What NOT to Put in a Will

Clothes, houses, money that your neighbor borrowed and is yet to return…

When you really think about it, there are different classes of assets. Trying to decide what to factor in when thinking about Estate Planning could give anyone a headache.

Fortunately for you, we can use our 55+ years of experience in Estate Planning to help you understand the basics! In this article, we will explain what not to put in a Will, what to absolutely put in a Will, and clear up a misconception that has hurt the wishes and loved ones of countless asset owners.

Let us begin with a story.

Once upon a time, a Testator got his wife’s permission to build a house on her family’s unpartitioned land in Warri. He then willed the house to his younger sons by another woman. In due time, the eldest son of the Testator’s late wife challenged the bequest on the ground that his land belonged to his mother and not his father. The court, in this judicial decision of Thompson Oke v. Robinson Oke, supported the eldest son and invalidated the bequest.

The reason?

Nemo dat quod non habet, meaning ‘no one gives what they do not have’. Because this is the position of the law, the first thing not to put in a Will is another person’s lawful property.

Similar to the first, another pitfall to be wary of in Estate Planning can be illustrated by a real-life story.

In what is arguably the most litigated case in Lagos, an aspiring property owner attempted to take ownership of a piece of land which she had ‘purchased’. What nobody told her was that the land in question was under dispute (or the subject of a pending case) in court. After examining this case of Bamgboye v. Olusoga, the court ruled that the defendant’s claims to the land were void and of no effect.

The reason?

The doctrine of lis pendens, which prevents the effective transfer of any property in dispute while the dispute is ongoing. Therefore, the second thing not to put in a Will is any property under dispute, as such property cannot be legally transferred until the dispute is resolved.

How does one even begin to discover the status of an asset, you ask? Fear not! For expert opinion that leaves no stone unturned in Estate Planning and more, visit UTL Trust Management Services Limited.

Now that we have fulfilled our first promise to you, time to tackle the second.

 

What You MUST Put in a Will

Although any legally owned property can be included in a Will, certain properties can only be transferred to beneficiaries without hassle via a Will. What assets fall within this class?

1. Pension ContributionsDid you know that by simply working according to certain terms, a Nigerian is entitled to millions of Naira in their RSA (Retirement Savings Account)?Plot twist. Section 8 of the Pension Reform Act (2014) mandates that Pension Fund Administrators only pay the amount in a deceased employee’s RSA to beneficiaries if they have been listed under a Will admitted to probate.This means that after all your hard work, loved ones will not see a dime of those millions if you do not transfer it to them via a valid Will!
2. Shares and StocksThere are only two legal ways to transfer the shares and stocks of a deceased person to their loved ones.The first is the easy way. This way, an executor named in the Will of the deceased acts as a ‘legal personal representative’ to oversee the transfer.Section 155(a) of the Companies and Allied Matters Act provides that when a shareholder in a company passes away, the only person(s) recognized by the company as having any title or claim to the deceased’s interest in the shares shall be a legal personal representative (whose identity has been established in numerous judicial decisions, such as Ugu v. Tabi, to refer to an Executor named by the Testator in a Will). End of story.

   The second way is the hard way. Correction. The EXTREMELY hard way. In the absence of a valid Will, the deceased’s loved ones must go through the long and gruesome process of obtaining Letters of Administration. The process can take several decades. It is not advised.

3. Funds in Bank AccountsNigerian Banks maintain a strict policy of not giving anyone access to a deceased’s bank account without a valid Will admitted to probate.Their authority for maintaining this policy is Section 1 of the Wills Act, which allows anyone of legal age to dispose of any kind of property (including funds in bank accounts) to which they are entitled under law through a Will.Without a Will, any loved one trying to access the funds you intended for them would have to obtain Letters of Administration under the Estate and Administrative Law of the relevant state. Remember, EXTREMELY difficult.

Now that we have settled this, time to discover a shocking truth for Nigerians.

 

Fact Check: Next of Kin

Think about it.

When you hear ‘Next-of-Kin’, does your mind go to the belief that as soon as you fill a form in the bank or any other institution, the person listed will automatically inherit your assets if anything should happen to you?

If so, we are glad to announce that you have now been freed from such false beliefs. It has no basis in law.

In actual fact, a next-of-kin has a different meaning from that of a beneficiary. In the judicial decision of Joseph v. Fajimilehin, the court held that a next-of-kin simply means either or both of two things:

1. The nearest blood relative to a person; and
2. A contact person to be notified in the event of any eventualities of life.

That is all that a next-of-kin is relevant for. A Next-of-kin does not in any way imply a beneficiary, nor does it connote a person that would automatically inherit a person’s wealth.

Remember those assets which can only be transferred through a Will?

Next-of-Kin alone will not give access to your loved ones.

Are you perhaps thinking of using a Trust to take care of some assets?

Next-of-Kin alone will not give access to your loved ones.

Do you intend to fend for vulnerable loved ones with the fruits of your labour?

Next-of-Kin alone will not give access to your loved ones.

Know this and know peace.

 

If such a serious misconception is so popularly believed, who knows what other errors can hamper seamless Estate Planning for you?

UTL Trust Management Services knows, and we know what you can do to have peace of mind in Estate Planning.

NB: For expert advice on setting up a Will, reach UTL Trust Management Services Limited here.