Common Pitfalls in Will Writing

Carpenter? Check. Electrician? Check. Legal counsel? No check.

The average Nigerian has professionals on speed dial for emergencies in daily living. Unfortunately, this life-saving practice is not usually carried on to other weighty matters.

Contrary to popular belief, the ability to read and write does not translate to an automatic understanding of legal documentation.

Just as purchasing and consuming medication without medical supervision could prove fatal, self-help in drafting legal documents will usually lead to devastating results.

A particular area in which Nigerians fall into gigantic financial and legal sinkholes is in Will writing. Unlike other legal documents which can be corrected later on, a Will usually remains untested until the owner passes away, at which point it is too late for the Testator to cure any defect.

Here, we explore two of the most common pitfalls littering Will writing in Nigeria.

1. PARTIAL INTESTACY
   A Partial Intestacy occurs when an individual leaves a Will which overlooks certain parts of their Estate. This may happen for several reasons.
   1. Subsequent Purchases
      It is common for a Testator to purchase property after making a Will, and then forget to include the newly acquired property in the Will. In such a situation, the Will would not cover all owned property.
   2. Death of Beneficiary
      Partial Intestacy may also occur where a beneficiary of a Testator’s Will predeceases the Testator. If the Testator neglects to amend the Will and appoint a substitute beneficiary, the bequest given to the initial beneficiary would fail when the Testator passes and this would fall to partial intestacy.
   3. Lack of Executors
      The legal challenge of partial intestacy may also arise where the Testator does not have executors to administer the Estate upon demise. This may occur when:
      • No executors were named in the Will,
      • The executors named predeceased the Testator without replacement, or
      • The executors refuse to serve in that capacity for any reason whatsoever.

   For all instances of Partial Intestacy, it would be impossible to administer the Will (or the part of the Estate not covered under the Will) without approaching the Probate Registry for Letters of Administration with the Will annexed. This process is the same as the general one for obtaining Letters of Administration; stressful, time-consuming and better avoided.

   Professional Will writers know how to avoid the hassles of Partial Intestacy by including a residuary clause in the Will. A residuary clause makes general provision for any property of the Testator not specifically disposed of in the Will. This ensures that subsequently acquired properties can be disposed of in accordance with the general instruction in the residuary clause. Bequests that fail as a result of a deceased beneficiary are also covered under a residuary clause.

   The lack of executors to administer an estate may be avoided by nominating a professional executor (such as a Trust Company) to administer the estate. Professional Trust Companies, not being individuals, are held to high industry and legal standards for executing their obligations.

2. IMPROPER EXECUTION AND ATTESTATION
   Unlike other legal documents, the law requires that a Will be signed and attested by witnesses in a particular manner. There are two ways in which a Will may be executed and attested:
   1. The Will must be signed by the Testator in the presence of at least two witnesses, after which the witnesses would then affix their own signatures beneath the Testator’s, or
   2. The Testator instructs someone to sign on their behalf and acknowledges this in the presence of at least two witnesses, after which the witnesses would then affix their signatures.

   This order of executing a Will is so strict that a failure to comply with it would render the Will invalid. The court affirmed this principle in the judicial decision of Nelson v. Akofiranmi.

   Where a Testator is blind or illiterate, Section I of the Illiterate Protection Laws in most Nigerian states mandates that the Will include a Jurat, which is a verification clause stating that the content of the document has been read to the Illiterate Testator in a language that they understand. The jurat must also be signed by the Illiterate Testator.

   A sample occurrence is the judicial decision of Okelola v. Boyle, where the Will of the Testator included an Illiterate Jurat which was not signed by the Testator. The court held that the Will was invalid. Unfortunately, the Testator had passed and was thus unable to effect necessary steps to validate the Will according to his wishes.

This is only a tip-of-the-iceberg explanation of the many things that could go wrong when navigating the various technicalities of Will writing in Nigeria.

Avoiding the common pitfalls that lead to invalidation of Wills in Nigeria necessitates consultation with a Will writing expert. Only qualified and certified solicitors can be trusted to provide professional assistance with drafting a Will in Nigeria.

Are you thinking what we’re thinking?

NB: For more details on Will writing, visit UTL Trust Management Services Limited at UTL Trustees – Private Trust.