If you’ve ever been around lawyers, you might have heard them say the Latin phrase “Nemo dat quod non habet,” which means you can’t give something you don’t own. This principle is crucial when it comes to writing a will.
In general, a person creating a Will, known as a Testator, can leave behind anything they legally own. This includes real estate, personal possessions, heirlooms, and even intellectual property like a collection of cooking recipes. It also includes Liquid assets and employment benefits like pensions, Group Life Insurance, and co-operative contributions. However, for the bequest to be valid, the Testator must genuinely own the property they want to pass on.
Consider the case of Thompson Oke v. Robinson Oke, where a Testator built a house on his wife’s family land with her permission. In his will, he left this house to his sons from another woman. However, the eldest son from his first marriage contested this because the land belonged to his mother, not his father. The court ruled that a Testator cannot give away property through a Will if they didn’t have ownership rights over it.
Accordingly, a Testator cannot legally dispose of property that is under dispute in court. In the case of Bamgboye v. Olusoga, the court declared that property involved in a legal dispute, known as “lis pendens,” cannot be validly transferred while the dispute is ongoing.
This underscores the importance of ensuring that any assets intended for bequeathing through a will are not subject to legal disputes before the Testator’s passing.
For those planning to create a Will, conducting due diligence to confirm actual ownership of the property and ensuring it is not subject to any legal disputes is essential to a successful estate plan.
ASSETS THAT CAN ONLY BE BEQUEATHED THROUGH A WILL
Anything of value can be bequeathed through a Will. This includes:
- Pension Contributions: According to Section 8 of the Pension Reform Act 2014, Pension Fund Administrators are required to pay the funds in a deceased employee’s Retirement Savings Account to the beneficiary mentioned in a valid Will admitted to probate. This means that without a proper Will, beneficiaries might struggle to access these pension contributions.
- Shares and Stocks: Section 155(a) of the Companies and Allied Matters Act specifies that when a shareholder passes away, only a legal personal representative can claim ownership of the deceased’s shares. A legal personal representative is either an Executor named in the Testator’s Will, or an Administrator appointed through Letters of Administration. Without a Will, beneficiaries will be unable to access stocks especially because obtaining Letters of Administration can be a lengthy and complex process.
- Monies in Bank Account: Nigerian banks have a strict policy that requires the presentation of a valid Will admitted to probate before granting access to a deceased person’s bank account. Without a Will, relatives seeking access to the deceased’s bank account must go through the process of obtaining Letters of Administration.
MISCONCEPTION OF NEXT-OF-KIN
There is a common misconception in Nigeria that designating a Next-of-Kin on forms related to banks, pension fund administrators, or other institutions automatically means that person will inherit the assets upon the owner’s death. This misconception is incorrect from a legal perspective.
A Next-of-Kin is distinct from a beneficiary. In the legal case of Joseph v. Fajimilehin, the court clarified that a Next-of-Kin serves two main purposes:
- To identify the nearest blood relative to an individual.
- To provide a contact person to be notified in case of any emergencies or life events.
A Next-of-Kin does not imply or guarantee inheritance of a person’s wealth. This misconception can be particularly problematic when it comes to assets that can only be accessed through a valid Will.
For those considering other estate planning options, such as trusts, it is crucial to consult with an expert to ensure that assets that require a Will for valid bequest are not mistakenly included.
NB: For expert advice on setting up a Will, visit UTL Trust Management Services Limited at https://utltrustees.com/our-services/trust-services/private-trust/trust-administration/