10 Mistakes to Avoid When Writing a Will

Death is an inevitable fact of life. It is a debt everyone must pay in respective of age, religion or social status. The enlightened are known by the way and manner they prepare for it. Without mincing words, making a Will is one of the most pragmatic ways a person can prepare for this unavoidable fate of mankind. More importantly, when a Will is in place, family members of the deceased are saved from unnecessary tussle, conflict and chaos that accompany the estate of man who dies without specific instructions concerning his estate. Generally speaking, the surest way to rest in peace even in death, is for a person to make proper arrangements for his family while his faculties are still intact.

What is a Will?

A Will is a legal document voluntarily executed according to the prevailing law by a person of a sound mind by which he/she prescribes the manner his/her assets (including real and personal properties) will be distributed after death. The person making the will is called testator and the person to whom the gifts are given under the Will is called beneficiary.

In Nigeria, every adult person including, a man, a woman, an educated person or an illiterate and persons with physical challenges having appropriate disposing mind can make a valid Will. Apparently, the rights of minors to make a Will are restricted, because they are often viewed as persons with legal disability. However, where such minor is a soldier in actual military service, a seaman, a mariner or crew of commercial airline being at sea, then, this legal restriction will not apply. That is to say, in such circumstances, a minor can make a valid will. Validity of a Will is important if such will, will get the needed legal backing for enforcement. Therefore, to ensure your Will is valid, we recommend that a lawyer should be consulted. However, it must be the pointed out that there is no law that prohibits a non-lawyer from drafting a Will. But to be safe, you need one.

We shall now consider 10 points to note when writing a Will.

1. Writing a Will Without Professional Assistance

yes, I said anybody can daft his or her Will because no form is required. However, a Will is an artificial creation of statute, and strict compliance to statute is required and chances are that you may not know all the legal requirements by yourself.

2. Asking a Prospective Beneficiary to Draft the Will

This is obviously a bad move. A prospective beneficiary whether or not is a legal practitioner who is loved by the testator, should not draft nor attest to the Will. If the will is ever contested in court, the presumption of undue influence may be used against him/her, and the unlucky beneficiary may end up losing his gift.

3. Younger Witnesses are Preferred

for obvious reasons it not advisable to use an older person as your witness in a Will. There is a rebuttable presumption that older people die before the young. Using older persons means you may outlive your witness. Thereby defeating the purpose of having one. The witnesses are meant to attest to the validity of the Will after the death of the testator.

4. Improper custody of the Will

It is okay to be discreet about having a Will but ensure your executor is aware and has access to the original copy. This is because, only the original copy will be admitted for probate. Also, it helps to prevent distortion. Recommended place for safe keeping include lodgement with the probate registry, banks, or kept with your lawyer.

5. Failure to Sign the Will

No matter how well a Will is drafted or couch, if it is not signed by the owner, it becomes another worthless piece of paper. Appending a signature to a document help to confirm its ownership. Otherwise, it becomes difficult to connect the deceased person to the document. In the case of a blind or illiterate person, jurat is added.

6. Giving What Can’t be Given in a Will

It is fairly settled that only personal assets can be disposed in a Will. Thus, certain properties are not disposable. For instance, you cannot give out a family property or a property jointly owned with another person. Also, according to the Benin customs, a man cannot give out his Igiogbe (his primary place of abode before he died). It is the inheritance of his first surviving son.

7. The Belief that only Real Property is Befitting for a Will

I have heard people say they do not have any property to give. Hence, they think writing a will is unnecessary. This is not true. You can give out your personal belongings such as clothes, wristwatch, books, cars, money, rare painting, shares etc.

8. Will can be amended.

The testator can alter his/her Will any time before death. This can be done with an instrument called codicil. Several circumstances may warrant the amendment or alterations of a Will. In which case, the latter supersede the former. Provided all necessary procedures are followed.

9. Making a Will Does not affect the Lifespan of the Maker.

The negative attitude people have toward having a Will is not unconnected to the myth that people who do so, are calling for their own deaths. Others' simply views it as a bad omen.

 

10. Using a Minor as a Witness in a Will

Minors are people of legal disability. It is usually not advisable to use them.

 

 

 

 

 

 

This article is intended to provide general information on the subject matter. Professional advice should be sought about the reader’s specific circumstances.  You may contact the undernamed solicitor for more specific advice.

 

 

 

 

Nosakhare Okuonghae

Legal Practitioner/Legal Information Professional

nosakhareokuonsofficial@gmail.com

+234-9156497843