Wills and Codicils1,2 Flashcards
What are the reasons for making a will?
It excludes or limits customary rules of inheritance. A testator can appoint trusted persons to manage his estate. A valid will confers authority on executors to act immediately after death. It ensures positive display of wishes. It is easier to obtain probate. It gives peace of mind to the testator. Special directives can be given for property disposition and burial.
What are the reasons for the undesirability of making a will?
Ignorance, illiteracy, lack of exposure, and superstitions.
What is the capacity to make a will?
The testator must possess testamentary capacity, which includes age and mental capacity.
What is the age requirement to make a will in Lagos State?
Only adults from 18 years can make wills in Lagos State, while 21 years is required in states under the Wills Act.
What is the exception to the age requirement for making a will?
Privileged wills can be made by military members below the age limit, including soldiers in actual service, seamen, mariners, and airline crew.
What is mental capacity in the context of making a will?
A testator must have a sound-disposing mind at the time of giving instructions and at the time of execution.
What are the tests for determining testamentary capacity?
The testator must understand the nature and effect of making a will, recollect properties to dispose of, appreciate intended beneficiaries, and state how the estate is to be distributed.
Who has the onus of proof of mental capacity?
The propounder of the will must establish that the will was duly executed and that the testator was in a good state of mind.
What presumption exists regarding a testator’s mental capacity?
It is presumed that a testator was sane at the time of making the will, based on the Latin maxim ‘omnia prae sumuntur rite esse acta’.
What precautionary measures can a solicitor take regarding mental capacity?
Prepare a confirmatory statement signed by the testator and obtain a medical report confirming mental capacity.
Can a blind person make a will?
Yes, but a special attestation clause must be included to show the will was read to him.
What are the requirements for a valid will?
The will must be in writing, signed by the testator, and attested by at least two witnesses.
What happens if a beneficiary or their spouse attests a will?
The gift to them will be null and void, with exceptions for certain circumstances.
What are vitiating elements of a valid will?
Insane delusion, undue influence, fraud, mistake, and suspicious circumstances.
What constitutes insane delusion?
A belief no rational person could hold, which influences the will’s provisions.
What is undue influence?
Coercion to make a will in a particular way, which must be proven.
What are suspicious circumstances?
Situations that cast doubt on the testator’s free will in making the will.
What is the nature of a will?
A will is ambulatory and may be altered during the testator’s lifetime.
What are the classes of gifts under a will?
Specific legacy, general legacy, demonstrative legacy, pecuniary legacy, and residuary legacy.
What is a specific legacy?
A gift of identifiable property that is specifically described.
Example: ‘I give My Toyota Camry car to my daughter Bimpe.’
What is a general legacy?
A gift made in general terms, not referring to a specific piece of the estate.
Example: ‘A gift of a Camry car to my son Joel.’
What is a demonstrative legacy?
A gift directed to be satisfied from a specific fund or property.
Example: ‘I give 50,000 naira to Bimpe to be drawn from my savings account.’
What is a pecuniary legacy?
Strictly money dispositions, which may be specific, demonstrative, or general.
Example: ‘I give N50,000 to my wife Nkechi to be paid monthly.’
What is a residuary legacy?
The remainder of the estate after all other gifts and debts have been fulfilled.
Example: ‘I give all the remainder of my properties to my children in equal share.’
