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NATIONAL YOUTH SERVICE CORPS (NYSC)
AONE DAY
CAPACITY BUILDING WORKSHOP/TRAINING
By The CORP MEMBERS LEGAL AIDS SCHEME
Of The NATIONAL YOUTH SERVICE CORPS
(NYSC), AKWA IBOM STATE.
THEME: Strengthening The Freedom
of Testamentary Disposition
Presenter: Onyekachi Wisdom Duru Esq
Venue:
Federal Secretariat, Uyo, Akwa Ibom State,
Nigeria.
CONCEPTUAL CLARIFICATIONSWill
A Will is an instrument by which A person makes a disposition of his real (devices) and personal property (legacies), to take effect after his death (testamentary) and which by its own nature is ambulatory and revocable during his life time.
Codicil
A codicil is used to
amend, revive, revoke
or republish a will. It is
supplements a will or
repeals same. It must
comply with same
format for a valid will.
NATURE OF A WILL
It is a testamentary document (takes effect only
upon the death of the testator).
It is ambulatory (can be revoked during the life
time of the testator).
It may be made by the testator himself or any
legal practitioner appointed by him.
TYPES/CLASSIFICATION OF WILLS
Statutory Will:
The making of this type of will is regulated by law
Nuncupative Will:
This is a Will made orally or by the spoken word. This
type of Will applies principally to customary law.
Privileged Will:
This type of Will is made by a special class of people
who by the nature of their profession are exposed to
near death experiences. Examples of these classes of
persons include sailors, airmen, soldiers, etc.
TYPES/CLASSIFICATION OF WILLS CONTD
Holographic Will:
This is a Will made in the handwriting of the
testator.
Pre-nuptial/ Ante-nuptial Will:
As the name implies, this is a type of Will made
before or after marriage, respectively.
Conditional Will:
This a Will made subject to a condition subsequent.
IMPORTANCE OF WILL MAKING Opportunity to exclude the rules of inheritance
under customary law or Administration of Estate
Law;
Opportunity to appoint ideal person to manage
the estate;
Opportunity to give instructions regarding
burial;
Opportunity to guarantee cheaper
administration of estate;
IMPORTANCE OF WILL MAKING CONTD.
Opportunity to give gift(s) to charity,
mistresses, illegitimate children, etc.;
Opportunity to disinherit anybody you
wish to;
Opportunity to appoint guardian(s) fit for
infant dependant(s); and,
Opportunity to confer special powers on
executor(s) appointed.
PERSONS THAT CAN MAKE A WILL
A person of full age (above 18years),
whether male or female, married or
unmarried.
A person with sound mind and memory
(including sick and old persons).
Blind persons, illiterates and privileged
persons, such as seamen, soldiers and
pilots.
MODES OF EXECUTING A WILL
A Will may be executed in any of the following ways:
1 The testator may sign the Will himself in the
presence of at least two witnesses present at the
same time who must also attest to the Will; or
2 The testator may request and direct another
person to sign for him and he acknowledges the
signature in the presence of at least two witnesses
present at the same time, who must also attest to
the Will; or
MODES OF EXECUTING A WILL CONTD.
3 The testator may have a pre-signed Will at some
other time and acknowledges the signature in
the presence of at least two witnesses present at
the same time who must then attest to the Will.
TAKE NOTICE that the witnesses must sign after
the testator’s signature. Also, the witnesses need
not sign in the presence of one another, but they
must sign in the presence of the testator.
EFFECT OF BEING A WITNESS AND A BENEFICIARY IN A WILL
If a witness or his spouse is a beneficiary in a will,
they gift or legacy to such a witness or his or her
spouse will fail subject however to the following
exceptions;
1. Privileged Wills;
2. Where the marriage between the witness and the
spouse beneficiary was after the making of the
Will;
EFFECT OF BEING A WITNESS AND A BENEFICIARY IN A WILL
CONTD.3. Where the witness is merely a trustee of the gift;
4. Where the gift to the beneficiary is subsequently
confirm in a Codicil, not attested to by the
witness beneficiary;
5. Where there are two or more witnesses besides
the witness beneficiary; and,
6. Where the gift was made in settlement of debt.
TESTAMENTARY CAPACITY TO MAKE A VALID WILL
Capacity refers to the possession of sound
disposing mind and memory at the time of
giving instructions to a Solicitor regarding will
making and at the time of execution of the
will.
Physical ailment or bodily infirmity should not
be confused with sound disposing mind and
memory.
TESTAMENTARY CAPACITY TO MAKE A VALID WILL CONTD.
Requisite testamentary capacity connotes the following;
1. The ability of the testator to understand the nature of the Act of making a Will and its effect;
2. The ability of the testator to understand the extent of the property he is disposing;
3. The ability of the testator to appreciate and recollect who are the objects of his gifts (his beneficiaries) and the manner in which the property is to be shared between them.
FACTORS THAT VITIATES TESTAMENTARY CAPACITY
1.Lack of knowledge
2.Fraud
3.Mistake
4. Undue influence
5. Suspicious circumstances
6. Delusion
LIMITATIONS TO TESTAMENTARY FREEDOM
Take Notice that limitations/restriction affects the
dispositions in the Will but not the validity of the
Will. The following restriction/limitation apply to
Will making in Nigeria;
1. The testator cannot freely dispose of a property
which is subject to customary law and
disposable under customary law
LIMITATIONS TO TESTAMENTARY FREEDOM CONTD.
2. Persons subject to Islamic law can only dispose of
one-third of their estate freely, the remaining two-
third must be disposed following Islamic law.
3. A witness cannot be a beneficiary, except the case
falls under the exceptions.
4. Reasonable financial provision for dependants –
child or brother of the disease maintained by the
latter during his life time.
TYPES OF LEGACY/GIFTS2.Specific legacy: This is a gift with
full description. It is a given by the use of ‘My’.
It is subject to ademption, that is, the non existence of the gift as a result of sale, destruction, loss, compulsory acquisition, contract of sale, alteration in character, etc.
2 General Legacy: This is to be satisfied
from the general estate.
It is granted by the use of ‘a’ and is not subject to ademption.
However, this type cannot be identified, since it is a generalized rather than a particular gift.
TYPES OF LEGACY/GIFTS CONTD.
3. Demonstrative Legacy:This is gift of money to be satisfied from a particular source and is granted by the use of the word ‘from’. It is not liable to ademption.
4.Pecuniary Legacy:This is strictly a monetary gift.
5.Residuary Legacy:This is the leftover of the estate. Failure to provide for a residuary clause in a Will result in partial intestacy.
SOURCES OF RESIDUARY LEGACY
1.Property acquired by the testator after the Will.
2.Property acquired by the estate after the testators death.
3.Property not dispose or devised by the testator in the Will.
4 Gift that failed and gift that lapsed.
LAPSE OF GIFTS
This occurs when a beneficiary pre-
deceases a testator. It is subject to the
following exceptions;
a.Substitutional gifts;
b.Declaration against lapse
c.Statutory exception especially in cases
where the deceased beneficiary had a
surviving issue during the life time of the
deceased;
d. Class gifts; and,
e. A gift made in discharge of moral
obligation such as fulfillment of an
obligation to pay debt.
FAILURE OF GIFTS
A gift may fail as a result of;1.Ademption (that is the non-existence
of the gift/legacy as a result of sale, destruction, alteration, etc.);
2.Causing of the death of the testator by the beneficiary;
3.Giving of a gift to a witness outside the exceptions;
4.Abetment (disposition in settlement of liability of the estate)
5.Public policy6.Non fulfillment of conditions attach
CONCLUSION
A Will is a very important document
of title.
It is very important for searches to
be conducted in the Probate
Registry before any Conveyancing
Transaction involving Wills.
Confidentiality is a concern in Will
making.
PLEASE MAKE A WILL
THANK YOU FOR YOUR ATTENTION