The caption of this article was inspired by a 2013 movie (12 years a slave) where an African man who was kidnapped and sold into slavery in the US constantly struggled to regain freedom for 12 years. While enacting most Nigerian laws, we continue in our somewhat ‘slavish’ adherence to some English tenets which are incompatible with our culture and in some cases, we appear indifferent about gaining legislative freedom from some of our inherited or received English legal principles.

This article focuses on how a certain provisions of the ‘inherited’ and unrevised succession law in Lagos State interferes with the constitutional right to private and family life. I have not checked the Wills Laws of other States to confirm whether they have similar provisions, but section 11 of the Wills Law of Lagos State intriguingly provides that: “Every will made by a man or a woman shall be revoked by his or her marriage (other than a marriage in accordance with Customary Law) except…”

This provision was imported or inherited from the English Wills Act 1837 – a period of 186 years ago. For the avoidance of doubt, section 18 of the Act provides that: “Every will made by a man or woman shall be revoked by his or her marriage…”

For proper context this, this provision was enacted as a shield to protect women from the medieval English culture that automatically converted women’s properties into their husbands’ upon marriage. Dr Juliet Brook, an associate professor at the University of Reading, elaborately captures the historical reasoning behind the rule thus:

“At the time of the enactment of the Wills Act 1837, the status of a woman changed fundamentally on marriage. She became a feme covert, with her property becoming that of her husband. Following her marriage, she could only make a will of personality if her husband consented to its terms, and any will of land made by a feme covert was void by statute. Due to the much-reduced property ownership
rights that came with the status of being a feme covert, it was not possible for a will made prior to her marriage to continue as a valid will after the marriage and a woman’s will was therefore revoked on marriage.” (See Brook, J. Automatic revocation of a will on marriage – a rule that is past its use-by date? Private Client Business, 2024 (1). pp. 20-27).

Happily, the United Kingdom is currently engaging stakeholders on the necessity to review the oppressive provision that has now become a tool of predatory marriages. (see Law commission considers wills and predatory marriage – does the law need to change? <https://www.lexology.com/library/detail.aspx?g=8df64189-bc08-4b30-8dbb-350dfae768fd)

The privacy problem with section 11 of Wills Law of Lagos State

Making a will is a personal affair covered by the right to private and family life under section 37 of the Nigerian Constitution. The Court of Appeal has elaborately interpreted section 37 of the Constitution in Nwali v EBSIEC (2014) LPELR-23682(CA) to cover a person’s plans, choices, desires, relationships, material possessions and family life. Hence, the plan or desire to choose whoever to bequeath one’s personal properties to, upon one’s death is a personal affair covered by the right to privacy.

Privacy being a constitutional right, towers above the Wills Law enacted by the Lagos House of Assembly which tends to interfere with the enjoyment of freedom to dispose one’s properties just because the person marries under the Act. In my opinion, the provision of section 11 interferes with the right to plan one’s succession by assigning personal properties to beneficiaries of one’s choices upon

The right to private and family life inherently protects an individual’s autonomy over their personal affairs, choices and decisions. These decisions including plans relating to property, inheritance, and the disposition of one’s estate after death.
Hence, a provision that allows the automatic revocation of Will by marriage undermines the testator’s autonomy. It essentially dislodges an individual’s desire to control the distribution of their estate as they please.

The making of a Wills is usually informed by many reasons, one of which may be the desire to keep family members’ closely-knit by designating certain properties as family properties. Consequently, the automatic revocation provided under section 11 will force testators to rewrite their Wills upon marriage, which may not necessarily reflect their uninfluenced intentions. This is particularly instructive where someone contracts a marriage in circumstances where they do not intend to alter the provisions of their existing Will. The revocation provision forces a change to this personal and private prearrangement without the individual’s active decision, thereby violating their right to manage their personal affairs according to their wishes. The provision represents an unnecessary and for the most part, an unjustifiable intrusion by the state into a private matter, as it essentially dictates that an individual’s personal decisions regarding the distribution of assets must be modified by a life event (marriage) even if the individual does not wish to do so. This reduces the individual’s ability to make decisions about their estate in line with their desires and preferences.

Conclusion

The provision of section 11 that automatically revokes a Will upon marriage constitutes an unpalatable disruption of an individual’s right to private and family life. By undermining the autonomy of individuals in managing the distribution of their estates, this provision disregards personal wishes and the right to make decisions regarding one’s property without undue interference from the state through legislation. The automatic revocation forces individuals to modify their estate plans, even when they may not intend to do so, disrupting carefully considered arrangements made prior to marriage. This is the case for learned testators but in the case of the undiscerning, the consequences are worse upon their demise.

While the intent behind this provision may be to protect the interests of spouses and ensure equitable distribution of assets, it fails to account for the diversity of family structures and the nuanced personal nature of estate planning. By imposing a blanket rule on subsequent (statutory) marriages, it undermines the principle of personal autonomy – an essential interest protection by the constitutional right to privacy. Ultimately, the automatic revocation of a Will by marriage is a measure that requires careful re-examination to balance the legitimate interests of protecting spouses with the fundamental right to control one’s personal and familial affairs. Legal frameworks should aim to uphold the integrity of individuals’ decisions while also providing mechanisms for fair and equitable treatment of spouses, ensuring that the principles of private and family life remain respected and protected.