LEGAL: When Is Too Early To Write A Will? ~ Toyin Omoniyi

will-blog-toyinMy mother called me a few weeks back and required that I draw up her will for her. My mind immediately raced like a Formula 4 race car and with round, bulging eyes laden with concern, I asked her why she suddenly wanted a will.

Such reaction is rampant among most of us as we generally believe that writing a will automatically draws us closer to our graves. I am yet to find out the relationship between writing a will and dying though *side eye*. But I think it is because of the requirements and circumstances that surround a will. Some people also say that because they do not have any tangible property, they do not see the need to have a will.

According to the law, a will can only come into life once the writer of the will dies so that even though the writer is dead, he is still able to speak through his will. That is why it is important to have a will so that the wishes, intentions and properties (no matter how little) of the dead are distributed accordingly upon death.

Sometime back, a young man in his forties died unexpectedly and left behind a wife and seven kids. Obviously, he had no plans of dying at such an early age. Fortunately, he had been enlightened on the importance of having a will and had prepared a valid will, spelling out exactly how he wanted his properties to be shared. This singular act saved his wife from lots of misery from family members and she was able to use the proceeds from the will to support herself and her children.

The writer of a will is known as a testator. The testator can appoint any person of choice to act as the executor to the will. An executor here is the person who carries out the wishes of the testator according to the provisions of the will. It is advisable that the testator appoints more than one executor just in case one of the executors is unavailable. The testator can also choose to change the executor(s) or the contents of the will any time.

An individual can easily draft his/her will, however, if you think you have a complicated estate/property and a more complicated family (which is rampant in almost every Nigerian family), it is important to have a lawyer draft your will. Generally, it is advisable to have a lawyer draft a will because the lawyer will ensure that the will meets all the legal requirements. Some of the requirements are:

  • The will must be in writing.
  • The testator must have the intention of sharing his properties.
  • The testator must be of legal age and of a sane mind.
  • The testator must have drafted the will without any undue influence or pressure from anybody.
  • The will must be signed by the testator and witnessed by at least two independent people.
  • The witnesses must also attest to the will in the presence of the testator.
  • The testator must clearly state and describe the beneficiaries to the will.

It is important for both the testator and the lawyer drafting the will to make sure that none of the beneficiaries to the will is a witness to the will. This is because witnesses to a will are not allowed to benefit from the will. So if a testator is not properly advised and allows the beneficiary to also attest to his will, he would be depriving the beneficiary from profiting from that will. This also applies to the spouse of the testator except if the spouse will not be a beneficiary to the will.

There is also provision for a testator to plan out his funeral arrangements in his will. We have seen people who stated their desire to be buried in their hometowns while others wanted to be cremated. Still yet, some others stated clearly in their wills that they wanted to donate some of their useful body parts to hospitals and laboratories for medical use.

Once the testator dies, his will can be opened and read and the executor(s) will be expected to obey the instructions in the will. The role of an executor is very important because if the executor is not reliable, he may not follow the wishes of the testator and the whole purpose of the will would be defeated.

Do you have a valid will? If not, what are your reservations to preparing your will? Please share your thoughts by dropping a comment in the section below.

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