ACCORDING to the Wills Act 1837 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”
.Any person of legal age with sound testamentary capacity can make a valid will. He/she must be at least 18 years of age.
Under the wills law of Delta State however, the statutory age for making valid will is 21 years.
Notwithstanding this statutory provision, some persons are exempted from this age limitation for making a will.
They include Soldiers in actual military service, mariner or seaman being at sea and a member of Airforce who are however, excluded from this bar as they can make valid wills even where they are not of statutory age.
The testator must understand what a will is all about and is sane as at the time of making the will. 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 .
In Dawodu v. ISIKALU & ORS (2019) LPELR-46435(SC) ,the court adumbrated some of the conditions for a valid will thus“ I must stress that 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. See Madam Olufunso Okelola V. Miss Adebisi Boyle (1998) LPELR-2439 (SC)”. Per MUSA DATTIJO MUHAMMAD J.S.C ( Pp. 13-15, paras. F-B ) The court also noted that “No Will shall be valid unless: – (a).
It is in writing. (b). It is signed bythe 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.” Per JOHN INYANG OKORO, J.S.C (Pp. 17-19, paras. E-D)
Again, 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”.
“The burden, however, for the proof of validity of a document (will), the genuineness or authenticity thereof lies on the person propounding it and once this is satisfied, the burden is cast upon those attacking it.”
“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 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 will be rendered invalid. It is immaterial that the will reflected the instructions, wishes and intentions of the testator. Thus in the case of Apatira v Ikanka, court had no hesitation in invalidating a will where witnesses attested before the testator signed.
The essence of making a valid will is to ensure that the estate of the maker is distributed and managed according to his final wishes beginning after death.
It also has the advantage of 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).
Many litigations, violent struggles for property of a deceased who died intestate and the problem posed to the society now and in future can be easily averted if people imbibe the culture of leaving behind a valid will for the family.
Unfortunately, many see making of will as something dreadful and not to be talked about. Many erroneously associate it with death on the superstitious belief that writing a will is an invitation to death.
The truth however is that will or no will, death must surely come. Indeed, a philosopher once observed ‘we can do something to postpone our death and within reasonable limit, every human being does, but we cannot prevent ourselves from dying ultimately’.
Fear of death should therefore not be an excuse for failure to make a will.
For others, there is no need to bother since dead men don’t bite and are not interested any longer in who gets what from their estate once they are dead.
Well with a will dead men can bite about their estates as management and distribution of their legacies must accord with their wishes and intentions. With wills, dead men talk, their wills speak for them. The “will” represents the final wishes and intentions of a dead person with regards to management of his property. Indeed, dead men are commanders through their wills as to distribution and management of the property they left behind.
Courts more often than not act as foot soldiers of a testator as they will always respect and uphold the intentions of the dead, written, clear, lawful and willfully made will left behind by the dead.
The law is not oblivious of the fact mistakes and fraud may sometimes creep into a will thereby rendering the wishes of testator distorted or impossible. To prevent these, the law ensures that, every Will must be made in accordance with the law for it to be genuine and accepted by the courts. Wills can be changed or amended by the testator in his lifetime through the use of codicil or drawing up a new one.
Indeed, a wise man puts his house in order before his demise. The best way to do this is to make a will. Will is not an invitation to death. After all, where there is a will there is always a way.
