL LEGACY

Most people believe that this is the best way of disposing once property. It a form of gift that would be satisfied from the general estate of the testator. Unlike a special gift, it Is not fully defined and identifiable from the estate of the testator. So in a General gift we have;

NATURE – SOURCE – PARTICULARS

EXAMPLE: I GIVE A DUPLEX TO MY FIRST DAUGHTER, DERIN

TAKE NOTE: Although this form of gift does not suffer ademption, however if the estate of the testator is insufficient to pay the gift in full, the general gift must abate in equal proportion.

3.     

 DEMONSTRATIVE GIFT

It a form of gift that is general its phrase but specific in its fund, the gift is identifiable to the extent of the limited particulars we are given.

EXAMPLE: I GIVE ONE OF MY DUPLEX AT VG STREET, BANANA ISLAND, LAGOS TO MY FIRST DAUGHTER, DERIN

TAKE NOTE: It is not liable to ademption, the gift can still be satisfied from the testators general estate.

                              FAILURE OF GIFT

GENERALLY, a gift will fail under the following circumstances;

a)      Lapse

b)      Abatement

c)      Ademption

d)      Disclaimer of gift by beneficiary

e)      Vitiating elements

f)       Operation of law

g)      Public policy/ illegality

h)      Conditional gift

i)        Attesting witness being Benefiaciary or his/her spouse is an attesting witness

j)        Uncertainty of the gift

k)      When the property is not owned by the Testator. (Nemo Quod Non Habet)

Actually, some points above are explanatory, so we would just be discussing some major ones.

FOR THE PURPOSE OF MCQ: LAPSE GOES TO ­­­_____ (BENEFICIARY) WHILE ADEMPTION GOES TO _____ (PROPERTY)

1.      LAPSE

Meaning: This occurs where a beneficiary under a will dies before the testator, the gift given to the beneficiary will be said to have failed by lapse.

SO WHAT HAPPENS TO THE GIFT? The gift will revert back to the testator’s estate.  Furthermore, by virtue of section 18 Wills Law Lagos and section 25 Wills Act, where a Will fails by lapse and there is a residuary gift clause, the gift that failed by lapse would fall into the residuary estate. If there is no residuary gift clause, then the gift so failed will fall into intestacy (partial intestacy)

EXCEPTIONS TO LAPSE

        i.            Class Gift: This can either be in the form of; Joint Tenancy or Tenancy in Common. So where a gift is given in either of the two forms, upon the death of one of the persons in the lifetime of the testator leaves the survivors the right to take the whole. See LEE V PAIN

TAKE NOTE

a)       If the gift is given to the members of the class as JOINT TENANTS, on the death of any of them, whether he predeceases the testator or not, the gift will fall to the other surviving members of that class absolutely under the doctrine of survivorship (JUS ACCRESCENDI).

b)     

 HOWEVER, where the gift is given to the members of the class as TENANTS IN COMMON, in which case, on the death of any member of the class, whether he predeceases the testator or not, the gift would fall to his estate or his heirs or his personal representatives.

HOW TO IDENTIFY THE TWO IN A WILL

a)       A class of gift in Tenancy-in-common words of severance are used  ‘in equal share’, ‘in 40 -60 share’

b)       A class of gift in form of Joint tenancy words of severance are not used ‘I give to A and B the house situate at .....’

      ii.            SUBSTITUTIONAL GIFT: This a form of gift in which the interest which the alternative beneficiary is to take is by a prior or the same clause in the will, given to a first beneficiary, and if the first beneficiary could not take the gift, the gift wont lapse but go to the alternative beneficiary.

    iii.            Gif made in settlement of debt owed or promise made by the testator, will not be affected by doctrine of LAPSE even if the beneficiary dies in the lifetime of the Testator. See STEVENS V KING

    iv.            Statutory Exception of SECTION 33 WILLS ACT AND SECTION 24 WILLS LAW: The statute provides that where the beneficiary;

a)      Is the Testator child

b)      the beneficiary predeceases the testator, but dies leaving an issue

Then any gift given to the beneficiary will not Lapse.

      v.          

  RESIDUARY CLAUSE: Section 18 Wills Law Lagos and section 25 Wills Act, both provides that where a Will fails by lapse and there is a residuary gift clause, the gift that failed by lapse would fall into the residuary estate. If there is no residuary gift clause, then the gift so failed will fall into intestacy (partial intestacy).

2.      ADEMPTION

This simply occurs when the gift to a beneficiary ceases to be in existence at the time of the death of the testator. OLIVER V OLIVER

 The beneficiary will lose the gift by ademption in the following ways;

a)      Through the sale or if the gift get lost

b)      Property subject to contract

c)      Property compulsorily acquired by the state (N.B: This depends on the time of acquisition)

d)      As a result of bankruptcy

HOWEVER, Ademption will not occur in the following circumstances;

a)      Change of name

b)      Where the property merely change in form and not in character

c)      Sub-division, consolidation of shares

d)      Acquisition, take-over and  merger

POSER: How can the testator cure Ademption?

The testator could do this by making a substitutional gift. For example;

I GIVE MY DUPLEX AT NO 2 VG STREET, BANANA ISLAND, LAGOS TO MY FIRST DAUGHTER DERIN, IF THE DUPLEX SHALL NOT BE FOUND AT MY DEATH, MY EXECUTORS SHALL FROM MONEY TAKEN FROM MY ESTATE PURCHASE AND DELIVER TO DERIN, A DUPLEX AT BANANA ISLAND

BENEFICIARY OR HIS SPOUSE WITNESSING TO A WILL

GENERALLY, any person can serve as a witness to a will. HOWEVER, 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

f)       Where the witness is subsequently appointed solicitor to the estate and the will contains a charging clause.

TAKE NOTE, It is the gift that will be void and fail, the will still remain valid

TAKE NOTE: The solicitor must inform the testator on the qualification of people that can attest to the will ROSS V COUNTERS

                        REVOCATION OF A WILL

SO, due to the testamentary nature of a will, Mr Chamberlain could actually revoke his will during his lifetime. Revocation can occur in the following ways;

a)      By a duly executed will or Codicil

b)      By destruction

c)      By a duly executed written declaration of intention to revoke the will

d)      Revocation by subsequent valid marriage

e)      Alteration

BY A DULY EXECUTED SUBSEQUENT WILL OR CODICIL: The first rule is that the subsequent will or codicil must be duly executed; it must have complied with the provisions of SECTION 9 WILLS ACT,  And it can either be; (SECTION 20 WILLS ACT AND SECTION 13 WILLS LAW (LAGOS)

a)     

 IMPLIED REVOCATION: This is a situation where the subsequent valid will or codicil does not have a revocation clause, but has provisions inconsistent with the previous will. In this instance the court will read the both will side by side, the part that is in conflict will be resolved in favor of the subsequent will. See DEMPSEY V LAWSON, HENFREY V HENFREY

b)     

 EXPRESS REVOCATION: This is very clear, the intention of the testator is expressed through a REVOCATION CLAUSE in the subsequent will or codicil; stating that he revokes all testamentary depositions previously made by him. HENFREY V HENFREY

BY DULY EXECUTED WRITTEN DECLARATION: The first and major rule for a testator to be able to revoke by a written declaration is that he must comply with the provisions of SECTION 9 WILLS ACT; meaning that the written declaration must be executed as a will. See (SECTION 20 WILLS ACT AND SECTION 13 WILLS LAW, IN THE GOODS OF DURACE)

BY DESTRUCTION: A Testator to be able to revoke his will by destruction two elements must co-exist;

a)      Actual and sufficient destruction

b)      Intention to revoke by destruction.

RULES ON DESTRUCTION

1.      It can be done by burning, tearing or otherwise destroying the will by the testator or by some person in his presence by his direction with the intention of revoking the will. See SECTION 13 WILLS LAW OR SECTION 20 WILLS ACT

2.      If a will is executed in duplicate, the destruction of one copy with the intention to revoke is revocation of the duplicate

3.      Mutilation, burning, tearing beyond recognition, cutting out or scratching out the signature of the testator and the witness are sufficient destruction. GREGORY V GREGORY

4.      Symbolic destruction is not enough. CHEESE V LOVEJOY

CASE LAWS ON DESTRUCTION

CHEESE V LOVEJOY

FACTS: The Testator drew his pen through the lines of the various parts of his will, wrote on the back of it’ ’THIS IS REVOKED’’  and threw it among a heap of waste papers I his sitting room. A servant took it up and put it on the table in the kitchen. It was there until the death of the testator sevn years or eight years later and it was found to be intact the court held that;

      ‘’the will was not revoked, the words or ‘’otherwise destroying’’ in SECTION 20 OF THE WILLS ACT, not being satisfied as whatever testator intended the will had not been injured.

It is quite clear that a symbolic burning will not do, a symbolic tearing will not do, nor will a symbolic destruction. There must be act as well as the intention.

IN THE GOODS OF BRASSINGTON

 The testator in a drunken fit tore up his Will. The court held that the destruction did not revoke the Will as the testator lacked the intention. However, if a testator after tearing up his Will in a drunken state, and when he became sober, does acts that confirm the intention to revoke the Will, there would be a valid revocation.

TAKE NOTE, Where the destruction is to be carried out by another person other than the testator, the following conditions must be complied with;

a)      It must be on the instruction of the Testator

b)      Must be carried out in his presence…..see SECTION 20 WILLS ACT AND SECTION 13WILLS LAW (LAGOS)

REVOCATION BY A SUBSEQUENT MARRIAGE

GENERAL RULE: Every will made by a man or a woman shall be revoked by his or her marriage. SECTION 11 WILLS LAW AND SECTION 18 WILLS ACT

WHAT KIND OF MARRIAGE?

A valid marriage which is contracted under the Marriage Act and also a voidable marriage because it remains valid unless and until it is voided See Re ROBBERTS

Under this head for better understanding, I must ask myself some certain questions;

a)      Was there a valid will

b)      Was there a marriage before the will

c)      Was there a marriage after the will

d)      Was the previous marriage before the will a valid or void marriage

e)      Was the subsequent marriage after the will valid or void

THE EXCEPTIONS TO THIS GENERAL RULE ARE;

1.      Void Marriage: The question what makes a marriage void. By virtue of Section 3 MCA provides that the following are void marriages:

                                i.            either of the parties is, at the time of the marriage, lawfully married to some other person;

                              ii.            the parties are within the prohibited degrees of consanguinity or, subject to section 4 of this Act, of affinity;

                            iii.            the marriage is not a valid marriage under the law of the place where the marriage takes place, by reason of a failure to comply with the requirements of the law of that place with respect to the form of solemnisation of marriages;

                            iv.            the consent of either of the parties is not a real consent because-

a)      it was obtained by duress or fraud; or

b)      that party is mistaken as to identity of the other party, or as to the nature of the ceremony performed; or

c)      that party is mentally incapable of understanding the nature of the marriage contract; or

d)      either of the parties is not of marriageable age.

CASE: METTE V METTE

2.      Where the subsequent marriage is a marriage under native law and custom (including Islamic law), it will not revoke a Will. See section 11 Wills Law of Lagos. 

3. Where the Will is made in exercise of power of appointment, then it will not be revoked by a subsequent marriage of the appointee. See section 11(a) Wills Law; Re PARK 
4. A will expressed to be made in contemplation of a marriage is not revoked by the solemnization of the marriage contemplated. See section 11(b) Wills Law Lagos; section 18(b) Wills Act. See Re LANGSTON; SALLIS v. JONES. HOWEVER, the following conditions must be satisfied:

                                i)            The will must be expressed to be made in contemplation of the particular marriage and the particulars of the marriage must be mentioned. The proviso to s. 11(b) states that the names of the parties to the marriage contemplated are clearly stated.

                              ii)            The marriage must actually take place after the making of the Will

                            iii)            The marriage must take place between the same parties contemplated.

See the Proviso to section 11(b) Wills Law Lagos and the proviso to Section 18(b) Wills Act

5. The Rule in Jadesimi v. Okotie-Eboh. That is, where the subsequent marriage under the Act was between parties who were already under customary law. See JADESIMI v. OKOTIE-EBOH. In that case, the testator had married his wife in 1942 and executed a will in 1947. There was a marriage under the Act by the testator and the wife in 1960 and the testator died in 1966. The issue before the court was whether the subsequent marriage revoked the will. The Supreme Court held that it did not.

REPUBLICATION OF A WILL

Republication of a will – s. 34 Wills Act. It means confirmation or affirmation of the validity and contents of a will. It can be done in either of two ways. Either by

a)      Re-execution of the will with the proper formalities that is in accordance with s. 9 Wills Act;  s. 4 Wills Law of Lagos State, or

b)      A duly executed codicil containing references to the will or codicil republished

Republication is used for an unrevoked will or codicil. There must be clear intention to republish. In Re J C TAYLOR. Republication can be used to confirm the gift given to a beneficiary who witnessed to the will wherein he would not have otherwise benefitted under s. 15 Wills Act.

REVIVAL OF A WILL

. Revival revives a revoked will – brings it back to life. Section 22 Wills Act 1837 provides two ways by which a will or codicil can be revived provided that the Will can still be found/in existence. They are:

·         Re-execution in solemn form, that is with necessary formalities – in compliance with s. 9 Wills Act; or

·         By a duly executed codicil showing an intention to revive the earlier document.

There must be clear intention to revive the revoked will or codicil. The intention must appear on the face of the will or codicil by express words referring to a will or codicil as having been revoked and expressing the intention to revive it. See IN THE GOODS OF DAVIS.

TAKE NOTE: For the purpose of emphasis, revival is for revoked will or codicil, while republication is for an unrevoked will or codicil

CUSTODY OF A WILL

POSER: WHERE SHOULD THE WILL BE KEPT?

1.      Probate Registry

2.      With testator Solicitor

3.      In a Bank’

4.      With a trusted younger brother or friend

5.      Could be kept by the testator in his house or any other place he considers safe.

TO BE CONTINUED!!!!!!! DRAFTING OF THE CLAUSES IN A WILL…….

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