We go to school, grow up and work hard to acquire things that will keep us and our families comfortable and happy. When we die, we take none of the things that we acquire with us, so what happens to all that we acquire after we are deceased? Well, to use the all-purpose legal response, it depends. What happens to property after the owner is deceased depends on factors such as whether or not the deceased wrote a will, applicable laws, custom, and religion.
In reality, one has no control over what happens to their estate after they die, but writing a will is one way to assert one’s desires for the distribution of their property and handling of their affairs after death. A will can also be used to set up a trust or appoint guardians for children or disabled adults. Many people avoid talking about wills because the subject of death can be unnerving.
What is a Will?
A will is a document by which a person directs their estate to be distributed upon death. It is just that simple. The estate could include real and personal property and intellectual property.
There are basically two types of wills – formal and holographic. A formal will is a typed will signed by the testator or testatrix (the person making the will) before two competent witnesses who are not beneficiaries in the will. The rationale disallowing witnesses from benefiting from the will is to avoid fraud where possible. A holographic will is fully handwritten by the testator or testatrix, with no cancellations, erasures, corrections or amendments. A holographic will is typically unattested, which means that a witness is not needed.
Other Types of Wills
Statutory Wills
Statutory will are those made in accordance with specific laws.
Mutual Wills
A mutual will is one made by two (or more) people, each promising to give their property to each other and specifying what happens to the property when the last person dies. This is usually used by married couples who then leave all to their surviving child(ren).
Oral (Nuncupative) Wills
Oral wills are rarely used these days. Traditionally, they are used by a person in fear of imminent death or facing unusual circumstances.
Writing Your Will
If you have lived a simple life with few property acquisitions, and only a handful of people to “settle”, you can go ahead and write a simple form will. If on the other hand, you have lived a good life, acquired a ton of property, successfully hidden some skeletons in your closet, then you and your beneficiaries would be better off if you start in your lawyer’s office to decide what will be conferred in a will or by a trust or other gift instrument. Tax and probate considerations will usually determine your choice of a will or trust.
Note, however, that a will is generally not the place to state your wishes for your funeral. Wills are generally read after the funeral, so if you want to be cremated and that instruction is in your will, you will most likely be under a cold, marble slab before your beneficiaries find out that you wanted to be taken out in a blaze of fire.
Some Key Things to Note About Wills
What Are the Elements of a Valid Will?
For a will to be valid, the testator must be a legal adult. The age of a legal adult for the purpose of writing a will is defined by law. This age varies depending on where you live. In Abia State in Nigeria, for instance, the legal age to write a valid will is 15 years. An exception to the age rule applies to underage seamen, marines at sea, and crew of airlines – but it is rarer these days to find underage persons in these jobs.
The other requirement is that the testator must be of sound mind. The testator must have the mental capacity to make a will and must write the will voluntarily, out of his own free and independent will, without undue influence from any person. The testator, at the time of making the will, particularly at the time of giving the instructions for the distribution of property, must understand the nature of the act of making a will and its effects. That is, the testator must understand and recollect the property that is to be shared and the persons who are beneficiaries of the property.
To be valid, a will must meet the formal requirements of will drafting. These requirements are set out by law and therefore may vary from one jurisdiction to another. However, there are some universal requirements that appear in the will laws of different jurisdictions. The will must be dated, signed, and witnessed. Importantly, witnesses to a will cannot be beneficiaries of the will.
Your Executor
You will appoint an executor in your will. This is your enforcer, your agent, your personal representative after you are gone. The executor of the will controls and manages the assets of the testator (you/the person who has made the will) according to the will. This person also files the will in the probate office. You can appoint your lawyer, accountant, friend or relative, or trustee institutions as your executor. Choosing a family member or friend as executor may cause bad blood in the family but will certainly be cheaper than appointing your lawyer or an institution who will charge a ‘fair and reasonable’ fee for their service as executor. Being an executor is a big responsibility, so make sure that the person you have in mind is willing and able to take on the role.
The Effect of Marriage on a Will
A marriage subsequent to an existing will may automatically revoke the will. As far as I am aware, in common law jurisdictions (places that derived their legal system from England including Nigeria), unless the will was made in anticipation of the said marriage, a subsequent marriage revokes an existing will. This automatic revocation recognises that marriage is a major life event and also that the new spouse should be given adequate protection by law. Other rules may apply for customary or Islamic law.
Codicil
They say the only thing permanent is change so there may come a time when you need to modify your existing will. This could happen for several reasons: birth or adoption of a new child, marriage (as I already mentioned), discovery of a long-lost sister, divorce, acquisition of new property, whatever. A codicil is the legally recognised way to alter your will.
You may choose to make a completely new will, which must include a clause that revokes any previous will or codicil. It is advisable but not necessary to destroy the old document and communicate the destruction to your lawyer and witnesses.
Perfecting Your Will
A will is not foolproof, which is why it is advisable to use a lawyer knowledgeable in estate planning if you have a large estate and many beneficiaries. If your will is not clearly written the result leaves your intent uncertain, your will open to challenges, and your property landing in the hands of unintended beneficiaries.
