INTRODUCTION
The aim of this Article is to give a basic,
brief and easy to read explanation of the fundamental requirements that are
must know for every person with respect to Wills. This Article also intends to
correct the notion that Wills are unnecessary or trivial and gives a clear
suggestion on the significance of writing and keeping a Will.
DEFINITION OF A WILL
A Will is defined as “a document by which a
person (called the testator) appoints executors to administer his estate (his
assets and properties) after his death, and directs the manner in which it is
to be distributed to the beneficiaries (the people who are to benefit from the
Will, such as family and friends).
DEFINITION OF AN EXECUTOR
An executor is the person appointed or
nominated by the maker of a Will to administer or manage his Estate after his
death. He is responsible for ensuring that any debts and creditors that the
deceased have are paid off and that any remaining money or property is
distributed according to the wishes of the deceased.
CHARACTERISTICS OF A WILL
Every Will must have certain
characteristics for it to be valid. If a Will is not valid, it will not be
legally binding after the death of the maker of the Will (Testator). The
following are some of the characteristics of a Will:
It must be made voluntarily
The testator must be of sound mind
It must name the beneficiary or
beneficiaries
It must be in the presence of witnesses
It must identify the property.
TYPES OF WILL
There are different types of Will, such as:
Oral Will: This is a Will made orally
before two or more credible witness.
Mutual Will – This is where two or more
persons execute the same Will, conferring mutual benefit or reciprocal benefits
on each other. It is common between husband and wife. In this, none of the
testators can revoke or amend without the consent of the other.
Prenuptial Will – This is a Will made by
any of the spouses before marriage
Conditional Will – This is a Will that is
executed by a testator and made subject to a condition.
ADVANTAGES OF MAKING A WILL
There are many advantages of making a Will.
It is important and a smart choice to make a Will so that the maker of the Will
can protect his family, relatives, friends and any other person he may wish to
inherit his assets.
In our society, some people get upset when
their spouses ask if they have a Will. However, there is nothing to get upset
about and it does not mean your spouse is trying to kill you. In fact, it is a
way to protect your wife and children from suffering if the unexpected happens.
It
is merely superstitious and unnecessary to think that making a Will means you
will die soon. That is not true. Many people have Wills and still live very
long.
Some other advantages of making a Will are:
·
The
testator will be able to order his affairs before his death
·
The
testator will be able to share his assets and properties amongst his family and
friends in the way he desires
·
The
testator’s property will not be shared under customary law since he has already
decided how he wants it to be shared
·
The
testator has the benefit of appointing people he trusts as his executors, and
they have the duty to carry out his wish.
·
Trusted
persons can be appointed as guardians of testator’s infants (young children).
·
It
gives the testator the opportunity of showing generosity to other people
e.g. donation for charitable purposes
·
The
testator is given the opportunity to give his funeral directives.
WHO CAN MAKE A WILL
Every person of requisite statutory age
(above the age of 18), with a sound disposing mind and memory can make a Will
notwithstanding his tribe, religion, or physical status. Thus, a blind or disabled
person can also make a Will.
TESTAMENTARY CAPACITY OF A TESTATOR
It has been stated above that every person
can make a Will, however such a person must have testamentary capacity.
Testamentary capacity means legal capacity to make a Will. The law requires
that a testator must have a sound disposing mind both at the time of giving
instructions and execution of the Will. The purport of this is to ensure that
the Will was made voluntarily and without undue influence. The criteria for
deciding that a testator has testamentary capacity are as follows:
·
The
testator must understand the nature of the act that he is making his will and
its effect.
·
He
must understand and recollect the extent of the property of which he is
disposing.
·
He
must understand and appreciate the nature and extent of the claims upon him by
both of those whom he is including from his Will.
·
The
manner in which the property is distributed must be rational that no disorder
of the mind has poisoned his affection or perverted the exercise of his will.
VALIDITY OF A WILL
For a Will to be valid, it must be duly
executed. Therefore, the following conditions must be met:
·
It
must be in writing;
·
It
must be signed by the testator or his representative, and dated;
·
The
signature of the testator must be witnessed by at least two witnesses;
·
The
witnesses must attest and subscribe the Will in the presence of the testator
·
AMENDMENT OF A WILL
Can you rewrite your Will? The answer is
yes. A will can be revoked or amended by the maker during his
life time as many times as he wishes. Thus, the last Will and Testament is the
one that is made by the Testator before his death and the last will revokes all
previous wills. Where the Testator just intends to add some things, correct a
clerical error or replace or appoint new executors he might just prepare an
addendum. This is called a codicil.
WHO CAN BE A WITNESS
Anybody can be a witness to a Will.
However, it is advisable that beneficiary of a Will is not a witness to the
Will. This is because a witness who benefits under a Will loses any property or
benefit that he is given by the maker of the Will, and this is irrespective of
if the Testator is your spouse.
However, in cases where there are at least
three (3) witnesses to the Will, the beneficiary can still keep his gift if the
Court discountenances the attestation of the beneficiary so that there will be
at least two (2) witnesses to validate the Will.
HOW TO WRITE A WILL
A Will can be written by the Testator
himself. It is however good to consult a lawyer who is skillful in the art of
writing a Will so that it conforms with the requirements of a valid Will.
DIGITAL ASSETS
Digital assets can be defined as digitally
stored content or an online account owned by an individual. (www.thedigitalbeyond.com) It can
also be referred to as something that has value and can be owned but has no
physical presence. Digital assets include but are not limited to documents,
websites, books, media, designs, digital currency, data and art.
(simplicable.com)
It is needless to say that we are at a time
where many people have turned small businesses to global businesses with the
help of the Internet, mobile marketing, telecommuting, smart phones and social
media.
It is therefore apt for a Testator to consider how these tools
may be managed in the event of his demise.
WHERE IS A WILL KEPT?
After a Will has been written, it can be
kept in the custody of the lawyer, in the house of the testator, bank vault or
probate registry.
The best option is for it to be kept at a
probate registry which is located in every state’s High Court premises. It is
the safest place for the Will and makes it easier to prove. After the death of
the testator, the family members can approach the probate registry after 7 days
with a copy of the death certificate.
Subsequently, the probate registrar
contacts all beneficiaries and sets a date for the reading of the Will. On that
day, the probate registrar breaks the seal of the Will and reads out its
contents.
WHAT IS PROBATE?
Probate is the legal process whereby a will
is proved in a Court and accepted as a valid document that is the last true
testament of the deceased. (en.m.wikipedia.org).
The process of obtaining probate is the
first step in the adminstration of the estate of a deceased and can be done by
the Exceutors of the Estate. It is however usually a cumbersome and tasking
prodedure for persons who are unfamiliar with the process and it is advisable
to employ the services of a Legal Practitioner.
CONCLUSION
It is imperative that people embrace the
idea of writing a Will once adulthood is attained. Furthermore, it is also
pertinent to modify the Will when more assets are attained to avoid excluding
the additional assets from the Will.
If you put your house in order, your
dependants will not be left to suffer if the inevitable happens.
By- Motunrayo Olaleye
Legal Counsel at B. Ayorinde & Co.
Photo Credit – www.davidfreedman.ca
