Right Of Inheritance: Wills

By Ubong S. Ebong Esq. -
Earlier I did mention that I will talk about wills in details later so here we go. The issue of wills is important to human rights because it deals with the rights of persons to transfer ownership of their properties to any beneficiary of their choice & the right of those beneficiaries to acquire ownership of both the moveable & immoveable property that has been willed to them. Considering the facts & practices prevalent in Nigeria & indeed the world as a whole, the importance of wills cannot be over-emphasized. And now to our discussion proper.

First of all inheritance is a tricky but very important issue. Generally, the intention of every person is to pass on his/her possessions to his/her loved ones. Most times this becomes very difficult due to the fact that many persons are always interested in these possessions especially when the owner dies. Unless properly handled, persons who the owner never intended to inherit his/her properties usually oppress the deceased person's immediate family (who should rightfully inherit these properties) & forcefully take over these properties. Nobody wants to die, but we must prepare for it because death is unpredictable & inevitable. Fortunately, the law has provided significant protections for the immediate family of deceased persons to ensure they are not bullied out of their inheritance by unfriendly characters. One of such protections provided by law is what we call "Wills".

A will may be defined as a legal document which contains the wishes & intentions of a person, particularly as it concerns his/her properties, to be carried out after the person's death. A person who makes a will is called a Testator. The features of a will are:
1) it takes effect after the death of the testator,
2) it can be revoked or amended by the testator at anytime before he/she dies,
3) it must be made by the testator voluntarily or independently,
4) it must be properly made, signed & witnessed in accordance with the law,
5) it must clearly identify the properties to be shared & the beneficiaries.

Some of the advantages of having a will are:
1) to avoid situations where your properties will be inherited by person(s) you never wanted to give your property to,
2) to have the choice of choosing people you trust to manage your properties,
3) to have the opportunity of choosing legal guardians for your children if you so desire, 
4) it saves time & money in managing & distributing your properties,
5) it allows you to give detailed instructions of things you want to be done after your demise & how you want them to be done, even including how you want your burial to be conducted,
5) it guarantees peace of mind both for you & your loved ones since things will be taken care of according to your own wishes in an orderly fashion free from chaos.

Now for the next points I'm deliberately going to gloss over it because they are technical & lengthy so if you want to know more then please consult your lawyer who will provide adequate step by step guidance. Mind you consultation isn't free.

To make a valid Will you must be above the minimum required age & you must have the necessary mental capacity. The required minimum age is fixed by the laws of each state but most state laws use 18years (your lawyer will guide you on the applicable age for your state). On the issue of mental capacity, you must be of sound mind at the time of making the will. Even if you suffer episodes of mental issues, you can still make a valid Will provided you are sane at the material time of making the will. Also on this issue of mental capacity, your will can only be valid if it is done voluntarily out of your own freewill. Consequently, if there is any existing factor which suppresses your freewill or coerces you into making the will against your wish, such factor(s) will invalidate the will. The testator must fully understand what he/she is doing & the implications of his/her actions.

Other than the above, a will can be rendered invalid due to several other factors such as fraud, lack of due execution, suspicious circumstances, subsequent marriages etc. Sometimes the will itself may be valid but the gifts made within the will could be invalid. As a result of these, it is imperative that you consult a lawyer to guide you properly in making a valid will.

Before I end this discussion let me also talk about personal representatives. Personal representatives are the people who will carry out the instructions of the testator as contained in his/her will. Usually, the testator is advised to name the person(s) he/she wants to be his/her personal representative(s). But where there the testator fails to do this, the administration of estate laws of each state have listed the person(s) that will be responsible for managing the properties of any deceased person. 

It is important to note that even in cases where there is no will, these state laws still determine the proper person to manage the properties of a deceased person provided that the deceased person was married under statutory law as opposed to customary or Islamic law marriages. In other words, if the deceased was married under statutory law then it is the law that will determine who manages his/her properties when he/she dies. A statutory law marriage is one that is done according to the relevant provisions of law with evidence of a marriage certificate duly issued by the appropriate government authority. It is not only done in courts (or what people commonly call "court marriage") but can also be done in recognized places of worship like churches.

Having explained that, the simple summary is that where there is a will, the testator can name the person(s) he/she wants to manage & share his/her properties, & such person(s) must comply strictly with the instructions of the testator. Where there is no will, or where there is a will but no one was named as the testator's personal representative, then the right person to manage & share the deceased person's properties are the people listed in the law provided the deceased person was married under statutory law. And contrary to the usual occurrence of extended family members claiming their ' brother's ' or ' sister's ' properties, the right person that should control a deceased person's properties is the widow or widower according to the law. In the absence of the widow or widower, it should be the deceased's children before one can even talk of other persons such as extended family members.

Enough said, consult your lawyer. Do not joke with your inheritance but do well to secure the inheritance of your loved ones.

#KYR


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