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Things to remember > WILLS > Flashcards

WILLS Flashcards

1
Q

What is the best way to ensure that the testator’s funeral directives are met?

A

Funeral directives therefore should be in separate documents or letter enclosed in an envelope and kept with a younger relative of the testator and produce it when the time due.
This is due to the fact that grant to the executors is not done immediately(expiration of 14 days in Lagos & 7 in ABJ)

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2
Q

What do you mean by saying a will is ambulatory?

A

It is changeable during the lifetime of the testator.

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3
Q

What are the Features of a Will?

A
  1. it is testamentary-Speaks after the death of the testator
  2. It is ambulatory
  3. It must be in writing
  4. The testator must have testamentary capacity
  5. It must be made voluntary(testamentary freedom)
  6. It must dispose of a gift to be valid.
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4
Q

Functions of codicil?

A
  1. it can revoke a will
  2. it can revive a will
  3. it can republish a will
  4. it can alter/add a will

It cannot exist independent of a will.

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5
Q

Applicable laws in Wills?

A
  1. Wills Act 1837
  2. Wills Laws of Various States
  3. Wills Laws of Lagos State
  4. Administration of Estate Laws
  5. Illiterate Protection Act
  6. The Marriage Act
  7. HCCPR 2019
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6
Q

Types of Wills?

A
  1. Formal/Statutory
  2. Nuncupative/Oral
  3. Holographic
  4. Privileged will
  5. Joint Will
  6. Reciprocal will
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7
Q

Persons to whom privilege will apply to?

A
  1. Soldiers in actual military service
  2. Crew members Commercial airline(applicable in Lagos)
  3. Mariners at sea
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8
Q

Conditions for Oral Will?

A
  1. Made in the presence of two witnesses
  2. Imminent fear of death
  3. Voluntarily made
  4. Testamentary intention & sound mind
  5. Sufficiently describes the properties
    If a person survives it, it nullifies the will.
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9
Q

Features of privileged will under AFA?

A
  1. It must be in writing
  2. Must relate to personal property
  3. Executed in front of at least 1 witness
  4. Testamentary intention & capacity
    S 276
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10
Q

Advantages of making a will?

A
  1. Prevents the issue of intestacy
  2. Ensures that the testator’s wishes are reflected after his demise
  3. Provisions to appoint a guardian to take care of the testator’s infants
  4. freedom of appointing people as executors
  5. proper distribution of his properties
  6. The testator the opportunity of making specialty gifts or donations
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11
Q

Disadvantages of making a will?

A
  1. Promotes disunity amongst family
  2. Conflict of interest may arise
  3. The clash between customs/culture and wills.
  4. Mistake may render the will void
  5. Strict formalities
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12
Q

What must a testator possess before making a will?

A
  1. Testamentary capacity
  2. Testamentary intention(ANIMUS TESTANDI)
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13
Q

What is Testamentary capacity?

A

ARM
-Age
-Restrictions imposed by customary law
-Mental Capacity

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14
Q

What is the age restriction to make a will under Wills Act and Wills Law of Lag?

A
  1. 21 years under Sec 7 of WILLS ACT
  2. 18 years under Sec 3 of WILLS LAW

Every adult with a sound disposing mind and memory can make a will.

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15
Q

Can a blind person make and attest to a will?

A

YES! they can make a will so far they possess TESTAMENTARY INTENTION & CAPACITY-INSITFUL V CHRISTIAN
It must be attested to in front of a notary public/Mag.

However, they cannot attest to a WILL.

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16
Q

Can an illiterate make and attest to a will?

A

YES! they can make a will so far they possess TESTAMENTARY INTENTION & CAPACITY-INSITFUL V CHRISTIAN
It must be attested to in front of a notary public/Mag.

An illiterate protection jurat must be inserted.

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17
Q

What happens when a minor makes a will and subsequent codicil was made to ratify it?

A

It will still invalid. A prudent solicitor should advice the minor to make another will once he has attained the age of majority.
However if the minor falls under the exception of privilege will, he may be permitted

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18
Q

Can a convict make a will?

A

YES! they must posses testamentary capacity & intention.
They can also attest but it may be subject to review in the event of a dispute.

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19
Q

Can a mentally ill person attest to a will?

A

YES! during his period of lucid intervals. He may also attest during the period of lucid intervals
OKELOLA V BOYLE

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20
Q

When can a testator be said to have mental capacity?

A

Where the testator is of sound disposing mind as at:
1. At the time he was giving the instructions
2. At the time the will was being executed

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21
Q

Is a will going to be valid where the testator had sound disposing mind at the time he was giving instructions but loses it before execution of the will?

A

Generally no!OKELOLA V BOYLE
except certain conditions can be proved-PARKER V FELGATE
1. The testator had sound disposing mind as at the time he was giving instructions to the solicitor
2. There was no intermediary
3. The lawyer followed the testator’s instructions

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22
Q

Is there an exception to the no intermediary rule in PARKER V FELGATE?

A

YES!
BATTAN SINGH v ARMICHAND
1. The instructions must be unambiguous and clear
2. The intermediary understood the instructions of the testator
3. He communicated the instructions to the solicitor honestly
4. The solicitor understood the instructions clearly

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23
Q

What is the degree of mental capacity test in a Will?

A

BANKS v GOODSFELLOW
a. he understands the nature of a will and its purpose
b. He must understand the extent of the property he is disposing of;
c. He must understand and recollect the persons who are the objects of his bounty; and
d. He must understand the manner on which property is to be distributed amongst beneficiaries

24
Q

Can a person suffering from delusions create a valid will?

A

YES! where he passes the test in BANKS V GOODSFELLOW

Where the delusion influences the dispositions under the will, it will be invalid.

25
Q

Can a person with failing bodily health make a will?

A

YES!
Failing bodily health will not affect mental capacity, so far he passes the test in BANKS V GOODSFELLOW.

26
Q

What are the conditions for validity of a will?

A
  1. It must be in writing
  2. Duly executed
  3. Attestation by two credible witnesses
  4. It was made voluntary
  5. There are no restrictions on capacity.
27
Q

What are the conditions for the validity of a will?

A
  1. It must be in writing
  2. Duly executed
  3. Attestation by two credible witnesses
  4. It must be voluntary
  5. Presence of testamentary capacity & intention
28
Q

What are modes of discharge of Burden of proof of validity?

A

RADS
1. Presumption of Regularity
2. Presumption of Affirmative Evidence
3. Presumption of Due execution
4. Presumption of Sound Mind

29
Q

What are modes of discharge of Burden of proof of validity?

A

RADS
1. Presumption of Regularity
2. Presumption of Affirmative Evidence
3. Presumption of Due execution
4. Presumption of Sound Mind

30
Q

What is presumption of regularity in a will?

A

Where a Will appears to be ex-facie regular in the absence of fraud, there is a rebuttable presumption that it was duly executed.
SEC 168 EA

31
Q

What is presumption of affirmative evidence in a will?

A

Basically involves evidence to show that the testator understood the will and the conduct of the testator before and after making the will OR piece of evidence to show that the will is valid. This could include evidence showing the activities of the testator before, during and after the making of the Will, Evidence of the testator’s general habit and course of lif

32
Q

Who has the burden of proof where a will is being challenged?

A

The propounder needs (the executor or administrators) to show that the testator had testamentary capacity and intention at the time the will was made.
Once this is discharged, it shifts to the challenger.

33
Q

Can a person sign a will on behalf of a testator?

A

YES BUT IT MUST BE IN THE TESTATOR’S PRESENCE.
Note that he can sign anywhere
IN THE GOOFS OF MARSHALL

34
Q

What happens after a will is signed and dispositions are made after the signature?

A

Any gift coming after the signature will be invalid.

35
Q

Modes of Executing a will?(signature)

A
  1. Personally
  2. Through an agent
  3. Through an acknowledgment signature
36
Q

Conditions for personal signature of a testator?

A
  1. The will must be signed by the testator
  2. It must be signed in front of the two credible witnesses
  3. The two witnesses must attest to the will in front of the testator(they need not attest in front of each other)
37
Q

Conditions for acknowledgment signature of a testator?

A

Here the will has been signed by the testator but it has not been duly executed by the witnesses
1. The testator must acknowledge his signature in front of the witnesses being present at the same time
2. The witnesses must then attest in the presence the testator.

38
Q

Conditions for execution by delegation?

A
  1. It must be done in the presence of the testator and the two witnesses
  2. The two witnesses then attests to the will in the presence of the testator not each other.
39
Q

Can a beneficiary or their spouse attest to a will that they are benefiting from?

A

Generally NO!(there are exceptions)

This is because of the rule that says where a beneficiary or a spouse of a beneficiary attest to a will, he will lose his benefit under the will

40
Q

What are the exceptions to the general rule that states that a beneficiary cannot attest to a will?

A
  1. Where there’s a subsequent codicil affirming the gift
  2. Privileged will-S 276 AFA
  3. Where there are 2 other witnesses apart from the beneficiaries
  4. Where the spouse of a beneficiary has attested to the will before marriage to the beneficiary
  5. Where the gift is an obligation owed
41
Q

Limitations on testamentary capacity?

A

1.Customary Law
2. Islamic Law
3. Statutory Law

42
Q

What is the Igi Ogbe in Benin?

A

It is a basically a customary law restriction that stipulates that the 1st son of a testator shall benefit the house of the deceased person(where he has performed the burial rites). Where the testator devise the igi ogbe on another person, the gift will fail but it will not affect the entire will.
IDEHEN V IDEHEN

43
Q

Where the property is not located in Benin, will the igi ogbe apply?

A

NO!

The Igi ogbe custom does not have extra-territorial application outside Benin kingdom,

44
Q

What is islamic restrictions in the disposition of properties?

A

A muslim cannot disposed more than 1/3 of his properties to persons that are not his heirs
Applicable in the North + OYO+KWARA
Not applicable in Lagos.

45
Q

What are statutory restrictions in disposing a will?

A

Where the testator has dependents and he has not made any provisions for them, the dependents can challenge the will within 6 months of grant of probate at the HC.

46
Q

What is a legacy and devise?

A

Legacy-is for personal & moveable properties
Devises-are for real properties & immovable properties

47
Q

Draft a sample charging clause?

A

I declare that my executors in their acting in their professional services towards my estate shall be entitled to charge their usual fees for services rendered in the administration of my estate.

48
Q

What are the types of gifts/legacy?

A
  1. Specific
  2. General
  3. Demonstrative
  4. Pecuniary
  5. Residuary
49
Q

what is specific gift?

A

this is a gift which is easily traceable, identifiable or ascertainable as it is properly described and belonging to the testator. Most times the pronoun ‘MY’ is used.
not subject to abatement & ranks in priority

50
Q

What is general legacy?

A

it is the opposite of specific legacy as it is a gift which is not easily identifiable.
“A” is usually used.
It suffers from abatement.

51
Q

What is demonstrative gift?

A

this is a gift in between specific and general gifts 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.

52
Q

What is residual gift?

A

they are remainder of the estate. Residuary gift is a directive gift in a will specifying as to how to manage or apply the remainder of the testator’s gift after all the gifts in the will have been distributed to their respective beneficiaries.

53
Q

What are the extent of residuary gifts?

A
  1. Failed gifts
  2. Properties the testator acquired after his death
  3. All properties which the testator forgot to be included as gifts
  4. Gifts that have been renounced by the beneficiaries
54
Q

Effect of absence of residuary clause?

A

It may lead to partial intestacy
SEC 53 AEL

55
Q

Circumstances where a gift may fail?

A

PAAL POD CUP
1. Presence of vitiating factors
2. Ademption
3. Abatement
4. Lapse
5. Public policy
6. Operation of law
7. Disclaimer
8. Conditional gifts
9. Uncertainty
Property not owned by the testator

56
Q

Examples of presence of vitiating factors in a Will?

A
  1. Undue influence-cannot vitiate a will except when it amounts to coercion and overrides the testator’s testamentary freedom
  2. Mistake
  3. Fraud

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