The law recognises the right of a
person to dispose of his property as he pleases, thus, the law
recognises the right of a person to make a Will. This right is guarded
jealously by the law, such that were it is established that the Will
made by a testator is not a product of the testator’s freewill, such a
will would be declared to be void. Yet, the right of a testator to make a
Will is not an unfettered one; it is a right which is restricted by the
law. Non-compliance with the set limitations could invalidate the will
or a gift under the will.
Generally, under the Wills Law, the following limitations have been identified to exist:
- Customary limitations;
- Limitations under Islamic Law; and
- Provision for family and dependants.
Customary limitations and limitations under Islamic law will be taken together.
CUSTOMARY AND ISLAMIC LIMITATIONS
The Wills Law of the various states of the Federation impose some limitations on the right of a testator to dispose of his property. For example, Section 3 of the Wills Law of Oyo State provides that:
It shall be lawful for every person to bequeath or dispose of, by his will executed in accordance with the law, all property to which he is entitled at the time of his death; provided that the provisions of the law shall not apply to
- any property to which the testator had no power to dispose of by will under customary law, to which he was subject,
- And to the will of a person who immediately before his death was subject to Islamic law.This provision is replicated in the Wills Law of other states, though differently worded.
Of all the customary limitations that exist under customary law, the concept of ‘IGIOGBE’ under the Bini customary law has been judicially noticed and pronounced upon severally by the courts.
‘Under Bini customary law the
The Igiogbe cannot be given to a person other than the eldest son by Will by a father, no matter how much he desires to do so. This is a limitation imposed by the customary law of the Bini people, recognized by statute and constantly upheld by the courts.
The court in Uwaifo V. uwaifo stated thus ‘the practice of a Bini customary law which gives the eldest son the prerogative to inherit the igiogbe has not changed from time immemorial. The right to inherit and possess such property vests only in the eldest son. The tradition takes precedence over and above the wishes of a deceased father no matter how strong he feels against his son as the prospective heir. It is a right vested in the eldest son and which cannot be divested by means of disinheritance.’
ISLAMIC LAW LIMITATION
Under Islamic law, a person is permitted to dispose of only one-
Under the Wills law of states that have the Islamic law limitation, a Muslim cannot make a will under the Wills law, but must make his will
The restriction of the right of a Muslim to dispose of his property
PROVISION FOR FAMILY AND DEPENDANTS
The Wills Law of a few states like Lagos, Abia
A testator has the freedom to give out his property by will as
The laws of states that have this provision empower a spouse
 The Igiogbe custom is peculiar to the Bini people of Benin in
 Idehen V. Idehen (1991) 5 NWLR Pt. 198 pg.382
 (2013) LPELR- 20389 (SC)
 Uwaifo v. Uwaifo
 (2007) LPELR-8775 (CA)
 See Section 4 of the Wills Law of Oyo State.