The fourth part of the series on wills and succession.
FORMAL REQUIREMENTS OF A WILL
For a will to be valid, it must comply with the formalities stated in all the relevant laws. The following formalities are obligatory:
- The will must be in writing. Although the Law requires that a will must be in writing and not oral. No particular form of writing or with any special substance is prescribed.
- The will must be signed by the testator (the person who has made a will or given a legacy) or by someone else in the presence of the testator and at his or her direction.
- The testator’s signature shall be made or acknowledged by the testator in the presence of two witnesses.
- The two witnesses who must be present at the same time must then attest and subscribe the will in the presence of the Testator, such acknowledgement must, however, be express or implied.
- No alternations made to the will after execution shall be valid or have any effect except such alteration shall be executed in the same manner the will was executed.
REVOCATION AND REVIVAL OF WILLS
An earlier will may be revoked by a later will as long as the formal requirements are observed in the latter case. Such revocation may be effected by an express clause or by necessary implication from the wording of the will.
An implied revocation occurs where the provisions of the later will are inconsistent with those of the earlier one. Thus, where the testator in an earlier will gave specific property to X and in a subsequent will bequeathed the same item to Y, the latter, revokes the former even though no specific words to that effect were used.
A testator or by some person in the testator’s presence under his or her direction with the intention of revoking the will may burn, tear or otherwise destroy the same. The important elements to note are: –
- The destruction must be effected by the testator personally or by some person in the testator’s presence under his or her direction.
- The destruction must be with the clear intention to revoke the will. Thus if the destruction was effected when the testator is not in control of his mental faculties owing to the influence of alcohol or insanity, s/he cannot be said to possess the necessary intention.
Section 15 of the Wills Law provides that “Every Will made by a man or woman shall be revoked by his or her marriage (other than a marriage in accordance with Customary Law)”
There is a statutory exception to this rule. This exception is where a will was made in exercise of a power of appointment when the state thereby appointed would not in default of such appointment, pass to his executor or administrator or other person entitled on intestacy. Consequently, where the exercise of a power provides that in default of appointment the property is to devolve as on intestacy.
A revoked will can only be revived by the re-execution thereof or by a codicil duly executed showing an intention to revive the Will.
PRIVILEGED WILLS
Privileged wills are those which are not required by law to comply with the requirements both as to capacity and form. Section 276 of Armed Forces Act Cap A20 Laws of the Federation of Nigeria provides.
“1. A Will made by a person subject to service law under this Act shall be valid for disposing of any money or personal property which is due or belongs to him at his demise if it is in writing and signed or acknowledged by him in the presence of, and in his presence attested by the witness, being an officer of the forces of any government medical officer.
- A Will made under subsection (1) of this section shall be deemed well made for the purpose of being admitted to probate,” …
Similarly, Section 9 of the Wills applicable in Lagos, Ogun, Oyo, Osun, Ondo, Ekiti, Edo and Delta States provides that, any soldier being in actual military service or any member or seaman being at sea may dispose of his personal estate without complying with the requirements as to capacity and form.
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.