Introduction

It is a settled fact that death is inevitable, hence we may wonder what will become of the wealth and assets which we have tirelessly laboured for during our lifetime. The simple answer is that it would be inherited by an individual or an institution. The issue of inheritance is a significant part of human life and it describes the passing of an individual’s assets upon his or her death. 

One can choose to “speak from the dead” and decide on who inherits what share of his or her property. To do this, one needs to prepare a valid will and the content of such will would be given effect to upon such person’s death. There are also a good number of Nigerians who choose not to write a will, this would mean that a person died intestate and inheritance of such person’s assets would be determined by the relevant laws on intestacy. 

The Wills Act, 1837

In Nigeria, the rules regarding inheritance varies and depends on whether a person died intestate or testate (i.e., leaving a will behind). The Wills Act 1837, a statute of general application which was received by the British and currently forms part of Nigerian law, governs intestate inheritance. The Wills Act applies to states which have not enacted individual wills laws. Where a state has enacted its wills law, the Wills Act will cease to apply in that state and the relevant wills law will apply instead.

Intestate inheritance is governed by the Administration of Estates Law of various states, customary laws of different ethnicity as well as Islamic laws. 

This article is divided in two parts and it compares testate and intestate inheritance, highlighting the legal framework governing both inheritance regimes. We will discuss testate inheritance in part one, while part two will focus on intestate inheritance.

Testate Inheritance

What is a Valid Will?

A will is a document through which a person called a “testator” can absolutely dispose of all or part of the testator’s property during his or her lifetime, but which takes effect upon the testator’s death. Key note should be given to the word “valid”, as an invalid will will generally not be admitted to probate (this concept will be discussed in details below).

What then is a valid will? Section 9 of the Wills Act, as well as the relevant wills laws in different states, provides the basic formalities which all wills must conform with in order to be valid and thus admitted to probate. They are as follows:

1.  The will must be in writing. This requirement doesn’t prescribe any particular form or special substance, thus, any written form electronic or otherwise will suffice. There are exceptions to this rule which applies to soldiers.
2. The will must be signed by the testator (or by another person in the presence of the testator and under the testator’s directions). 
3. The testator signed the will in the presence of at least two witnesses who are present at the same time. This requirement will still be satisfied where the testator acknowledges his or her signature in the presence of two or more witnesses present at the same time. Note that the witnesses must be present at the same time, thus, this requirement won’t be satisfied where the testator signs the will on Monday in the presence of witness A and then acknowledges the will in the presence of witness B on Tuesday. There are exceptions to this requirement which applies to holographic wills
4. Each witness either signs the will or acknowledges his or her signature in the presence of the testator. While both witnesses must be present at the time the testator signs the will, there is no requirement for the witnesses to sign in each other’s presence. What is required is for the testator to be present at the time a witness signs the will and where the witness signs in the testator’s absence, the witness may acknowledge his or her signature in the testator’s presence and this suffices. 

In addition to the above formal requirements of a will, there are other conditions which must be satisfied for a will to be valid. They are:

1. Age: Section 3 of the Wills Act sets the minimum age of a testator at 18 years. There are exceptions to this, which includes soldiers in actual military services and sea men at sea. 
2. Mental Capacity. A testator must be of sound disposing mind at the time of executing the will. This means that the testator should understand that they are making a will and the extent of their property.  
3. Intention. The testator must have intended to make a will. Thus, a will prepared under duress, fraud or undue influence will not be valid. 

Safe Keeping of the Will

After the will is prepared, the document should be properly sealed and waxed. It is important to lodge the will at the Probate Registry, as this guarantees the safety of the will. In addition to this advantage, as provided by Order 62 Rule 2 of the High Court of Lagos State (Civil Procedure Rules) 2019, the original copy of a will must be lodged at the Probate Registry before a grant of probate is issued.

Probate Registry

The Probate Registry is a department of the State High Court and each state in Nigeria will have its own Probate Registry. The testator may lodge the will at the probate registry either personally or through a lawyer by submitting an application together with the accompanying documents and paying the applicable fees. 

Testator’s Death

Upon the testator’s death, the testator’s family and friends will inquire on whether a will exists. The proper place to conduct a search is at the Probate Registry to determine whether a will was lodged. To do this, the interested persons – family, relatives or friends, will apply to the Probate Registry attaching the death certificate of the testator and a copy of the will (where applicable)

Where however a will was not lodged at the Probate Registry, any one in possession of the will must do so promptly.

The will will be read after the burial of the testator upon application to the Probate Registry. The sealed will will be opened in the presence of the interested persons and will be read by an officer of the Probate Registry. 

Who is an Executor of a Will?

Usually the testator will appoint an executor in the will. An executor is a person who will administer the testator’s estate (i.e., the assets and properties of the testator at the time of the testator’s death) upon the death of the testator. Where the will appoints an executor, the executor will apply for a grant of probate, submit the relevant documents and pay the applicable fees.

What Happens where no Executor is Appointed

There are also situations where a will is silent on the appointment of an executor. In this instance, a “letter of administration with will annexed” will be applied for instead of a grant of probate. The Administration of Estates Laws of different states provides for the hierarchy of persons who can apply for a grant of letter of administration. Section 49 (1) of the Administration of Estates Law of Lagos State lists the order for a grant and this is the deceased’s” 

1. Surviving Spouse
2. Child(ren)
3. Parents
4. Siblings
5. Half siblings
6. Grandparents
7. Uncles and aunts
8. Step uncles and aunts
9. Creditors
10. Administrator General

Only individual within this category can apply for a grant of letter of administration and someone in a lower hierarchy cannot apply when a person in a higher hierarchy is still alive and willing to apply for a grant. Thus, the siblings of the deceased cannot apply for a grant of letter of administration (LOA) when the deceased spouse is still alive and willing to apply for a grant.

Effect of a Grant of Probate or Letter of Administration

A grant of probate or “Letter Of Administration with will annexed” gives the executor or administrator (in the case of an LOA) the authority to deal with the testator’s property in accordance with the stipulations of the will. Thus, the executor or administrator will give effect to all gifts and devices as contained in the will. In addition, the executor or administrator will be able to present the grant of probate to the testator’s bank account to withdraw or transfer money from the bank account; to validly transfer legal title of the testator’s property (including land); to pay off the testator’s debts and also file a case in court and/or be sued on behalf of the testator’s estate. 

Limitation of “Letter of Administration with Will Annexed”

We should note that the grant of probate or “LOA with will annexed” is only effective within the jurisdiction of the Probate Registry which issued the grant.

Thus, where the grant was issued by a Probate Registry in Lagos State, the authority of the grant will only apply to the testator’s properties in Lagos State. 

There are cases where a testator has properties in different states in Nigeria, in such a situation, the executor(s) or administrator(s) will need to submit an application for the “resealing of probate or letters of administration” to the Probate Registry in each state where the testator has property. The applicant shall submit a copy of the grant, the will and other applicable documents, as well as evidence of payment of the applicable fees. The procedure of a resealing is stipulated in the Probate (Re-sealing) Act Cap p31 Laws of the Federation of Nigeria 2004 as well as the Civil Procedure Rules of the High Court of the relevant state.

Benefits of a Will

There are notable myths surrounding making a will. Some believe that they are too young to write a will, while others may feel they do not have enough wealth or property to make a will. To some the mention of a will, ignites the fear of imminent death and to others, they may feel that writing a will takes so much time.

As stated above, the only person who is too young to make a valid will is anyone below the age of 18 years, and there are exceptions to this as stated above. In addition, unless a person has a very complex estate, it doesn’t take much time to prepare a will. The will only needs to comply with the formalities highlighted above to take effect.

Despite the misconceptions surrounding making a will, the benefits of writing a will are numerous and a few are highlighted below:

1. Freedom to determine how property will be disposed of and shared after the death of the testator. Where a person dies without a will, the property may be disposed of in accordance with the doctrines of customary laws.  A will allows the testator to circumvent the application of customs and traditions which does not align to the values of the testator. 
2. Appointment of an Executor, as stated above.
3. Protection of infants and dependents. The testator may dispose his or her properties to individuals who would not be entitled under customary law or statutory intestacy laws. The testator may also by a will appoint guardians for the infant children of the testator.
4. Avoid numerous and unending lawsuits. A valid will which has been admitted to probate is a clear proof of the intention of the testator. Where this exists, there will be little or no need to spend time and expenses in court to determine the law, practice or custom which would govern the disposition of the deceased property, as the executors will give effect to the clear terms of the will.   

As stated above, this article is divided into two (2) parts and we will discuss inheritance when a person dies without a will (intestate) in our article next week.