BY KELVIN OSEMENE
LAST week at the state police headquarters, Asaba I had a discussion with a police officer friend of mine on will as an instrument for resolving violent struggle for property inheritance and his question was how do you identify a genuine will?
According to him, wills can be forged and thus defeat the purported last wish of the testator.
This fear no doubt raises the question as to what are the qualities of a genuine will and this forms the focus of our legal matters today.
This fear of my officer friend and indeed, many citizens, to some extent, may be valid especially now that technology can be deployed by unscrupulous persons to manipulate or ghost documents to make them look real to the ordinary man in the street.
Be that as it may, the law is not oblivious of the fact that fraud and even mistakes may sometimes creep into a will thereby rendering the wishes of testator distorted invalid and unenforceable.
Accordingly , both the Wills Act 1837 and the various states wills laws have in place some safety valves to ensure that every WILL must be made in accordance with the law for it to be genuine and be acceptable.
With regards to mistakes, Wills can be changed or amended by the testator in his life time through the use of codicil or drawing up an entirely new one.
As signposts for genuineness, the Wills Act 1837 for instance, adumbrated the qualities that a genuine will must possess thus “A will is a testamentary document voluntarily made and executed according to law by a testator of sound mind, where he disposes his properties (real or personal)to beneficiaries to take effect after his death”
Equally important is that except Soldiers in actual military service, mariner or seaman being at sea and a member of air force, no person below 18 years of age can make a valid will
Under the wills law of Delta state however, the statutory age for making valid will is 21 years.
The will must be made voluntarily without any external influence and signed by the testator or any person he appoints on his behalf who must then sign in the presence of the testator and as directed by the testator .
Thus in Dawodu v. ISIKALU & ORS (2019) LPELR-46435 (SC) ,the court had this to say “ … an overriding condition for the validity of a will is that it must be completely free from any suspicion or suspicious circumstances whatsoever and the Court, unless the suspicion or suspicious circumstances is removed, will pronounce against it and refuse probate.
Again, in Madam Olufunso Okelola V. Miss Adebisi Boyle (1998) LPELR-2439 (SC)”. Supreme Court ( Pp. 13-15, paras. F-B ) held that “No Will shall be valid unless: –
(a) It is in writing. (b). It is signed by the testator or signed in his name by some other person in his presence and by his direction in such a place on the Will so that it is apparent on the face of the Will that the testator intended to give effect by the signature of the writing signed as his Will; (c) the testator makes or acknowledges the signature in the presence of at least two witnesses present at the same time. (d). the witnesses attest and subscribe the Will in the presence of the testator but no form of attestation or publication shall be necessary.”
In the case of ANYA v. ANYA & ORS (2020) LPELR-49386(SC), the court held:“… a person who desires to make a Will must satisfy the requirements of law for the Will to be valid, else it will be invalid”.
“It is trite law that for a will or testamentary intention of a deceased person which ought to be respected, to be given effect to, there must be absolute compliance with the requirements of the Wills law”.
“ … the Will satisfied all the formal requirements of a valid Will; that there was cogent evidence that the testator, Chief O.U. Anya, had the mental and educational capacity to make a Will. There was also evidence that the deceased had no disability with his eyes and that 2 persons (Legal Practitioners) witnessed him append his signature to the Will before they subscribed to same” The testator must therefore acknowledge his signature in the presence of two (2) witnesses who must be present at the same time.
This can be by word or conduct. The testator must be the first to sign before the witnesses can attest otherwise the will be rendered invalid.
Where however, the witnesses attested before the testator signed, the will is rendered invalid. See the case of Apatira v Ikanka.
A genuine will therefore is the one made by a person who at the time of making same has attained the statutory age requirement, has the mental and testamentary capacity ,made the will voluntarily which must be signed in presence of(2) witnesses and attested to according to the wills Act/laws.
The importance of making a genuine will is to ensure that the estate of the maker is distributed and managed according to his final wishes beginning after death.
It ensures to the benefit of ensuring peace by preventing acrimony and crisis that more often than not engulf many families over sharing or distribution of the property of a person who dies intestate (without a will). There is no doubt that the volley of violent struggles among family members over the property of a deceased who died intestate and the problem posed to the society now and in future can being minimized if the society totally accept the culture of leaving behind a valid will for the family as a will representing the last wishes and intentions of a dead person with regards to management of his property if honoured will ensure rancour free distribution and management of the property left behind.
Any one that has doubts about the genuineness of a testamentary document or intends to challenge its legality in any material particular should consult a legal practitioner for proper legal advice and possible steps to be taken for redress.
The courts are always open to adjudicate on this and other disputes properly brought and within their jurisdictions.
Do not therefore engage in self-help or seek the services of traditional ‘town planners’ or marabouts to challenge a suspected non- genuine will. Approach the court instead as only the court has the legal and statutory power to declare any testamentary instrument valid or not.
