TYPES OF GIFTS IN PROPERTY LAW IN NIGERIA

DIFFERENT TYPES OF GIFTS IN PROPERTY LAW IN NIGERIA

PROPERTY LAW TRANSACTION

CHAMAN LAW FIRM

2021-07-19 33 min read

TYPES OF GIFTS IN PROPERTY LAW IN NIGERIA

TYPES OF GIFTS IN PROPERTY LAW IN NIGERIA

Gifts under a Will are called LEGACIES and where the legacy is of land or landed property, it is called a DEVISE and the recipient is called a DEVISEE. Where it is the legacy of personality e.g. jewellery or box of clothes or even a car, it is called a BEQUEST or simply LEGACY and the recipient is called a LEGATEE. 

CLASSIFICATION OF GIFTS: There are three major classes of gifts namely:

0.      Specific

1.      General

2.      Demonstrative

There are other classes of gifts which may be either be specific, general or demonstrative. They include: pecuniary legacy, absolute legacy, alternate legacy, accumulated legacy, contingent legacy, modal legacy, residuary legacy, annuity, conditional legacy.

1)      Specific Gift: this is a gift which is so described in the Will so as to be easily identifiable or ascertainable.

 For instance “I give or devise my three storey building at 9 Lam Street, Agege, Lagos to my wife”. Most times the pronoun ‘MY’ is used.

Specific gift are subject to the principle of ademption, thus the court in construing a clause of a specific legacy leans towards construing it as a general legacy in order to save the gift from total failure by ademption. See Re ROSE.

One advantage that specific legacies have over general legacies is that unlike general legacies, a specific legacy cannot fail by abatement, except where the entire estate is insufficient to satisfy all the claims on it. HOWEVER, IT IS SUBJECT TO ADEMPTION.

Disadvantage of Ademption.

Key: Specific gift is Gift + source + particulars

2)      General Gift: this is the opposite of specific legacy. Thus, a gift which the testator intends to dispose of to come from his general estate.

Example is ‘I give a Rolex wrist watch to my first son’. If there is no Rolex wrist watch, one must be gotten by the executors. It is a gift without description, that is, a GIFT –

§  A duplex to my driver, Joe

§  N2 million to my wife, Mercy.

§  10,000 shares in a reputable company to Sam, my cook.

§  A Toyota Camry to my secretary, ify

§  A house to my second wife, Comfort

A general legacy cannot fail by ademption and this is one advantage which it has over specific legacies.

Gift –SOURCE-PARTICULARS

3)      Demonstrative Gift: this is a legacy in between specific and general legacies in that the testator directs that the gift is to be satisfied out of a specific fund or pool of property and the testator indicates in his Will where such gift can be sourced. For instance ‘I give one of my houses in Awolowo Road, Lagos to my eldest daughter’. That is, GIFT + SOURCE. It is a gift made with a description of the source or location.

Just like general legacies, a demonstrative legacy cannot fail by ademption. NB: be very careful. A demonstrative legacy could look very much like a general legacy. Just check if a particular source is prescribed; if yes, then it is a demonstrative legacy.

Example:

§  ‘one of my Toyota cars to be given to Wale”. The source is from the testator’s Toyota cars.

§  A duplex along Hopewell Street, Victoria Island Lagos to my driver, Joe

§  N20,000,000 from my account at GT bank to my wife.

§  A house at Enefaa Chamberlain Estate, to my second wife.

10,000 shares from Julius Berger to my wife.

Gift 🎁+ SOURCE – PARTICULARS

Gifts in a will may be either

§  A device; or(gift of real property)

§  A Legacy/bequest(gift of personal property)

OTHER FORMS OF GIFT

Any of the above types of gifts may be either of the following:

4)      Pecuniary legacy: this involves gift of money, thus monetary gifts which may either be specific, general or demonstrative

5)      Annuities: this involves gift made periodically or annually. It can be general, specific or demonstrative. Example: “a sum of ten million naira to be given annually or quarterly to Mr X”. THE BEST WAY TO DEAL WITH ANNUITIES IS TO APPOINT A TRUSTEE

6)      Alternate legacy: this is where the beneficiary is given several gifts to choose from

7)      Conditional or contingent legacy: a gift which is subject to a condition or contingency. Example: “my two storey building in VI to Wale, if he marries my daughter”, “my law firm should be inherited by my children who are lawyers”, “my house in VI, if I have any”

8)      Modal legacy: this is a gift accompanied with specific instruction as to the mode of use or application

9)      Residuary legacy: this is the remaining excess of the estate after the settlement of all debts and testamentary expenses and specific gifts made in the Will. That is, it is the remainder of the estate after the debts and liabilities of the debtor have been cleared and paid. There are four components of the remainder

                                                      a)            Property(s) of the testator which were left out or not disposed of in the Will

                                                      b)            All gifts in the Will that failed

                                                      c)            Property(s) acquired after the Will was made

                                                     d)            All gifts that were renounced or disclaimed

Where there is a residuary clause, the residuary estate/remainder will be administered according to the clause. But where there is no residuary gift clause, any gift that falls into the above categories will fall into intestacy, to be administered only after a successful grant of Letter of Administration.

Thus as a solicitor, you have duty to advice the testator to include a residuary gift clause so as to avoid partial intestacy.

FAILURE OF GIFTS

A gift in a will can be said to have failed under any of the following

1. Vitiating elements/factors

2. Ademption

3. Lapse

4. By operation of law (attestation)

5. On ground of public policy/illegal purpose

6. Disclaimer by the beneficiary

7. Conditional gifts

8. Abatement

9. Void gifts

10. Uncertainty

1. Presence of vitiating elements/factors: WINTLE V NYE, OKELOLA V BOYLE.

Vitiating elements in this regard are those that can vitiate a commercial contract. For instance fraud, undue influence, mistake and suspicious circumstances.

1)      Undue influence: this may lead to the failure of a gift in a Will. See HALL v. HALL        ~. This involves the interference of a third party in a testator’s testamentary freedom. There is no presumption of undue influence. It is a question of fact to be proved on balance of probabilities.

In law, persuasion, no matter how strong, does not constitute undue influence. Inducement or persuasion, by whatever consideration, though it be immoral would not constitute undue influence if it does not amount to coercion that has the effect of overriding the testator’s freewill and testamentary freedom. See JOHNSON v MAJA where the testator gave preference to his mistress as against his wife and the court held that immoral consideration in the case did not constitute undue influence.

Onus is on the challenger to prove: JOHNSON V MAJA This is in line with evidence Act.

The factors to consider where undue influence is alleged are:

·         Was the will duly executed?

·         Was it a free exercise of the testator’s volition.

·         Was the testator of sound disposing mind at the time of execution?

·         Did the testator have knowledge of and approve of the contents of a will.

OKELOLA V BOYLE.

2)      Suspicious circumstances: they usually arise where there is a fiduciary relationship between the testator and a beneficiary. There are certain relationships which are prone to allegation of undue influence such as where the solicitor who drafts the Will is a substantial shareholder under the Will. In such cases, the court will consider that there are circumstances which may rebut any presumption of the testator’s knowledge and approval of the content of the will and where sufficient evidence is not given to dispel the suspicion, the gift may fail. See WINTLE v. NYE; Re A SOLICITOR; OKELOLA v BOYLE.

Where raised, propounder must discharge the suspicion otherwise the gift will fail. OKELOLA V BOYLE.

3)      Mistake: the testator may be mistaken as to the type of document he was executing so that it was not his Will at all. Also, he could be mistaken as to the content of the will, or the intended beneficiary. The person alleging mistake has the duty of proving such mistake. A gift may fail on grounds of mistake. See OKELOLA v BOYLE; HASTILOW v. STOBIE. Mistake of law is not applicable

A)    Fraud: a gift can also fail when fraud is proved on the part of the beneficiary. See WINGROVE v WINGROVE; WILKINSON v JOUGHLIN , Wintle v Nye.

2. Ademption

Ademption involves a situation where a gift 🎁 is lost or destroyed or sold before the death of the testator . This could be due to sale of the gift by the testator in his life time; or where the gift is shares in a company and the company in testator’s life time was wound-up and the testator was paid his entitlement under remainder of asset (if any). When a gift made under a Will is sold or lost or destroyed or otherwise ceases to exist in natural character prior to the testator’s death, such a gift will be said to have failed by ademption.

Specific legacies are subject of ademption. Summarily, instances of ademption are:

                                i)            Gift lost or sold before testator’s death.

                              ii)            Where the natural character of a gift has been fundamentally altered or extinguished, then the gift will fail by ademption. See Re KUPYERS. However, a mere change in the name or form of the gift does not adeem the gift where the subject matter is substantially the same. See Re CLIFFORD. For instance, shares in a company and the company changes its name: section 31(6) CAMA; change of street name affecting address of devise.

                            iii)            Where the Property (gift) is subject to a contract, whether completed or not. Remember that at exchange of contract, death of either party does not affect the contract. Thus, the gift will fail by ademption

                            iv)            Where the property (gift) is compulsorily acquired: If the landed property was validly acquired by the government during the life time of the testator and compensation paid to him, any gift of that property made under a Will will fail by ademption and revert to the estate of the testator.. See Re GALWAY. If acquisition was invalid or if the acquisition, though valid, was done after the death of the testator, there would be no ademption and the beneficiary is entitled to the compensation. Section 43 and 44 1999 CFRN.

·         Property subject to option to purchase.

Note that ademption relates to the gift while lapse relate to the beneficiary. Note also that there could be partial ademption. That is, where part of the gift fails by ademption.

EXCEPTION TO ADEMPTION

·         Where property/gift has changed in form not in character

·         Change of name is not ademption. There must be a fundamental change.

·         Acquisition, take over, merger not ademption.

·         Sub-division, consolidation of shares not ademption.

Not all gifts are subject to ademption. Only specific gifts are subject to ademption. It must be noted that a specific legacy would ordinarily not fail by abatement unless and until the entire estate is insufficient to satisfy the liabilities of the testator.

To avoid a situation where the beneficiary would go empty handed on account of the ademption of the gift made to him, it is advisable to add a substitutional gift/substitutional gift clause. For example: “I give my Mercedes benz C-class with registration number xx-888-yy to Joseph John of ------- or such other car as I have at the time of my death and if I have no car, then some other Mercedes benz car”

3. LAPSE

A gift in a Will will be said to have failed by lapse where the beneficiary pre-deceases the testator; or if the beneficiary is a corporate body, where it ceases to exist by winding up (liquidation) before the death of the testator. It must be noted that by section 18 Wills Law Lagos and section 25 Wills Act, where a Will fails by lapse and there is a residuary gift clause, the gift that failed by lapse would fall into the residuary estate. If there is no residuary gift clause, then the gift so failed will fall into intestacy (partial intestacy).

The exceptions under which a gift will not fail by lapse are:

a)      Substitutional or alternate beneficiary: the testator can make an alternative or substitutional gift to the beneficiary’s children or personal representatives in order to save the gift from failing by lapse. See DARREL v MOLESWORTH

b)      Class gift: Where the gift is made to a class of persons, whether as joint tenants or as tenants in common, the gift so made will not fail by lapse on the death of any of the members of the class so long as at least one member of that class still survives. See LEE v. PAIN

Note the difference between joint tenants and tenancy in common for this purpose. The gift would be deemed to have been given to the members of the class as joint tenants where there are no words of severance; example: “I give the sum of 120 million to my six children”. There are no words of severance so, the children hold as joint tenants and on the death of any of them, whether he predeceases the testator or not, the gift will fall to the other surviving members of that class absolutely under the doctrine of survivorship (JUS ACCRESCENDI). However, where words of severance are used, then the gift would be deemed to have been given to the class as tenants in common, in which case, on the death of any member of the class, whether he predeceases the testator or not, the gift would fall to his estate or his heirs or his personal representatives.

Thus, the distinction between joint tenants and tenants in common is very important here as it determines whether the principle of jus accrescendi would apply.

There is a difference between tenant-in-common and joint tenancy. Tenant-in-common is where in the devise or bequeath of gifts, words of severance are used - ‘in equal share’, ‘in 40 -60 share’; while in joint tenancy, words of severance are not used – ‘I give to A and B the house situate at .....’. Where either of them dies, the surviving party will take the gift absolutely. This is rule of survivorship – jus accrescendi.

c)      Gifts made in settlement of a debt or obligation owed by the testator will not fail by lapse even if the beneficiary predeceases the testator. It will go to the beneficiary’s estate. See Re LEACH. Exception where the gift exceeds the sum owed.

d)     Where the gift is made to an office, the gift will not fail if the occupant of that office predeceases the testator.

e)      Where the beneficiary is a child of the testator and he dies leaving an issue or is survived by an issue, then a gift made to him will not fail by lapse  but will go to his heir. See section 24 Wills Law Lagos; section 33 Wills Act;  Re MEREDITH; The conditions are: (i) the beneficiary is a child of the testator; (ii) the beneficiary predeceases the testator, but dies leaving an issue.

f)       Entailed gift: a gift made to be inherited by several persons in succession cannot fail by lapse. That is, a gift made to several persons with life interest to each cannot fail by lapse.

It must be noted that by section 18 Wills Law Lagos and section 25 Wills Act, where a gift 🎁fails by lapse and there is a residuary gift clause, the gift that failed by lapse would fall into the residuary estate. If there is no residuary gift clause, then the gift so failed will fall into intestacy.

4. Gifts void for uncertainty

This is where there is uncertainty either as to the gifts or the beneficiaries(objects and subjects). Where the gifts are made to charity, the court usually applies liberal construction and as a general rule, charitable gift will not fail for uncertainty of beneficiary.

5. Conditional gifts

A conditional or contingent gift will fail if the condition is not satisfied or if the contingency upon which it was made does not occur. For instance ‘I give my house at 7, Udeh Street, Ikoyi, Lagos to my eldest daughter Chinelo if she becomes a lawyer’. If at the time of death of the testator, Chinelo is not yet a lawyer, the gift will fail.

6. Gifts void on grounds of public policy or illegal purpose

Where the gift is for an illegal purpose, the gift will fail. For instance, gift to be used for opening and operating a brothel. Also, on ground of public policy, a gift will fail. For instance if the beneficiary was responsible for the death of the testator, he cannot on the ground of public policy be entitled to such gift.

7. Disclaimer by the beneficiary (renunciation)

The beneficiary can decide to disclaim the gift. This involves the beneficiary stating that he does not want the gift. The gift disclaimed will fail.

8. By operation of the law (attestation)

The law governing the making of a Will may provide that a beneficiary will not take the gift bequeathed or devised to him under certain circumstances. In such instance, the gift will be said to have failed. For instance, where beneficiary or a spouse of a beneficiary witness to a Will, the position of the law is that such beneficiary or the spouse is not entitled to the gift given to him in the Will. See section 15 Wills Act; section 8 Wills Law Lagos (remember that there are exceptions to this rule)

9. Abatement

Failure of gift by abatement is where the testator’s estate is not sufficient to satisfy the gift. Where an estate is being wound up, the debts and obligations/liabilities of the testator is first settled. The rule of abatement is that residuary estate abates first followed by general legacies,, demonstrative and lastly specific legacies. This is however subject to any contrary intention of the testator as shown in the Will. Note that there could be partial abatement.

0.      BENEFICIARY WITNESSING A WILL.: a beneficiary or a spouse to a beneficiary in a ought not to attest to a will as such gift made to the beneficiary, will fail. As held in Ross v Counters, Re pooley, The solicitor that prepared the will has the duty to advise against that otherwise he will be guilty of negligence and professional misconduct. However, a gift will not fail for this reason if  any of the following occurs;

Exceptions

§  Gift made in settlement of debt----section 15 wills Act, section 8 Wills Law Lagos.

§  Beneficiary married witness after execution”: apline v Stone.

§  Witness is only  a trustee of the gifts.:creswell v creswell

§  Gifts is subsequently confirmed in another will, not attested to by the beneficiary in question.- Re Marcus.

§  Where there are at least two other witnesses to the will apart from the beneficiary. Section 8 Wills Law Lagos, section 15 Wills Act.

§  PRIVILEGED wills. Re Limmond

§  Where the witness is subsequently appointed solicitor to the estate and the will contains a charging clause. Re Royce.

CUSTODY OF A WILL     

The following are the possible places where a will can be kept

            With the Probate Registry of the High Court within the jurisdiction of the testator. See Order 58 r 1 Lagos

            With the testator’s solicitor who prepared it

            With the bankers to the solicitor if he has any

            In a safe in the testator’s house

            With the executors

            With a trusted relation

            If the testator belongs to a club or association that keeps valuables for their members, a copy of the Will can be kept there.

Keeping the will with the testator might be disadvantageous as there is the possibility of his relatives or beneficiaries tampering with the Will when they come across it. Thus it is better to keep the will with the probate registry as safety of the will is ensured and for the purpose of granting probate to the Will as such is handled by the same probate registry of the High Court of a state.

By Order 58 rule 1 Lagos, any person may deposit his Will for safe custody in the Probate Registry, sealed under his own seal and the seal of the Court.

By Order 58 r 15 Lagos, any person having in his possession or under his control, any paper or writing of any deceased person, being or purporting to be testamentary shall forthwith deliver the original to the probate registrar within three (3) months from the day he got knowledge of the death of the deceased. Failure to do so attracts a fine of #50, 000. By Order 58 r 16 Lagos, upon an ex parte application, the judge may also order such person to produce the document in court.

Thus, it is better to lodge the Will at the probate registry. Even where the Will is not lodged at the probate registry, it would still be sent to the probate registry.

Revocation of Wills

One of the features of a valid will is that it is ambulatory. Thus, it is floating and can be revoked at any time during the lifetime of the testator's. Thus during the testator’s life time, the testator can validly revoke the will or change it as many times as he pleases. Basically, a Will can be revoked either voluntarily or involuntarily. The following are the ways by which a will can be revoked.

1)      By a subsequent valid marriage under the Act (involuntary revocation/operation of law)

2)      By duly executed Will or Codicil made with an express intention to revoke (voluntary)

3        By a duly executed written declaration with express intention to revoke (voluntary), section 20 Wills Act. 13 Wills Law.

4        By destruction with intention to revoke (voluntary)

The legal burden of proving that a will has been revoked is on the person alleging its revocation.

Subsequent Marriage - by operation of law See section 18 Wills Act and section 11 WillsLaw Lagos

Generally, every will made by a man or a woman shall be revoked by a valid statutory marriage, i.e, marriage under the Act), provided that the marriage is celebrated after the making of the will.See section 18 Wills Act and section 11 Wills Law Lagos, RE GAY.

 The marriage contemplated here is marriage validly contracted under the Marriage Act and not customary law marriages. Here, it is immaterial whether a person intends by their marriage to revoke their will.

This includes a voidable marriage, because a voidable marriage remains valid until actually voided by a court of competent jurisdiction. RE ROBERTS.

HOWEVER, a Will is not revoked by the marriage of the testator or testatrix in the following instances.

a)      Where the marriage is a marriage under native law and custom (including Islamic law), it will not revoke a Will. See section 11 Wills Law of Lagos. This is because marriage under customary law supports polygamy. RE GAY

1)      Where the Will is made in exercise of power of appointment, then it will not be revoked by a subsequent marriage of the appointee. See section 11(a) Wills Law; Re PARK.

b)      A will expressed to be made in contemplation of a marriage is not revoked by the solemnization of the marriage contemplated. See section 11(b) Wills Law Lagos; section 18(b) Wills Act. See Re LANGSTON; . The following conditions must be satisfied:+

0.      The will must be expressed to be made in contemplation of the particular marriage and the particulars of the marriage must be mentioned. The proviso to s. 11(b) states that the names of the parties to the marriage contemplated are clearly stated.

1.      The marriage must actually take place after the making of the Will

2.      The marriage must take place between the same parties contemplated.

See the Proviso to section 11(b) Wills Law Lagos and the proviso to Section 18(b) Wills Act

c)      Where the subsequent marriage is a void marriage under section 3 MCA. See METTE v METTE

2)      Where the later statutory marriage is a mere confirmation of an earlier customary marriage between the same parties. JADESIMI V OKOTIE EBOH.

From the foregoing, it is clear that only a valid subsequent marriage under the Act will revoke a Will. Re GAY.

2. By a Later Will or Codicil - See section 13 Wills Law Lagos and section 20 Wills Act

An earlier will made can be revoked by a subsequent Will or codicil that is duly executed. Importantly, the intention to revoke the earlier Will must be made manifestly clear.

Revocation by a subsequent will may be express, that is where the subsequent will or codical contains a revocation clause. Thus,  a revocation clause in a later will can revoke the earlier one – s. 2 Wills Act 1837 provides that the whole or any part of a will may be revoked by another duly executed Will or codicil. HENFREY V HENFREY

Revocation may also be implied. It will be implied where the subsequent will or codicil does not have a revocation clause but has provisions that are inconsistent with previous will or codicil. DEMPSEY V LAWSON.

 

3. By Duly Executed written declaration with express intention to revoke - See section 13 Wills Law Lagos and section 20 Wills Act

A letter or instrument declaring intention to revoke can validly revoke a will if such letter or instrument is duly executed in accordance with section 9 Wills Act. See IN THE GOODS OF DURANCE; . The written declaration must make reference to the will in question.

4. By Destruction - See section 13 Wills Law Lagos and section 20 Wills Act

Section 13 Wills Law Lagos and section 20 Wills Act provides that the whole or any part of the Will or codicil can be revoked by burning, tearing or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same. From the above, there are two ways in which a testator can revoke a will by destruction:

·         The testator can destroy the will himself; or

·         He can direct another person to destroy the will in his presence and according to his direction..

For either of the two methods of destruction, there must be two elements which are to co-exist before a will can be validly revoked by destruction

1)      There must be the intention to revoke by destruction; and

2)      Physical, complete and sufficient destruction of the Will, and not merely symbolic.

CHEESE V LOVEJOY

Revocation of a will by destruction need not be total, substantial destruction is sufficient.PERKES V PERKES.

Revocation of a will by destruction does not revoke a codicil to a will. IN THE GOODS OF TURNER.

Another person may also destroy the Will on behalf of the Testator and at the Testator’s direction. This must be done in the presence of the Testator and according to his instructions and there must be a clear intention on the side of the Testator that the Will be destroyed by another. See section 13 Wills Law Lagos and section 20 Wills Act; RE DADDS;

For this to be valid, the following conditions must be satisfied

                                                              i.            Instruction to destroy must be in writing (email etc) 2011 Evidence Act.(the instrument of appointment of the person must fulfill certain conditions). It is enough if it is a letter signed by the testator it need not be executed.

                                                            ii.            It must be done in the testator’s presence

a)      The destruction must be in accordance with the instructions of the testator.

See section 13 Wills Law Lagos and section 20 Wills Act; RE DADDS;

Note the following:

1)      Where only a part of the Will is totally destroyed, only that part is deemed revoked while the other parts remain valid. See IN THE GOODS OF WOODWARD

2)      Where the part destroyed is an essential part, such as the signature, or where the part remaining is meaningless without the part destroyed, the whole Will will be deemed to have been revoked. See  LEONARD v. LEONARD;

a)      Destruction of a will does not destroy the codicil. IN THE GOODS OF TURNER

Destruction of a will in a drunken state may or may not revoke a Will. IN THE GOODS OF BRASSINGTON, the testator in a drunken fit tore up his Will. The court held that the destruction did not revoke the Will as the testator lacked the intention. However, if a testator after tearing up his Will in a drunken state, and when he became sober, does acts that confirm the intention to revoke the Will, there would be a valid revocation.

CODICIL

SEE Greenwood v Cozens

In the Goods of Clements.

§  Supplemental to a will. It must in creation obey all the rule governing making of wills.

§  It must refer to a will, to which it is supplemental to by date. Must be numbered.

§  A codicil cannot be in existence without a will.

§  The codicil must make reference to a particular will.

Alteration in a Will – section 21 Wills Act; Order 58 r 28(2) Lagos

A Will can be altered. For any alteration in a Will to be valid, it must be executed in accordance with section 9 Wills Act. See Order 58 r 28(2) Lagos; Re REDDING;

Republication of a will

Republication of a will – s. 34 Wills Act. It means confirmation or affirmation of the validity and contents of a will. It can be done in either of two ways. Either by

a. Re-execution of the will  in accordance with s. 9 Wills Act;  s. 4 Wills Law of Lagos State, or

b. A duly executed codicil containing references to the will or codicil republished.

Republication is used for an unrevoked will or codicil. There must be clear intention to republish. In Re J C TAYLOR. Republication can be used to confirm the gift given to a beneficiary who witnessed to the will wherein he would not have otherwise benefitted under s. 15 Wills Act, 8 Wills Law Lagos.

Revival of a will

For the purpose of emphasis, revival is for revoked will or codicil, while republication is for an unrevoked will or codicil. Revival revives a revoked will – brings it back to life. Section 22 Wills Act 1837 provides two ways by which a will or codicil can be revived provided that the Will can still be found/in existence. They are:

1)      Re-execution in solemn form, that is with necessary formalities – in compliance with s. 9 Wills Act; or

2)      By a duly executed codicil showing an intention to revive the earlier document.

There must be clear intention to revive the revoked will or codicil. The intention must appear on the face of the will or codicil by express words referring to a will or codicil as having been revoked and expressing the intention to revive it. See IN THE GOODS OF DAVIS.

A Will which was revoked by destruction cannot be revived.

Summarily, the republication of Will is the confirmation or reaffirmation of the validity of the contents of a Will. See section 34 Wills Act. While the revival of a Will or codicil is the act of bringing back to life or operation a revoked Will or codicil so long as it is not destroyed. See section 22 Wills Law of Lagos.

BAR PART TWO QUESTION

The difference between the revival of a Will and the republication of a Will is that the Republication deals with a valid, subsisting and unrevoked Will; while revival deals with bringing a revoked Will back to life provided it was not revoked by destruction.: section 34 Wills Act and 22 wills Act respectively.

LIMITATIONS OR RESTRICTIONS TO A TESTATOR TESTAMENTARY CAPACITY

Under the Wills Act 1837, a testator has freedom to dispose of his property in any manner that he likes by a will as long as there is compliance with the provision of the Wills Act. In addition, the case of Banks v. Goodfellow restated this testamentary freedom as long as there is due compliance with conditions as laid down in the case by the court.

However, the otherwise unrestricted testamentary freedom of a testator has been restricted in some part of Nigeria. These restrictions are principally in three regards namely:

0.      Customary law restrictions under s. 1 Wills Law, Lagos. Section 3 Wills Law, Bendel state applicable to Edo and Delta state and the relevant sections in the Wills law of all Western Nigerian states.

1.      Islamic law restrictions found in the Wills Law of Northern Nigerian states

2.      By statute - reasonable financial provision to dependants - Wills Law Lagos state.

Customary Law

Idehen v Idehen

Lawal-Osula v Lawal-Osula

Egharevba v Oruonghae…. Igi-Ogbe cannot exist outside the Benin Kingdom.

It is pertinent to note that under the igi-Ogbe custom the first son takes the house of the deceased testator. If he pre deceases the testator, the next eldest surviving son of the testator will take the house.

Section 1 Wills Law Lagos state provides 'it shall be lawful for every person to bequeath or dispose of, by his will executed in accordance with the provisions of this law, all property to which he is entitled either in law or in equity at the time of his death provided that the provisions of this law shall not apply to any property which the testator had no power to dispose of by will or otherwise under customary law to which he was subject.

Section 3(1) Wills Law Edo state provides subject to any customary law relating thereto, it shall be lawful for every person to devise, bequeath or dispose of, by his will executed in manner hereinafter required, all real estate and all personal estate.

The Wills Law of Lagos provides strictly for properties as regard restrictions imposed by a customary law. The Wills Law Bendel state did not provide for such specific limitation.

However the Supreme Court in Lawal-Osula v. Lawal-Osula, Idehen v. Idehen, held that the customary law restriction is limited to certain properties bound by customary law and not the general testamentary capacity.

In Idehen's case, the court stated "subject to any customary law relating, there is only subject to any customary law affecting the property to be disposed of and not a qualification of the testator's capacity to make a will. For instance in Benin kingdom, the eldest surviving son of a Bini man is entitled to the Igiogbe which is the house in which the deceased lived and died in. Thus testator cannot by his will give the Igiogbe to any other person than the eldest surviving son. In the above cases, where the Igiogbe had been given to {an eldest son that had predeceased the testator (Idehen) and a wife (Lawal-Osula)} another person other than the eldest surviving son.

In the action by the eldest surviving son for declaration of the will void for being inconsistent with the Bini customary law, the Supreme Court had held the will valid except for the part bequeathing the Igiogbe to other persons. UWAIFO V UWAIFO

A person is subject to his customary law in this regard even though he is a Christian.

 The Igiogbe custom does not have extra-territorial application outside Benin kingdom. EGHAREVBA V ORUONGHAE

In Egharevba v. Oruonghae, the testator had once lived in Sapele, Delta state and built a house there. He went later to Benin city where he built a house which he had by will given the property in Delta state to his first wife for life time and on her death, his daughter. He had given the property in Benin to his first son. On grant of probate to the will, the defendant had contended that both properties are his Igiogbe and called a witness to testify in court. The plaintiff/first wife had actually sued defendant for trespass. The Court of Appeal stated that all cases on the point were decided on houses in Benin City. A Bini man having an Igiogbe outside Benin kingdom is a novel custom. It is settled that that custom is a question of fact which should be proved in cases where it has not assumed sufficient notoriety or judicially noticed. It is not enough that the evidence of an isolated case that a Bini man's Igiogbe can exist outside Benin kingdom has assumed the required notoriety. There is need for more cogent and convincing evidence that the custom of Igiogbe has extra-territorial application outside Benin kingdom.

Thus the Igiogbe custom only applies within Benin kingdom. The eldest son must perform the second burial ceremony called (Ukpawari) before he can inherit the house. The following are the instances where the eldest son will not inherit the Igiogbe.

·         Where the eldest son has not performed the second burial ceremony

·         Where the eldest son predeceased the testator - Idehen's case

·         Where the property is communally owned, thus no person can give what he does not have. Where the testator lived and died in a house that is not personally owned.

Islamic law restrictions

Section 4 of Wills Law Kwara State

It must be an express provision of the law restricting the testamentary capacity.

Islam as a religion has now become a restriction on the right of a testator to dispose of his property. In the old case of Yinusa v Adesubokan where a testator who was a Moslem by his will had given out his properties strictly in accordance with the Wills Act without having regard to the provisions of Islamic law. The plaintiff - his son, had brought the declaration of the will void as it is not in accordance with Islamic law. The trial court while relying on the Maliki Moslem law declared the will void. The Federal Supreme Court found otherwise and held that the provisions of the Maliki Moslem law clearly violates the provisions of the Wills Act, 1837 under which a testator can dispose of his property(s) real or personal as he pleases. A proper construction of s. 34(1) of the High Court Law which provide for application of Moslem can only apply such Moslem law which is not incompatible with the Wills Act.

In Ajibaye v. Ajibaye, the Court of Appeal interpreted it as that the property must be distributed in accordance with Islamic law after the lawful heirs were identified, thus the will should just be like a reproduction of the provisions of Islamic law. One of the principles of Islam in this regard is that a Moslem cannot by will give out more than one third (1/3) of his properties to persons other than his heirs. A person subject to Islamic law is a person immediately before his death is subject to Islamic law. Thus it is possible that a testator who was subject to Islamic law ceased from being subject to Islamic law immediately before his death by being a born again christian.

Restriction by statute

This is the limitation provided by a statute - s. 2(1) Wills Law Lagos state (among other Wills Law provisions) provides that where a person dies and is survived by any of the following persons

1)      The wife or wives or husband of the deceased

2)      A child of the deceased, that person may apply to the court for an order on the ground that disposition of the deceased estate effected by his will is not such to make reasonable financial provision for the applicant.

This is the reasonable financial provision for dependent of the testator. The categories of person that can apply had been listed. Only that a child would include adopted child who was adopted in accordance with the adoption law. Application to court for reasonable provision is to be done within 6 months of grant of probate to the will - s. 3 Wills Law Lagos by the Guardian of the Child. Reasonable financial provision would be reasoned in all the circumstances of the case for a husband or wife or wives to receive and whether or not that provision is required for his or her maintenance.

The application should be made to the High Court. The application should be made within 6 months OF GRANT OF PROBATE and it is the dependants who can bring an application.

PARTS OF A WILL, THEIR IMPORTANCE AND EFFECT ON A WILL

1. Commencement clause: this contains the description of the testator. The full names, alias and former names if any, the occupation and address of the testator. Where a testator or testatrix has a former name, it is important to state the name so that properties acquired under such name can be linked to the testator. Also to avoid making rectification to the will upon the grant or obtaining probate. Example

THIS IS THE LAST WILL OF ME Mr. AkiriAkiri formerly known as D Akiri, a legal practitioner of 1, Adeola Hopewell Street, Victoria Island, Lagos state.3

Failure to include the commencement clause will lead to uncertainty.

2. Date: the date states the day the  will is made or executed. The date is important because in the event of proving due execution of the will, the date inserted in the will may aid that task especially if there is any dispute on that point.

Also where there are two wills and it is not known which of the will is later, a date would be of great advantage in settling the issue. Failure to include date would not invalidate the will.

3. Revocation clause: a revocation clause expressly state that a testator has revoked all previous will. Failure to include it would mean that an earlier will will be read SIDE BY SIDE with the later will.. Example is I REVOKE ALL EARLIER TESTAMENTARY DOCUMENTS MADE BY ME.

4. Appointment clause: this is the clause where the executors and trustees of the testator are appointed.

5. Charging clause: the charging clause permits and mandates the personal representative/execution and other professionals rendering services to the deceased estate to charge for any services that they may render otherwise their services will be rendered gratuitously. Failure to include would mean the executors or professional cannot charge for the services rendered.

6. Gift clause: this contains all legacies bequeathed or devised to the beneficiaries. If it is not included it would mean that THERE IS NO WILL AB INITIO.

7. Residuary clause: this contains the person(s) who is entitled to the residuary estate or remainder gifts (gifts not covered expressly by the will). Failure to include means that residuary estate will fall into partial intestacy to be administered in accordance with the rules of administration of intestate estate. LETTERS OF ADMINISTRATION WILL BE GRANTED IN RESPECT OF THOSE ESTATE NOT COVERED BY THE WILL.

8. Testimonium: the testimonium links the testator to the dispositions made in the will. Failure to include it means that the will is worthless because there would be no link between the testator and the will. Example starts with IN WITNESS OF WHICH

9. Execution and attestation clause: this is where the testator and witnesses sign the will. Failure to include an execution and attestation clause means that the will is void - s. 9 Wills Act. Ize- Iyamu v Alonge.

PARTICULARS OF INSTRUCTIONS NEEDED TO DRAFT A WILL

a)      Particulars of testator: full names, former names, aliases, address

b)      Particulars of the attesting witnesses

c)      Particulars of the beneficiaries

d)     Particulars of the executors and trustees.

1)      Particulars of dispositions.

2)      Medical certificate

e)      Particulars of the estate of the testator (inventory of his estate)

f)       Instructions on provisions for substitutional gifts

g)      Religion and place of origin of the testator

h)      Whether the testator is married and the nature of the marriage

i)        Particulars of dependants on the testator, if any

j)        Particulars of guardians to be appointed for infant children if necessary

k)      Instructions on the remuneration of executors

l)        Instructions on the residuary clause.

DRAFTING OF A WILL

The clauses in a Will are:

Commencement

Date

Revocation clause

Appointment clause

Charging clause

Gift clause

Residuary clause

Testimonium

Execution

Attestation

Franking

Code: CDR, ACG, RTE, AF

 

1        THIS IS THE LAST WILL AND TESTAMENT OF ME JOSEPH JOHNSON, MALE, ADULT of No 5 Dare Ojo Street, Havana Estate, Arepo, Ogun State (formerly known as _____ OR also known as ____________) MADE this _______ day of _______, __________

2        I REVOKE ALL FORMER TESTAMENTARY DISPOSITIONS MADE BY ME.

3        I APPOINT _____ of ___________ and _________ of __________ to be the executors of my Will

4        I DIRECT that anypersonal representative , individual or form engaged in the administration of my estate shall charge and be paid the usual fees for work done, services rendered and time spent in the administration of my estate.

5        I I GIVE _____ to ________

Ii I GIVE--------to-----------of

Iii I GIVE ………to ------------

Iv

V

6        I GIVE the whole residue of my estate to such my children living at my death as attained the age of 21 years and if more than one in equal shares.

7        IN WITNESS OF WHICH I,the testator has executed this Testamentary document, in the manner below the day and year first above written.

8        Signed by

(by the within named testator)

_______________________

Charles Chukwuma

IN OUR JOINT PRESENCE AND THEN BY US IN HIS PRESENCE SUBSCRIBED OUR NAMES AS WITNESSES

________________________

NAME:

ADRESS:

OCCUPATION

SIGNATURE:

 

________________________

NimbeBons (Witness 2)

No 5, Peace Avenue, Oshorun Estate,

Isheri North, Lagos

 

Prepared by:

David Chidozie

Legal Practitioner/Property Consultant

Chaman Law Firm

 

SAMPLE DRAFT OF A CODICIL

THIS IS THE FIRST CODICIL TO THE WILL OF DR. GBENGA AGABI of 5, Thisday Avenue, Journalist Estate Phase 1, Arepo, Ogun State, made this ___ day of __2021.

1. I REVIVE AND CONFIRM by this codicil my said Will revoked by my marriage on 1st July 1980 to Miss IyaboTaiwo

2. WHEREAS Mrs Blessing Okon in my Will as my Executor has since died, NOW I APPOINT MrsTaiwoOkon of 34 Johnson Street, Akoka, Lagos to be my executor in place of Mrs Susan Okon(late), AND

3. I DIRECT that my Will shall be construed and have effect as if the name of the said MrsTaiwoOkon had been inserted therein throughout in the place of the said Mrs Susan Okon as an executor and trustee.

IN WITNESS OF WHICH I have executed this codicil in the manner below the day and year first above written……. IT IS EXECUTED IN THE SAME MANNER AS A WILL.

WRITTEN BY:

CHAMAN LAW FIRM TEAM

Email: info@chamanlawfirm.com/ chamanlawfirm@gmail.com

Tel: 08065553671, 08024200080