Unfortunately, in these parts of the world, there seems to still be some taboo about the making of a will and it is common to find people who are of the view that the making of a will is a certain pronouncement of death.When it comes to certainty, it has been said that there is nothing certain but death and taxes, and the making of a valid and unambiguous Will serves to make this inevitable part of life as rancour-free as possible for loved ones left behind. Moreso, a Testator’s hard earned and highly valued properties can be distributed in accordance with the Testator’s wishes as opposed to being distributed pursuant to intestacy rules which may contravene the actual wishes of the owner of such assets. This short article examines the legal implications of making a valid Will and the differences between a beneficiary of a Will and the Next- of -Kin in the eye of the Law.
What is a Will?
A Will is a legal document by which a person, (known as the Testator) expresses their wishes as to how their property is to be distributed at death. Accordingly, a Will is a testamentary document voluntarily made and executed according to law by a testator of sound mind, where he disposes his properties (real or personal) to beneficiaries to take effect after his death. The implication of this is that where a Testator dies testate (i.e. having made a valid will) , it allows him to express his feelings, and how he would like his assets to be distributed to his beneficiaries thereby reducing possible friction that could arise from the distribution of his assets otherwise. A person is said to have died intestate where they have not executed a valid will before their death. In such instance, the assets of the intestate person will be distributed either in accordance with customary law, common law or the Administration of Estate Laws in which the intestate was ordinarily resident in.
Characteristics of a Valid Will
- A Will must be in writing
- Signed by the Testator: Every valid Will must be signed by the Testator or alternatively the Testator may acknowledge his signature in the presence of a witness.
- Attestation: The signature of the Testator must be made or acknowledged by him in the presence of at least two witnesses who must be present at the same time.
- Statutory Age: In Lagos the testamentary age of the testator is 18 while under the Wills Act the testamentary age is 21.
Advantages of a Will
- It helps to prevent the problems of statutory and customary rules of intestacy.
- It gives the testator the opportunity to appoint his personal representatives.
- It confers extended power on the executor beyond the contemplation in the laws of administration of estate in each state.
- The testator has the opportunity to select and appoint guardians to watch over his children
- The testator has the opportunity to make positive display or demonstration of his wishes and desires.
Distinguishing between a Beneficiary and Next of -Kin.
Who is a Beneficiary?
The court in the case of Edem v Etubom tried to explain who a beneficiary is. The court held in that case that “the essence of spending precious time to write a Will is to indicate in very clear terms those who should benefit from the will. For a person to qualify to as a beneficiary in a Will or codicil, his name must be clearly spelt out”.
There is a general misconception as to the legal position of a next-of-kin being the same as that of a beneficiary in the event of a Testator’s demise.However, in the eyes of the law, the appointment of a person as next-of-kin does not qualify that person as a beneficiary in the Will of the Testator.Where a person has died testate, the issue of next-of-kin is irrelevant and the assets of the deceased will be distributed according to what is stated in the Will.
The position is nevertheless the same where the deceased dies intestate. The position of the law is that when a person dies intestate, the question as to who will inherit his assets is a question to be determined by law, that is to say, either customary law (which includes Islamic law), Common Law or the relevant Administration of Estates Law and not whom the deceased mentioned as next-of-kin. For example, where customary law is applicable, the next-of-kin are those who under the relevant native law and custom are entitled to inherit his estate.
The follow up question to the above, is how then can one determine the law to be applied in sharing the property of an intestate person? The applicable law in distributing the estate of the deceased shall be determined by the incidence of marriage of the deceased. If a deceased contracted a statutory marriage, succession of his wealth will be in accordance with either Common law or the Administration of Estates Law, depending on the jurisdiction. The Common Law will apply to a deceased of a statutory marriage domiciled in the Northern and Eastern states of Nigeria and outside Nigeria, whilst the Administration of Estate Law applies to deceased of a statutory marriage domiciled in England, Lagos and states of the former western region of Nigeria.Customary Law which includes Islamic Law applies to deceased of customary law marriage domiciled in Nigeria, living either as a traditionalist or Muslim.
Under English Law and the Administration of Estate Laws of various states, the surviving spouse together with the children of the deceased inherits the deceased’s estate to the exclusion of other persons. The parents of the deceased rank after the surviving spouse and children, followed by brothers and sisters of the full blood, brothers and sisters of half-blood, grandparents, aunties and uncles of full blood relation to the parents of the deceased etc.
Where however the deceased contracted a customary marriage, then customary law will determine who will inherit the property of the deceased. That is to say in the circumstance, the heirs are those who under the applicable native law and custom are entitled to inherit the estate.
In view of the above, under the Nigerian law of intestate succession, one cannot choose his heir under the pretext of next-of-kin; the law imposes heirs on him. For example it is the surviving spouse and children of an intestate who married under the Marriage Act that are his heirs. The intestate cannot therefore, by naming only one of them or any of his other blood relatives his next-of-kin, scheme them out of inheritance as the act of naming his next-of-kin does not amount to testamentary disposition.
In view of the foregoing, there is nothing really important in the appointment of a person as next-of-kin as far as succession is concerned in Nigeria. A next-of-kin is simply the first point of contact in the case where something happens to a person. The next-of-kin is that individual who is allowed to make decisions for a person in times of emergency or where a person is not available or unable to make a decision themselves. One of the things a next-of-kin can do after the demise of the testator is perhaps to ensure that all incidental steps are taken towards obtaining letter of administration from the probate. Therefore, it is erroneous to think that a “next-of-kin” is synonymous with or the same as a “beneficiary”.
Hence a next-of-kin can only inherit if and only if he is named as a beneficiary in the Testator’s will (where there is a valid will) or is deemed a beneficiary according to the relevant intestacy rules (where there is not).
It is imperative to state that the essence of a Will is to ensure that the property of a Testator is distributed in the manner stated therein. Where a Testator has the testamentary capacity, has clearly identified the assets and his beneficiaries he can go on with the preparation of his Will. The naming of a next-of-kin for certain purposes should not be relied on as an alternative to the execution of a Will. Lastly, it is advisable for any person intending to prepare a Will to consult a legal practitioner to provide a guide on all the processes involved to ensure that a valid Will is prepared.
Corps Member attached to FRC
 Asika V Atuanya (2013) 14 NWLR (Pt. 1375) p.510.SC
 Section 4 of the Wills Law of Lagos and Section 9 of Wills Act
 Section 4(1) of the Wills law of Lagos.
 Ize-iyamu v Alonge (2007) All FWLR (Pt.371) 1570 at 1587)
 Section 3 of the Wills Law of Lagos
 Okelola v Boyle (1998)2 NWLR (Pt. 539) 533
 (2016) LPELR-41252 (CA)
 Obuzez V. Obuzez (2007) 10 NWLR (Pt. 1043) 430
 Section 49 of the Administration of Estate Law of Lagos, Kekereogun & Ors v. Oshodi (1971) LPELR-1686(SC)
O.G Chukkol, what the law says about next of kin in Nigeria.
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