Daily Law Tips (Tip 710) by Onyekachi Umah, Esq., LL.M, ACIArb(UK)
Introduction:
Dead men don’t talk, but their intentions before death can be seen and heard from their graves through their “WILLs”. A “WILL” is a document containing the clear wishes of a dead person (including how to dispose his/her property), made freely by the dead person, with a clear mind before death, in the presence of witnesses. A “Will” comes into action after the death of the maker (testator) and cannot be changed at that point. Living persons often respect dead people and more often, courts will respect the wishes of the dead. Who wants to fight the dead? I will show you who, how and why, shortly.
There are few states in Nigeria where a spouse (husband/wife) and or any child of a dead person that left a “WILL” can approach a court to cancel the “WILL” on the ground that the “WILL” did not make reasonable financial provisions for the spouse or child of the dead person. With this, a person can make a “WILL” but cannot provide little finance or attempt to disinherit (remove) his/her spouse or any child from his “WILL”. It is common to find some person dish out lasting punishments to their loved ones, by excluding them from their “WILLs”.
This work focuses on the limitations placed on a testator (a dead person that made a WILL) stopping the testator from excluding certain persons from his/her “WILL”. It will answer the question; “Is there freedom for a dead person to share his property as he/she likes through his “WILL”?”. It will consider the “You Must Finish Your Work Principle”.
“You Must Finish Your Work Principle”:
There is common joke in Nigeria, that people never finish working in Nigeria even after death, since Nigerians (and many Africans) often call on their ancestors to fight for them, through prayers and incantation. Does this also have a place in law and jurisprudence (philosophy of law) in Nigeria? You will find out shortly.
“Giving” is love and man gives in life and in death. When a living person gives anything, it is a gift but when a dead person gives it is a testament. It is simple logic, that a person can only give what he owns; and this seems to be the only logical limitation on a living person when it comes to giving. On the side, for a dead person, is there freedom for a dead person to share his property as he/she likes? This question will be answered under the major principle of “You Must Finish Your Work”.
Presently, there is no nationally approved (federal) law on “WILL” rather states in Nigeria have their own unique laws on “WILL”. Most of the laws on “WILL” in states in Nigeria, where from laws on “WILL” of the regions in Nigeria. Hence, states in a particular region tend to have same/similar laws on “WILL”. Regions in this context are; Northern, Eastern, Western and Mid-Western regions of Nigeria. Ahead of regional laws on “WILL”, “During the colonial era, the Wills Act 1837 of England which empowered a testator to dispose of his properties – real and personal – as he pleased, applied as an Act of general application throughout Nigeria.”, quoting Justice MOHAMMED BELLO ,J.S.C of the Supreme Court in the case of IDEHEN & ORS v. IDEHEN & ORS.
Lagos State, a state in the Western region of Nigeria has a unique provision in their law on “WILL”. Lagos State is a trailblazer in many fronts and leads Nigeria and states in Nigeria on pragmatic innovative legislation. By its “Wills Law of Lagos State Cap W2 Laws of Lagos State 2004”, a dead person’s “WILL” can be challenged and modified in a court of law for not making reasonable financial provision for a spouse or any child of the dead person. So, the sacredness of a “WILL” in Lagos State can be compromise, where any of any wife/wives/husband or child of the maker of the “WILL” validly argues in court that the “WILL” did not make reasonable financial provision for him/her or them.
The proximity of Oyo State to Lagos State, has left Oyo State happy, as Oyo State learns a lot from Lagos State. Oyo State is also in the Western region of Nigeria and has a law on “WILL” that is similar to that of Lagos State. However, the law on “WILL” in Oyo State has gone further to expand the list of persons that can approach a court to argue that a “WILL” left behind by a dead person did not make reasonable financial provision for them. In Oyo State, the following persons that can challenge a “WILL” for lack of reasonable financial provision, are: wife or husband of the dead person, a child of the dead person, a parent, brother or sister of the dead person, so far as such persons were being taken care of by the dead person just before the death of the dead person.
The logic behind this limitation on “WILL” is to ensure that persons who depend on a dead person for care, before the death of the dead person are not left stranded and out of the property of their benefactor because of death. This ensures continuity of care and saves the society from some form of financial collapse. On the lighter side, it ensures that death does not terminate any care, so that even a dead person still continues his/her work of care, through any property he/she left behind. So, with this, a dead person cannot run away from his/her responsibilities rather he/she must finish his/her work; “You Must Finish Your Work Principle”.
Conclusion & Recommendation:
The essence of “WILL” is to manage and dispose the property of a dead person according to the wishes of the dead person. After all, if not for death, the dead person could have disposed his/her property according to his/her wish. The only most logical limitation/restriction to any disposal is that a person should only dispose what he or she does not own. One should not give what one doesn’t not own, whether living or dead.
However, some laws on “WILL” in states in Nigeria have placed other sorts of limitations on the powers and rights of a dead person to dispose his/her property through a “WILL”. In Lagos State and Oyo State, the valid “WILL” of a dead person can be modified by a court of law, simply because a wife/husband or child of the dead person validly argues that the “WILL” did not make reasonable provision for him/her. And, Oyo State has even expanded the list of persons that can make such argument, to include any wife or husband of the dead person, a child of the dead person, a parent, brother or sister of the dead person, where such persons were being taken care of by the dead person, just before the death of the dead person. Reasonable Financial Provision has been argued to mean adequate financial provisions according to the wealth of the dead person and the normal standard of living of his family members. This helps to avoid over night rich persons but to maintain an already existing life style.
By all lenses, the above discussed limitation is a clear violation of the rights of a living person that made a “WILL” by the time such person dies. Unfortunately, dead men don’t talk and have no rights. The limitation abuses the sacredness of “WILL” as the golden wishes of a dead person, that must be respected by all persons. It also makes it impossible for people to issue long lasting punishments through “WILL” to their family members, since such family members can apply for the “WILL” to be modified and for a reasonable financial provision to be made for the, contrary to the intentions of the “WILL”. Above all that has been aid, a law is a law, until the law is amended by the legislatures. Good and bad laws are the products of legislatures and those who seek change of bad laws, must embrace amendment and must approach the legislatures.
My authorities, are:
1. Sections 1, 2, 3, 4, 5 and 6 of the Constitution of the Federal Republic of Nigeria, 1999.
2. Sections 1, 2, 26 and 27 of the Wills Law of Lagos State, 1990 Cap W2 Laws of Lagos State 2004
3. Sections 1, 2, 3, and 4 of the Wills Edict of Oyo State 1990
4. The Jugement of the Supreme Court (on the history of Wills Act in Nigeria) in the case of IDEHEN & ORS v. IDEHEN & ORS. (1991) LPELR-1416(SC)
5. Onyekachi Umah, “How To Recover Property Of The Dead In Nigeria. (A Legal Guide On Probate Matters In Nigeria)” (LearnNigerianLaws.com, 10 March 2016) <https://learnnigerianlaws.com/how-to-recover-property-of-the-dead/ > accessed 5 December 2020
6. Obiora Atuegwu Egwuatu, “Limits Of A Testator On Freedom Of Will Testament” (nigerianlawguru,) <http://www.nigerianlawguru.com/articles/family%20law/LIMITS%20OF%20A%20TESTATOR%20ON%20FREEDOM%20OF%20WILL%20TESTAMENT.pdf > accessed 5 December 2020.
7. Onyekachi Umah, “Requirements Of A Valid/Genuine Will” (LearnNigerianLaws.com, 13 July 2020) <https://learnnigerianlaws.com/requirements-of-a-valid-genuine-will-daily-law-tips-tip-608-by-onyekachi-umah-esq-ll-m-aciarbuk/ > accessed 5 December 2020.
8. Onyekachi Umah, “Can An Inheritance Under A “Will” Be Rejected?” (LearnNigerianLaws.com, 6 May 2020)<https://learnnigerianlaws.com/can-an-inheritance-under-a-will-be-rejected-daily-law-tips-tip-563-by-onyekachi-umah-esq-llm-aciarbuk/ > accessed 5 December 2020
9. Onyekachi Umah, “He 4 Facts Courts Must Consider In Evaluating Expert Opinions On Handwriting And Signatures On Wills” (LearnNigerianLaws.com, 2 November 2019) <https://learnnigerianlaws.com/the-4-facts-courts-must-consider-in-evaluating-expert-opinions-on-handwriting-and-signatures-on-wills-daily-law-tips-tip-449-by-onyekachi-umah-esq-llm-aciarb-uk/ > accessed 5 December 2020
10. Onyekachi Umah, “Acceptable Age For Making Of Wills In Nigeria” (LearnNigerianLaws.com, 25 April 2019) <https://learnnigerianlaws.com/acceptable-age-for-making-of-wills-in-nigeria-daily-law-tips-tip-318-by-onyekachi-umah-esq-llm-aciarb-uk/ > accessed 5 December 2020
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