What is a WILL? According to Black’s Law Dictionary[i], the word “Will” has two discrete meanings. The first and strict meaning is metaphysical and denotes the sum of what the testator wishes, or wills, to happen on his death. The second and more common meaning is physical and denotes the document or documents in which that intention is expressed. Take differently, a Will is the legal expression of an individual’s wishes about the disposition of his or her property after death. Similarly, a Will or testament is the declaration in a prescribed manner of the intention of the person making it with regard to matters which he wishes to take effect upon or after his death[ii]
In Nigeria and as defined above, a will is a legal document that spelled out how a deceased person’s assets and properties are to be distributed. However, there may be instances where a Will is contested by family members or other interested parties who believe that the document is not valid. This article will outline the legal process for challenging a will in Nigeria
VALIDITY OF A WILL
According to the Wills Law of Lagos State[iii], it provides that a will shall only be valid if:
- It is in writing[iv].
- It is signed by the testator or signed in his name by some other person in his presence and by his direction in such 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;
- The testator makes or acknowledges the signature in the presence of at least two witnesses present at the same time.
- The witnesses attest and subscribe the Will in the presence of the testator but no form of attestation or publication shall be necessary.[v]
CHALLENGING THE VALIDITY OF A WILL
In challenging the validity of a Will, such grievance can be ventilated vide two major channels.
- Challenging the validity of a Will based on Defective Form. A defective will can occur in the ways listed below:
- Execution of a Will
Following the requirement for the validity of a Will, the same can be challenged where the execution of such a Will is not proper. A will is required to be signed by the testator. Without the signature or mark of the testator, no written will be valid. When a blind person is making a Will, it must be shown that the Will was read over to him and he perfectly appeared to understand the contents before affixing his hands to it[vi]. The same goes for a Will made by an illiterate. If there is no indication that a will was read to an illiterate testator in a language understood by him before execution such a will would not be granted probate by the court.
- Attestation of a Will.
Part of the requirement of a valid Will is that it must be attested to by at least two witnesses. Where a Will is not attested to as prescribed by law, the same can be challenged. The essence of this requirement is to prevent any form of fraud.
- Challenging the Validity of a Will based on its substance. A will can also be challenged on the following grounds.
- Undue influence
A testator has the right to change his/her mind as regards his/her Will at any time before death provided that it can be convincingly proven to the satisfaction of the Honourable Court that at the time of changing his Will, he was free of any form of undue influence. In proving undue influence, the onus of proof shifts. In the first instance, where there is a dispute as to a Will, those who propound it must clearly show by evidence that prima facie all is in order: Thereafter, the burden is cast upon those who attack the Will and they are required to substantiate by evidence the allegations they have made.
- Insane Delusion.
In determining the mental capacity of a testator at the time of making the Will:
- The testator must understand the nature of the fact that he is making his will and its effect.
- He must understand and recollect the extent of the property of which he is disposing.
- The manner in which the property is distributed must be rational so that no disorder of the mind has poisoned his affection or perverted the exercise of his will.
It must, however, be noted that the mere fact of the testator’s ability to recollect things, or to converse rationally on some subjects, or to manage some business, would not be sufficient to show he was sane; while, on the other hand, slowness, feebleness, and eccentricities would not be sufficient to show he was insane; and that the whole burden of showing that the testator was fit at the time of making or executing the will is on the party claiming under the will
- Testamentary capacity
In the case of an illiterate or a blind person, there must be evidence that the content of the Will was translated to the testator who is an illiterate person or read over to the testator who is a blind person.
PROCEDURAL STAGES IN CHALLENGING A WILL.
- Gather evidence
Before challenging a will, it is essential to gather as much evidence as possible to support the claim. This may include medical records, witness statements, financial documents, and any other relevant information. The evidence must be strong enough to prove that the will is invalid.
- Determine legal standing
Only certain individuals have the legal standing to challenge a will in Nigeria. This includes family members, beneficiaries, or anyone with a vested interest in the estate. It is essential to determine whether you have the legal standing to challenge the will before proceeding.
- File a petition
To challenge a will in Nigeria, you must file a petition with the Probate Registry of the High Court of the state where the will was probated. The petition must outline the reasons why the will is being challenged and provide supporting evidence.
- Serve notice
Once the petition has been filed, notice must be served to all interested parties, including the executor of the will, beneficiaries, and other family members. This gives them the opportunity to respond and present their evidence.
- Attend court hearings
After filing the petition, the court will set a hearing date. It is essential to attend all court hearings and present your evidence. The court will listen to all parties and make a decision based on the evidence presented.
If you are dissatisfied with the court’s decision, you may appeal to a higher court. The appeal must be filed within a specified period and must outline the reasons for the appeal.
It must be noted that in every case of challenging the validity or legality of a Will, the onus lies on the propounders of a will to satisfy the court that the instrument is ‘the last will of a free and capable testator’. The onus does not necessarily remain fixed; it shifts. Where there is a dispute as to a will, those who propound it must clearly show by evidence that, prima facie, all is in order; that is to say, that there has been due execution and that the testator had the necessary mental capacity, and was a free agent. Once they have satisfied the court, prima facie, as to these matters, the burden is then thrown upon those who attack the will, and they are required to validate by evidence the allegations they have made as to their ground of objection, to wit; lack of capacity, undue influence, and many more.
In conclusion, challenging a will in Nigeria can be a complex and timewasting process. It is important to gather as much evidence as possible and seek legal advice before filing a petition. While the process may be difficult, it is essential to ensure that the deceased person’s wishes are respected, and their assets are distributed according to their wishes.
[i] Ninth Edition, page 1735;
[ii] Kwentoh v. Kwentoh (2010) 5 NWLR (pt 1188) 543 at 562; Asika & Ors v. Atuanya (2013) LPELR – 20895 (SC)
[iii] Section 4 of the Wills Law of Lagos State Cap W2 Laws of Lagos State of Nigeria
[iv] However, under customary law, an oral will is valid. See the case of Bankole .v. Tapo (1961) 1 All NLR 140, where an oral disposition of land by a testator was upheld to be sufficient to transfer the property to the beneficiary
[v] Dawodu v. Isikalu & Ors (2019) LPELR – 46435 (SC)
[vi] Henry Charles Christopher v. Samuel Insightful Tawiah 13 WACA 347
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