The third part of the series on wills and succession.
CAPACITY TO MAKE A WILL
Under all the applicable laws, including customary law, every person has the capacity to make a will. Of course to this rule there are some exceptions. These are:
- Infants or Children
Under the general law, children or infants cannot make a valid will. This is to be expected as a minor lacks the capacity to enter into a valid contract except in extraordinary circumstances.
- Persons of Unsound Mind
Since a will is the express intension of the testator, it is a given that s/he must of necessity possess a sound mind and memory to enable him or her understand the nature of the commitments. Therefore persons of unsound mind or with mental deficiencies cannot make a valid will irrespective of age.
The unsoundness of mind of a testator would clearly invalidate his or her will. The relevant time for soundness of mind is the time at which the will was made. A will made before the testator becomes insane or during a lucid moment remains valid even if the testator subsequently becomes of unsound mind. There is always a presumption that the testator was sane and capable when the will was made. It therefore rests on the person challenging the will to prove the lack of capacity on the part of the testator on grounds of insanity.
- Blind or Illiterate Person
A blind person or an illiterate person can make a valid but with a lot of caution when the will is to be executed. It must be executed strictly in accordance with the law i.e. Illiterates Protection Law.
The will must be interpreted to the illiterate person in the language s/he understands and it is only when s/he is in agreement with the contents that his or her thumb impression should be affixed in the presence of two witnesses.
In the case of a blind person, care must be taken with regard to the execution so as to eliminate fraud.
- Fraud or Coercion
Proof of fraud or coercion in the execution of a will invalidates it. In a situation where the intention of the testator was changed during or even after execution of the will, this would amount to fraud. If this can be proved, the will would be declared void. An example of this is where a wife refuses to give her husband food with a view to forcing him to give his property to her in his will or for the husband to dispose of his assets in the manner prescribed by the wife. The will in this case would not be valid if the coercion can be established.
- Married Women
Under customary law, it was not easy for married women to make wills. Under Section 8 of the Wills Act 1837, married women lacked testamentary capacity, but this has been altered by Section 1 of the Married Women Property Act 1882 and Section 3 of the Married Women Property Act 1893. Both statutes are statutes of general application in Nigeria. The Wills Law 1958 and Wills Law of Lagos State do not limit the testamentary capacity of married women.
Mrs. Akinlawon SAN obtained her LLB from the University of Lagos in 1980. She attended Nigerian Law School and was called to the Nigerian Bar in 1981. She holds a Master’s Degree (LLM) and was elevated to the rank of a Senior Advocate of Nigeria (SAN) in August 2011.