WHAT IS A WILL?
A will is a legal document by which a person known as the testator/maker spells out the manner in which his monies, assets and properties are to be distributed to certain people or organizations known as beneficiaries after his death. He also names or appoints other people known as executors to administer and manage his estate/property after his death. A will clearly states a person’s final wishes regarding the distribution of his property, and the care of his minor children after his death.
Any person with a sound mind and mental capacity can make a will. A will must be signed by the maker of the will in the presence of at least two witnesses who are not beneficiaries to the will. It must meet the legal requirements provided by law. If it does not meet these standards, the contents or instructions in the will may not be carried out.
The legal requirements for drafting a valid will are:
- The maker must clearly identify himself as the maker of the will.
- The maker must be of a sound mind and show that he has the mental capacity to transfer his property and that he does so freely and willingly.
- The will must state the beneficiaries of the properties and assets.
- The maker must sign and date the will, usually in the presence of at least two witnesses who will not be benefitting from the will.
- The maker’s signature must be placed at the end of the will. If he fails to do so, any other thing written after the signature will be ignored.
A will has to be voluntarily made, executed and attested to and only takes effect after death. The will can be changed as often as the maker wishes until the death of the maker when it then comes into life. In fact, it is a good idea to review a will from time to time because circumstances change every day.
There are instances where the maker of a will may choose to change or add some other things to his will. In such a case, he does not necessarily have to change the entire will. He can simply make an additional will known as a codicil where he can then add or alter the original will.
A codicil is an amendment or addition to the original will. Where the maker wants to change his will, he may prepare a codicil or make an entire new will. The codicil must also meet all the legal requirements of a will to make it valid and it must refer to the original will.
It is not compulsory but very important to get a lawyer to help draw up a will to avoid making tangible mistakes. This is because the person who made the will cannot come from the dead to explain himself, or to correct any technical error in the will so there is little room for mistake. A will only comes into effect once the maker is dead. A common error in making a home-made will is using a beneficiary as a witness because in law, this deprives the person witnessing from benefitting from the will.
WHY IS A WILL NECESSARY?
The essence of creating a will is to give the maker the power or right to determine how his properties and assets, personal belongings, landed properties, shares etc would be distributed after his death. A person who dies without a will has no control over the distribution of his assets after his death.
After creating the will, it is important to keep it in a safe place where it can easily be accessed upon the death of the maker of the will. Putting the will in capable hands will ensure that it is made available when it is needed. It can be kept with the person’s lawyer, in a safety deposit box, a fire-proof safe at home, in the bank or with a trusted relation.
If a person fails to make a will before his death, then the courts will provide administrators to manage his properties. However, the only way to ensure that a person’s wishes are carried out and that loved ones are protected after death is to make a valid will.
A will gives definite instructions to be carried out after the death of the maker and should state the following:
- Beneficiaries – these can be family members, friends, spouse, children or charitable organizations.
- Guardian(s) for children who are not yet of age.
- Executors – these are people who are given the authority to manage the assets, pay any debts, expenses and taxes that may arise upon the death of the maker.
A will makes it much easier for family and friends to sort out the affairs of a deceased person after his death. Writing a will is especially important for those who have children or other family members who depend on them financially, or who have particular people they want to leave their assets to.
There are several advantages of making a will and some of them include:
- The maker is able to share his assets and arrange his affairs before his death.
- He is able to choose the particular people he trusts as executors of his will who will carry out his wishes and desires.
- He can appoint people of his choice as guardians for his young children.
- The appointed executors can begin to manage the property as soon as the maker dies.
- The maker of the will has the opportunity to distribute his assets as he pleases.
There are no magic words that must be used in creating a will. Anyone can write a will but the maker of the will must make sure to use clear and unambiguous language to accurately describe his wishes. Before a will is prepared, it is necessary to compile a list of all the assets and debts of the maker. It is advisable to get a lawyer to help out especially if the person has a large estate and lots of properties worth several millions of naira.
Finally, the main qualification to be eligible for making a will is the owning of property. No adult that owns property is too young to write a will.