#executorresponsibilities

REQUIREMENT OF A VALID WILL

A valid will must be in writing: It is imperative that a person has to take note of this important condition that a will can be typed, printed, or handwritten. It is a legally binding document that must be made in writing in order for it to be enforceable.

An individual of legal age can make a valid, He/she must be at least 18 years of age, with sound mind meaning that he/she understands that a will is being made and is the same as at the time of making the will.

A will must be made voluntarily without any external influence.

The will must be signed by the testator or any person he chooses on his behalf who then must sign in his presence and by his directions.

The testator must acknowledge his signature in presence of two (2) witnesses who must be present at the same time. Acknowledgement can be by word or conduct

The witnesses must themselves sign the will in presence of the testator. It is important to note that a witness cannot be a beneficiary to a will, and any gift given to a witness will be null and void. Choosing people who are not beneficiary to the will as witnesses will prevent a conflict of interest and ensure confidentiality. Therefore, the testator’s spouse and children cannot attest to a will, since they are definitely going to be beneficiaries in it.

A blind person can make a valid Will and  there must be a Caveat in the Will stating that the Will was read to the blind person and was signed by the person. However a Will can not be attested by a blind person.

There is however an exception to the making of a Will, a person who is not of a legal age and serves under any form of military service can make a valid Will.

CONTENTS OF A VALID WILL

The full name and address of the testator.

The names and address of the executors who will be in charge of the testator’s assets and ensure that the wishes under the will are carried out.

The full names and addresses of the beneficiaries in the will, and where the beneficiaries are minors, the particulars of the guardian appointed for them.

A full list and particulars of the testator’s assets; all the assets of the testator both real and personal should be listed, and how he wants the assets shared among the beneficiaries.

The names and addresses of witnesses to the will.

Signatures of the testator and that of the Witnesses.

REVOCATION OF A WILL

There are four ways in which a Will may be revoked as follows; by marriage, by making another Will, by writing to revoke and by destruction. 

Revocation of Will by Marriage: The testator’s marriage will automatically revoke any existing wills and codicils.This revocation occurs by operation of law, whether or not the testator wishes or intends such a revocation. Unfortunately, not all married persons are privy to the knowledge of this deemed revocation and the law may occasionally be viewed as creating some hardship to the disappointed beneficiaries. The rationale for this rule however, is to ensure that any children and new spouse will benefit, that is by creating an intestacy in the absence of a new will. In Section 11 Wills Edict 1990 0f Lagos State, the typical law states:

 “Every Will made by a man or woman shall be revoked by his or her marriage (other than a marriage in accordance with customary law) except: A will expressed to be made in contemplation of the celebration of that marriage. Provided that the names of the parties to the marriage contemplated are clearly stated”.

 An exception to this general rule is made if, and only if, 

Wills made in exercise of a power of appointment in which the person appointed will not default of the appointment but it passes to his or her executor or administrator.

Wills expressed to be made in contemplation of celebration of a marriage where the names of the parties to the marriage contemplated are clearly stated.

Revocation of Will by Voluntary Act: Pursuant to Section 14 of the Wills Act, a will may be revoked, in whole or in part, by the formal execution of a written declaration of revocation, whether this declaration stands alone or is found as part of a subsequent will or codicil. To be effective, however, the testator must intend to rescind the prior will, in whole or in part. It requires both a written declaration expressing the testator’s intent to revoke the prior will and requires that such a declaration be properly executed in compliance with the Wills Act formalities. Most often the revocation will be included in a new will or codicil however that is not required so long as the declaration of revocation is properly executed in compliance with the Wills Act formalities. From a practice standpoint therefore, where a testator wishes to make changes to a previous will, we suggest the safest practice is usually to start again by drawing a new will revoking the previous will entirely and thus avoiding any confusion. The words of revocation are not clear, the earlier will remain.