Essential Features of a Valid Will

Drafting a will is a crucial part of estate planning. It is not just about deciding who gets what after a testator is gone; a Will or Codicil is a legal tool that allows a testator to express their wishes on important matters. This includes selecting trustworthy people to handle their affairs, making arrangements for the care of their kids, and more. A well-planned will give a clear plan for decisions that need to be made after the testator's demise. Hence, understanding how to create a will is crucial for anyone who wants to protect their legacy and provide for their loved ones with care and planning.

For this reason, this guide will highlight the importance of having a will, the features of a valid will, and the role of the executors who carry out the testator's wishes. It also explains the detailed process of giving out gifts and wraps up by describing how to keep their will safe, pointing out secure options for storage.

Why it is Important to Have a Will

Making a will is extremely important for the following reasons:

The will makes it possible for the testator to distribute their properties in the way and manner they want to.
The will allows the testator to elect persons who will administer the will.
The will enables the testator to make arrangements for their minor children. For example, appointing guardians to care for their minor children upon their demise and setting up trusts for their children.
Through a will, a testator can grant gifts to persons who are not their relatives.
The testator can make their funeral arrangements through their will.
The will excludes and limits the application of customary rules on inheritance. For example, according to some customs in some states in Nigeria, when a man dies, his first son will inherit the father's house. In this case, if the father had a will before his death where the house was gifted to someone else, the instructions in the will will prevail.

Features of a Will

For a will or codicil to be valid, the following must be present:

1. The Will Must be in Writing

For a will to be valid, it should be in writing. The testator should be able to transcribe all their wishes and intentions in writing.

2. Testamentary Capacity

The person making the will must have capacity at the make of the will.

Capacity here refers to the mental ability of the testator to understand the nature of the act of making a will and the extent of one's property. In most states in Nigeria, for example, Lagos State, the legal capacity to make a will is 18 years.

The rationale behind having a minimum age for testamentary capacity is to ensure that individuals have reached an age where they are likely to possess the requisite understanding to make important decisions about the distribution of their assets after death.

3. The Will Must be Made Voluntarily

The testator should make the will voluntarily. This means that the testator must have written the will without any form of coercion, fraud, or undue influence (use of influence or manipulation).

4. Mental Capacity

For a will to be valid, the testator must be mentally sound at the making of the will. The law presumes mental capacity until proven otherwise.

In this case, a sound mind does not mean that the testator must have a perfect memory, but that the person knows that he or she is making a will, he or she understands the extent of their properties and the effects of making a will. In other words, the testator must have the intention to make the instructions in the will.

Factors that can affect the validity of a will include delusion, fraud, coercion, undue influence or mistake:

"Delusion" is a firm mistaken belief in something which is far from being accurate. A delusional person can make a valid will provided that the delusion does not affect the disposition of the will.
"Coercion" is the use of threat or force to make a will in a certain way. For example, if one of the beneficiaries forces the testator to grant him a gift in the will, this act invalidates the will if proven in court.
"Undue influence" is the use of manipulation or improper persuasion to drive the testator's decision.
A "mistake of fact" invalidates the will. For instance, if the testator mistook Jeremy for David when he intended to give the gift to Jeremy if proven, it may be fatal to the validity of the will.

5. Witnesses

There must be at least two witnesses who will attest to the making of the will. Under Nigerian law, for a will to be valid, at least two persons are required to attest to a will.

Due to some of their conditions, some people cannot serve as witnesses in a will. Examples of people who are unauthorized to be a witness include blind persons (because they would not be able to read the written document), children (because of their age) and beneficiaries in the will, including the testator's partner (because they are interested parties and would not be neutral regarding the testator's will).

The law requires the signature of two witnesses to validate a will or codicil. The witnesses should sign (attest) the will in the presence of the testator, but they may not sign the will in the presence of each other.

6. Signing the Will

For a will to be valid, it must be properly executed by the testator. The will may be signed by the testator in his name or by some other persons in the testator's presence and by the testator's directions. In all cases, two witnesses must be present when the testator is signing the will or when the signature of the testator is being acknowledged.

The signature may be an initial, a cross or a rubber stamp, but is not a seal. If the testator is an illiterate or blind person, a jurat should be inserted in the will.

In the context of a will, a jurat serves as a certification by a notary public, commission for oaths, or authorized official that the testator has signed the will in their presence in accordance with legal requirements. This serves as a formal declaration by the notary or authorized official that they have explained the contents of the will to the illiterate or blind testator. The jurat includes details such as the date, venue, and the fact that the testator signed the will in the presence of the authorized official.

7. Executors of the Will

The executors are persons with the responsibility of carrying out the instructions in the will. They ensure that the wishes of the testator are fulfilled. A testator may elect one or more executors, who may also be beneficiaries of the will. However, an executor cannot be a witness in a will.

Distribution of Gifts in a Will

One of the most important provisions included in a will is the distribution of the testator's properties. Under the will, the testator can make specific bequests and include residuary clauses for the remainder of the undistributed gifts.

1. Specific Bequests

Specific bequests are gifts the testator can give to specific individuals or entities. These gifts can include things like houses, jewelry, company shares, money, or other specific items. For instance, a testator might decide to give a house to a family member or donate a sum of money to a charity.

Note that the testator must specify what they are gifting and who should receive the gift. For example: "I gift my two-bedroom apartment located at 23 Adeyemi Johnson Avenue, Ikoyi, Lagos to Adebimpe Oyelusi."

2. Residuary Clause

In the will, the testator can add a special part called the residuary clause. This part is important because it deals with the remainder of the testator's assets not named in specific gifts.

The remainder of a testator's assets are assets the testator may acquire after writing the will. It may include profits, interests, or dividends accrued on stocks or other financial instruments, gifts, or other property the testator receives after writing the will.

With the residuary clause, the testator can decide how to share the remaining parts of their estate among beneficiaries. For example, a testator might choose to give the remaining assets to a specific person or persons. The residuary clause is crucial for the following:

Distribution of Unspecified Assets: The residuary clause ensures that all aspects of the testator's estate are accounted for and distributed according to the testator's wishes.
Avoiding Intestacy: The residuary clause is necessary to avoid intestacy (a condition where a person dies without a will). This is because any assets not covered by specific bequests could be subject to the rules of intestacy if the will is silent on their distribution. Intestacy laws determine how the estate is distributed among legal heirs, which may not align with the testator's intentions.
Preventing Future Disputes: A well-drafted residuary clause helps prevent confusion and disputes among beneficiaries. It clearly outlines how any remaining assets are to be distributed, minimizing the potential for disagreements or legal challenges.

3. Helpful Tips on Gift Distribution in a Will

Be Clear and Specific: Let your will specify clearly who gets what after your demise so nobody gets confused. Include information about the people getting your properties, like their full names and how they are related to you.
Keep Your Will Updated: Read your will often and change it if new changes occur in your life, like getting married, having kids, or if someone in your family passes away. Make sure your will always shows what you own and what you want to happen with it.
Document Your Assets: Documenting your assets involves creating a detailed record of the entire properties, belongings, investments, and financial accounts a testator owns. This can include a list of real estate properties, bank accounts, investments (stocks, bonds, and other assets), personal belongings of value, business interests, intellectual property (patents, copyrights), and debts and liabilities. A comprehensive asset list is crucial for accurate estate distribution while reducing the risk of overlooking any part of your estate. It also provides clarity on ownership and value, minimizing misunderstandings or disputes among beneficiaries.
Seek Legal Advice: Ask a lawyer for advice to make sure your will follows the rules. They can also help with taxes to make sure your money goes where you want it to.

Custody of Wills

After making the will, the will should be kept in a place that can be accessible to the executors of the will. Ideally, the will should be kept at the probate registry as it ensures safe custody and facilitates the grant of probate. However, the will can be kept in either of the following places:

In the custody of a solicitor;
In the custody of the executors to the will;
With a friend or trusted relative;
With the testator in a place that is known to another person.

About the Author

Vivian Umelue is an attorney and legal templates programmer at Wonder.Legal and is based in Nigeria.