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Section 3. Public law
Ekeh Richards U., University of Uyo, PhD in Public Law,
Faculty of Law E-mail: richards.ekeh@yahoo.com Innocent V. O. Modo, University of Uyo, PhD in Anthropology, Faculty of Social Sciences E-mail: ogotel@yahoo.com
The curtailment of testamentary freedom in the making of Wills in Nigeria
Abstract: By the instrumentality of Wills, man is elevated to the status of enjoying a life of two worlds having been conferred by statutes with the impetus of speaking from the dead. Wills, being the platform for the advancement of a generational link is modeled along the principle of giving persons full testamentary powers to dispose of their properties in accordance with their wishes. This article examines the concept ofWills and factors that curtail the testamentary freedom of persons in the making of Wills in Nigeria. It is therefore recommended that because of the nature of kinship system in Nigeria the wills Act of 1837 and the testator's intent should be subject to the customary law of the land.
Keywords: Public Law, Wills, Customary Law, Generational link.
Introduction pire to higher heights in life becomes ameliorated by
Death, over the ages, has been, and still a night- making ofWills [1]. The uncertainties of the future mare to man's varied efforts to success. This is due and the dangers of dying intestate whereby owners to its abrupt nature and occurrence. The fear of death of property rights were unable to indicate on how has been the major drawback to man's adventurous their affairs could be arranged after their death was quest to greatness in several fronts of human endeav- attended to. This article examines the meaning and ours. The question worst posed is, what happens to definition ofWills, the importance of making Wills man's untiring efforts and labour after his death? Who and the curtailment of testamentary freedom in the takes what and how are his desires and life ambitions making ofWill in Nigeria
met? It was in an effort to find answers to the above Will is a document by which a person directs questions that the concept of Wills was created in on how his or her estate is to be distributed after order to help persons to determine what happens his death. It is a legal expression of an individual's to their properties after their death. The Wills Act wishes about the disposition of his or her property 1837 is a statute of general application received into after death [2]. It is the disposition of real and perNigeria on 1st January 1900. The Act confers power sonal property of the testator to take effect after his to those who wish to dispose of their property by death. In some climes, when disposition is to operate Wills by showing them the formalities that the law upon personal property, it is sometimes refered to would recognize for that purpose. The fear of the as a testament and when upon real estate, it is called unknown being one of the limitations of man to as- a devise, while the instrument harbouring both the
personal and real estate is referred to as the 'last Will and testament'. Basically, the making of a formal Will bears the feature of a three pronged edifice which involves the person who expresses the wish or intention to make a Will known as the Testator, the person who carries out the expressed wishes for intention known as the Executors/Trustees and finally the person in whose interest the expressed wishes or intentions favours, known as the Beneficiary. Under the English Wills Act of 1837, which by extension, is applicable to Nigeria, certain features or characteristics must be present for there to be a valid Will. Further, it is apposite to state that apart from the formal Wills as defined above, there is also the Customary Will or Nuncupative Will which is not expressed in a document but oral without the necessary formalities to be valid.
Prior to the introduction of the Wills Act of 1837, succession and devolution of property rights under the customary law system in Nigeria was by way of nuncupative Wills. This is oral Will which is unknown to making of Wills under the English Wills Act of 1837. Under the customary law system, the requirement of writing and other formalities necessary in the execution of Wills is unknown [3]. Distribution of estate of the deceased is usually based by the verbal directives of the deceased showing on how his estate is to devolve amongst his heirs. Oral disposition of the deceased estate may be expressed by way of designating his property as a family property for the benefit and enjoyment of members of the family only [4]. This was an issue in the case of Nelson VNelson, where a testator, on his death bed gave his self-acquired property by oral disposition to his eldest son to hold in trust for himself and all the children of the deceased [5]. The deceased may voluntarily make an oral declaration on his death bed in the presence of witnesses which would have a binding force on the members of his family. This directives are usually carried out by the elders and in conformity with the prevailing native law and custom of the deceased person.
Again, in certain developed climes, nuncupative Wills are invalid and where they are partially allowed, the amount that may be allowed to be conveyed is limited by statute, and traditionally limited to personal property as opposed to real property. In view
of the foregoing discourse on the conceptual definition of Wills from both the English Wills and the Nigerian Customary Law perspectives, it may then be safe to define Wills as a legal instrument for the transfer of estate or property rights from the Testator through a medium called the Executors to the Beneficiaries.
Nature and Characteristics of Will
Wills posses certain basic characteristics which distinguished it from other legal documents. One of such fundamental characteristics of a Will is that it is ambulatory. This means that the dispositions made under Wills are subject to amendment or revocation because the testator is still alive and capable of making a new will. In other words, the testator retains substantially the entire control of the property as surely as he lives until death [2]. The import ofWills being ambulatory is to the effect that it is a document made in anticipation of a major occurrence or event. That major event is the death or demise of the testator. The implication is that the Will cannot start to operate even where all necessary formalities have been complied with, until the testator dies. Wills, according to Section 24 of the Wills Act, 1837, are consummated when the testator dies and until that happens, it remains a testamentary instrument which the testator may freely revoke or alter. This major characteristic ofWills is the striking difference between Wills and other similar legal documents such as gift made inter-vivos such as donatio mortis causa which operates from the time of execution [6]. The testator has the right to revoke, cancel or modify the Will as many times as he pleases before death. He has full power to alter his affairs in accordance with changed circumstances resulting may be, due to new information or good fortune which may have come his way after making his first Will.
The Legal Capacity to Make Wills
Similar to the general law, and by the provisions of Section 7 of the Wills Act 1837, the testator must be twenty-one years of age to possess the capacity to make a Will. However other Wills Law of various states of the Federation prescribe different ages for which a testator is required to attain to be qualified to make Wills. Where a testator lacks the requisite age, any Will made by him shall be invalid. However,
by virtue of section 11 of the Wills Act 1837 and
section 6 of the Wills Law of Lagos State, where the testator is an infant soldier in active military service or a mariner or seaman in the sea or crew of commercial airline being at sea or in the air, he could make a Will. This is an exception to the general rule in view of the exigencies and nature of their work whereby these persons are allowed to execute a privileged Will. In other words, it was recognised that the Wills of certain classes ofpersons needed to be given preferential treatment so that they are not denied of their rights to dispose of their properties in accordance with their wishes in times of imminent danger or death. It may however be proper to mention that under the common law, certain categories of persons are also forbidden to make Wills and dispose land. Infants and lunatics were incapable of making Wills under both the customary and the general law. Nonetheless, the word "infants" does not accommodate all shades of people under the age of twenty-one years because in customary law, majority or adulthood is not determined as per the number of years attained but by the age of puberty which varies from individual to individual [7].
Again, under the customary law, a lunatic cannot make a Will while under the general law, a person suffering from mental disorder can make a Will at lucid intervals if he possesses the mind sufficiently active to appreciate the nature of the transaction in which he engages, the extent of his own property, the objects of his bounty armed with sufficient judgment and understanding which is free from pressure and undue influence [7]. The testator must understand, appreciate and vividly recollect the persons he wants to benefit or those who should take benefits of his property called the beneficiaries and the way he wants the property to be shared amongst his beneficiaries.
Curtailment of Testamentary Freedom to Disposition of Property in Nigeria
One of the colonial statutes which operated as a statute of general application throughout Nigeria was the Wills Act 1837. The Act empowered testators to dispose of their properties, whether real or personal property in accordance with their wishes. At its reception in Nigeria as a statute of general application, any native law which was incompatible with the Wills Act of1837 was unenforceable while
the provisions of the Act prevailed. By then, a testator had the right to dispose of his property irrespective of any incumberance with the native law and custom on the property [8].
The unfettered power of testators to make Wills in accordance with their wishes was provided in section 3 ofthe Wills Act 1837. By virtue ofthis provision, there was no limitation upon the freedom of the testator. The testator could by testamentary disposition under the Act, decide the course of inheritance and the pattern of succession at customary law [9]. The Wills Act 1837 did not provide for the consequences of any incompatibility with customary law, hence testamentary dispositions could be made regardless of limitations imposed by customary law [9]. One of the Chief aims of making Wills is to allow owners of property the right to indicate on how their affairs on their death could be arranged.
However, the position as stated above was altered, for the first time, in Nigeria, when local legislation on the law ofWills took into consideration local situations in the testamentary freedom of persons wishing to dispose of their properties through the making of Wills. The curtailment of testamentary freedom was first introduced in Nigeria by the ingenuity of legislators in the former Western Nigeria when in 1958, the legislators passed a domestic Act of parliament to replace the Wills Act of 1837 in that region. In carrying out the legislative task, the Wills Law of the former Western region was enacted with obvious amendments contrary to the Wills Act of 1837. It is believed that the principal aim of the amendment is to ensure the observance of customary law in the exercise of testamentary freedom in the making ofWills. It is to ensure that, devise, bequests or dispositions under the Will should not be inconsistent with customary law and must be governed and controlled by customary law. The principal or major phrase that altered the previous state of affairs, thereby curtailing the testamentary freedom of persons was the insertion of the phrase "subject to the customary law relating thereto".
It may be trite to mention that by virtue of the insertion of the phrase "subject to customary law relating thereto" to section 3 of the Wills Law, it becomes obvious that the Wills Act of 1837 and the Wills Laws are no longer the same but distinct in-
struments regulating the making ofWills in Nigeria. The effect of the amendment of section 3 of the Wills Law is that, the phrase "subject to customary law relating thereto" clearly and unequivocally renders the capacity to make, devise, bequeath any disposition by Will subject to customary law and thus curtailed the testamentary freedom of testators in the States now constituting the former Western region.
Curtailment by Application to Court by Family Members and Dependants
Under the Wills Law of Lagos State, a testator lacks the testamentary freedom to disinherit any of his family members or dependants of the benefits of his estate as the case may be. This is a clear departure from of the Wills Act 1837 whereby a testator posses the testamentary freedom to disinherit anyone in accordance with his wishes. By virtue of Section 2 of the Wills Law of Lagos State, where a person dies and is survived by either a wife or wives or husband, child, children whom he did not make any provision for in his Will, such a person or those persons may apply to the court for an order on the ground that the disposition of the deceased estate affected by his Will is not such to make reasonable financial provision for the applicant (s). The application must be brought within six months of the date of probate. It is believed that this provision was imported from the inheritance (Family Provision) Act of the United Kingdom 1938. Where the testator fails to make reasonable financial provision for the maintenance of a dependant, the court may grant an order for payment to be made to that person for his or her maintenance [6]. It is however apt to note that what is reasonable financial provision is subject to the applicant's lifestyle. Again, the testator may pre-empt the foregoing situation by stating in a separate document the reasons for his failure to provide for such dependants in his Will. However, for such reasons to be capable of disentitling a family member or dependant it must be cogent and satisfying to desuade the courts who are usually prepared in granting such applications. While the philosophy behind the provision is understandable, which is essentially made to protect the disappointed dependants particularly in the spirit of African extended family system and communal lifestyle, it is important to note that it is a grave incursion to the testamentary freedom of testators to
decide on how they want their affairs to be arranged or regulated after they have died.
Curtailment of Testamentary Freedom by Moslem Law in the North
Moslem Law is regarded as customary law by virtue of section 2 of the Native Courts Law of the Former Northern Nigeria, which provides that "native law and custom includes Moslem Law". It is apt to note that the making of Wills is not totally strange to Moslem law unlike the position under the indigenous customary law where nuncupative Wills and intestacy holds sway. The Moslem law recognized the power of Moslems to make Wills. Originally, such voluntary dispositions were ordained specifically for and limited to charitable purpose, usually for the benefit of persons who were not entitled as of right to inherit upon intestacy [10]. A strict limit was therefore imposed upon the power of testamentary disposition. For instance, the permissible quantum of bequeaths is restricted to V of the net estate, of property. After the payment of the liabilities and funeral expenses of the testator, no one entitled to take under Islamic rules of inheritance may receive any bequest where the estate is finally distributed [10]. The point being made from above is that, the testamentary freedom in the making ofWills by Moslems in Nigeria is curtailed by Islamic law as no Moslem testator is qualified to give out more than V of the Estate under the Islamic rules of inheritance. Secondly, a natural heir cannot be a beneficiary under a Will except where the other natural heirs unanimously agreed to such devise. The leading case in this subject on whether or not a Moslem testator in one of the Northern States in Nigeria could make a Will pursuant to the Wills Act 1837 being a statute of general application, is found in the case of TimothyAdesubokun V RasakiYinusa [11].
Position in the Eastern Nigeria of Testamentary Freedom
However, it is observed that the curtailment of testamentary freedom encountered in the Western and Moslem North of Nigeria does not present itself in the Eastern part. This is because the Wills Act of 1837 is accepted as a statute of general application incorporated into the domestic law by the relevant High Court Laws of the different States that
make up the Eastern part of Nigeria. In other words, the Eastern States are taking the full benefits of the Wills Act of 1837 as it ought to be applied [1]. The full testamentary capacity is enforced while any testator of full capacity and of a sound mind has the freedom to dispose of his property according to his wishes pursuant to the provisions of the Wills Act notwithstanding the provisions of the customary law. He could by his Will disinherit his own first son or do whatever he wishes apart from matters that offend public policy.
Other Jurisdictions
Almost all the states in America allow individuals to disinherit their descendants for any reason or no reason at all. Testators are given free testamentary powers to exercise their wishes in the distribution of their bounty. The reason for this may not be far-fetched. America is one of the leading democracies in the world where the respect for human rights is highly recognized and practiced. It is partly believed in most states in America, that the exercise of unrestricted testamentary powers of testators maximizes the testator's happiness, gives incentives to work, save and invest on what is socially optimal [12]. It is the view that capital accumulation and long-term productivity is encouraged in line with benefits for familial relationship by increasing parental controls over children or encouraging children to care for their parents [12]. The highlighted points and others informed the major reasons why full testamentary powers are allowed in most of the developed western jurisdictions. In the foregoing jurisdictions, testamentary powers are not restricted based on customary law, religion or on grounds of meeting the demands of dependants as obtainable in Nigeria. Restriction could only be made where private documents such as Wills intersect with public policy [13].
Justification for Curtailment of Testamentary Freedom in Nigeria
Eminent scholars have argued that the Wills Act 1837 has ceded much control to the dead and must be inquired into [14]. Where the bequest is capricious or frivolous, it becomes justifiable for the law to interfere with the testator's testamentary powers. In the Nigerian social environment where the absence of social security services are perennial, and in
the face of abject poverty, and multifarious infirmities confronting the populace, it becomes apparently justifiable for the statute to interfere to ensure that those common values that affect the welfare and bonding of the society are maintained. So, in view of the Nigerians socio-economic realities where poverty, illiteracy and the extended family system are prevalent, as against the Western individualistic lifestyle, the justification for the curtailment of testamentary freedom becomes a sine qua non in order to meet the demands of the society. Besides, the extent to which the Wills Act should facilitate the wishes of the dead should essentially belong to the living.
Conclusion
The principle behind the making ofWills under the Wills Act of 1837 is to give full testamentary powers to persons to dispose of their properties in accordance with their wishes. With the amendment of section 3 of the Wills Law of Lagos State 2003 and other similar Wills Laws of the other States in the West, the provision of section 3 of the Wills Act of 1837 has been altered thereby curtailing the testamentary freedom of persons wishing to dispose of their properties in whatever way they wished. Person, in the affected States presently only dispose of, by Will, any property which he owns only subject to customary rule of inheritance. Where he disposes a property which is a subject of customary rule of inheritance, the disposition will be nullified on the ground that it violated the provisions of section 3 of the Wills Law of the affected State. Recommendations
The authors recommend that
1) In straight forward cases where the testator has a direct line son or daughter depending on the kinship system in vogue in that part of Nigeria, the will Act of1837 could apply.
2) In a situation where the customary law of the kinship system is inconsistent with the testamentary freedom in the making of the wills, the customary law should prevail thus making the testator's opinion irrelevant.
3) With due respect to the will of 1837, the culture of any of the 372 Ethnic Nationalities in Nigeria [14] recognises inheritance mainly by primogeniture and it should be so allowed in order to reduce schisms and outright family quarrel.
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5. 1951 13 WACH 243 (West African Court ofAppeal).
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8. Adesubokan V. Yunusa (1971) I All Nigeria Law Report 225.
9. Per Karibi Whyte in Idehen V Idehen 1991 Nigerian Weekly Law Report. (pt 198) 382 at P. 416.
10. Mosugu, S. E. 1972 Moslem Wills and the Courts in Nigeria. NJL Law.
11. 1971 NWI. R. 77 Nigerian Weekly Law Report.
12. Kelly, D. B. 2015 Restricting Testamentary Freedom: Exante Versus Export justifications at www.du-haime.org/law, visited 4th Dec.
13. In the estate of Funbeerg, 919 NE 20 (111 2009).
14. Fordham Law Review Vol.82 2013 P. 1182.
