A wise man once said “everybody
wants to go to heaven, but nobody wants to die
”. I often find that the way
many people deal with the subject of death ironic; many children find it
difficult to discuss the topic with their parents, and the same sometimes
applies to spouses.

I cannot stress enough the
importance of estate planning, and its role in reducing the stress associated
with the death of a loved one. There are several estate planning techniques.
These include: life insurance policies, trusts, gifts, retirement pension plans
and wills.

This article shall focus
on the importance of making a valid will.

Whose Will Is It
A person is said to have
died ‘intestate’ where he has failed to make a valid will during his
lifetime – as well as also failing to use any other legal means to transfer his
property to his heirs or next of kin. Where this is the case, the applicable
state laws will determine what happens to the estate of the deceased. This may
be either customary or statutory laws.

Customary practices vary
from region to region. I am sure everyone has watched that Nollywood movie
where the husband dies and family members immediately come in to take
possession of all the guys properties, kicking out his wife and infant children
in the process.

A friend of mine is from a
very wealthy and very large Nigerian family. His father has many children with
several women. On day we were chatting and I randomly enquired if he had ever
asked his father about having a will, his reply was “so that he can insult
me and say I am the greedy child that is trying to kill him because of property
abi…. please I cannot ask him that kind of question

I found it quite strange.
The need to have such a conversation was glaring in light of the fact that it
was a polygamous home; yet, most people would rather not have the conversation
because it made them feel “uncomfortable”.

The blunt truth is, even
the most united siblings are likely to bicker as a result of a wealthy parent
dying intestate. This is then amplified where there are many children from many
women, all of whom have presumably equal rights to the estate.

A will is a very important
estate planning tool, as it determines who inherits assets and valuable
properties upon death. Aside from this, and more importantly, it caters for who
will take care of orphaned children, if any, and exactly how the burial is to
be arranged. Many people do not appreciate the damaging effect on the family if
a loved one dies intestate; aside from discrepancies as to the distribution of
the deceased’s personal estate, I have witnessed an instance where the family
of the deceased disagreed as to where they should bury their loved one, country
of origin or country where all of the children and grandchildren resided.

Requirements for A
Valid Will
The following are key
elements to a valid will: –

1. The person making the
will must be of the legal age to do so, various state laws prescribe the
applicable ages, for lagos state this is 18 years. However, exceptions are
applicable to seamen, soldiers and mariners;

2. The will must be in
writing, however oral wills for seamen, soldiers and marines are valid;

3. The testator must be of
sound mind, both at the time of giving the initial instructions and at the time
of executing the will;

4. The testator must have
acted of his own free will in making the will, evidence to the contrary, will
render the will invalid;

5. The document must be
signed by the testator personally, or may be signed by another party in the
presence of the testator and under the testators direction, rules applicable to
illiterates and severely disabled persons will apply here; and

6. The testators signature
must be acknowledged by 2 witnesses, who in turn must also sign the document in
the presence of the testator.

Grant of Probate Vs
Letter of Administration
An administrator of an
estate derives his/her power form the Letter of Administration which is
obtained by an application to the court. Letters of Administration are granted
in instances where the deceased died intestate.

Where the deceased had a
valid will at the time of his/her demise a
n executor would have been identified
in the will. The grant of probate ratifies the functions and the powers of the
executor, usually by reaffirming the contents of the will, and clarifying grey
areas, if any.

Although an executor of a
will may deal with the estate immediately upon the death of the testator, the
ability of an executor to continue to act, is dependent on the grant of
probate; he/she may not perform certain acts without same. This is not the same
in the case of administrators. By law, an administrator derives his/her powers
from the Letter of Administration and thus may only act upon the grant of same.
The exception to this general principle is where these actions are for the
interest and benefit of the estate – in which case they will be correlated back
to the date upon which the deceased died, and validated by the courts.
Key Points to Note
a. When deciding on
possible custodians for minors, the chosen guardians should be informed of the
decision beforehand to determine if he/she is willing and suitable for the role;
b. The legal spouse of a
person who dies intestate is entitled to one third of the entirety of the
estate, after the deduction of funeral expenses, with the remainder two thirds
being shared equally amongst the children of the deceased;
c. There is no legal
distinction between children born in wedlock and outside of wedlock. Children
born out of wedlock are legal beneficiaries of the estate of their late father,
and thus entitled to a share equal to that of children born under any legal or
customary marriage, whether or not the marriage was subsisting at the time of
the child’s birth;

d. All persons with an
interest in the intestate estate of a deceased person may apply for letters of
administration in regards to that estate, inclusive of siblings, uncles/aunts,
cousins and children born out of wedlock; however, the statutory maximum is 4
persons. On the basis of the evidence submitted and with due regard to the
rights of all persons interested in the estate, the courts will have discretion
as to who these letters of administration are granted to; and

e. Where children born in
wedlock fail to acknowledge the rights of children born out of wedlock, this
may lead to the nullification of any Letters of Administration which might have
been obtained without their input, knowledge or participation.

Death is the only
certainty in life and so it is a subject which should be addressed and well
catered for; many people have allowed their fear of death to hinder their
ability to plan appropriately for it.

Please note…… the making
of a will does not lead to death.

I must stress the
importance of updating one’s will periodically, especially in instances where
there might have been substantial changes such as a divorce, a marriage, a new
birth or fluctuations to the initial financial disposition of the testator.

There is no point having a
will if the majority of your newly acquired “Buhari Wealth” is not
reflected in the document.

Ivie Omoregie 

Ivie is a commercial
lawyer, with experience and keen interest in projects and transactions work
within the Sub Saharan African region. She is called to practice in England and
Wales and Nigeria. Her core practice areas: include – all aspects Corporate
Commercial; Corporate Governance, Risk and Compliance; Financial services and
Banking; Infrastructure and Projects; Venture Capital, Private Equity and
Alternative Investment (including Fund Formation and Administration) ; Public
Procurement; Natural Resources; Telecoms, Technology and Media; Agribusiness;
Manufacturing and Construction.