It is trite learning that while success gives clues and exposes/yields itself to revelation, death corrodes the memory of the wise, deletes its prey unannounced and converts same into the domain of forgetfulness.
Death has no respect for preparation and so comes like a thunder from the blues to take whosoever is the next on its agenda not minding whose horse is gored. Be that as it may, the need to organize one’s life is key, to be on a firm terrain (Terra fir ma) before Mr Death converts the nobility of the noble into the mother hearth.
In other words, while one is making preference for long life in the rite of passage, one should not be totally oblivious of the day of death, whichever one comes earlier.  In the knowledge of the foregoing, it is apposite to mention here that solid arrangements and adequate plans must be made for the spouse, children of the marriage and in extension, all dependants (far or near) or whosoever may care to benefit/suffer a bit from the sudden loss.  It then goes without saying that the unhealthy rivalry standing between the Fear of death and the making of a will ought to be resolved one way or the other so as to enjoy the melody of REQUEM/REQUISCAT(MAY HIS/HER SOUL REST IN PERFECT PEACE) albeit in the grave.

The most fundamental characteristic of a Will is that “it speaks from death”. This is usually expressed by stating that a will is ambulatory in nature. Meaning, revocable for the time being, a provision whose operation is suspended until the happening of some event upon which the provision becomes operative and binding. Thus a Will is ambulatory until the testator dies-Okesola v Boyle{1998} 2 NWLR(Pt.539) p.533. This ambulatory nature of a will signifies several things:
It cannot confer benefits taking effect before the testator’s death;

Property acquired after the date of the will, both real and personal may be disposed of under its terms.

A good Will must be in writing and contain both Signature of testator and those of his witnesses who must be present together to witness the testator’s signature.
What is a Will?
Scholars have not arrived at a general definition of a Will but a working meaning can be given to it without doing any harm.  Be that as it may, a Will is a testamentary document voluntarily made and executed according to law by a Testator with sound disposing mind where he disposes of his estate according to the Wills law and gives other directives as he may deem fit.  Besides, the phrases emphasized are very important e.g.  A document is not a Will unless it takes effects ambulatory, that is, unless it speaks from death; it is not valid except it is executed as provided by s.9 Wills Act 1837, section 4 Wills Law Lagos State cap. W2 laws of Lagos State 2004; it must be voluntary, otherwise it could be void for undue influence of someone exerted on the natural inclinations of the Testator.  The Testator must possess corpus mentis otherwise a Will made by a Testator without sound disposing mind shall be void and of no effect.

Many people are reluctant to make a will because will is always conceived as a “remembrancer of death”. However, there are ample reasons it is desirable to make a will to avoid customary laws of inheritance and to avoid intestacy.

A will displaces or excludes the applicattion of the rules of customary law on intestacy of a deceased. It excludes the rules of inheritance under the native laws and customs. A Will excludes the rules of inheritance under Native law and Custom. Subject to the ratio in Idehen vs. Idehen; Lawal Osula vs. Lawal Osula (1983) 2 NWLR 158.
The testator has a satisfaction of having ordered his affairs before his death. This presupposes that his property will devolve the way he wants it to devolve. The testator can choose people he wants as his personal representatives.
A will displaces the application of the rules of statutory devolution as contained in the administration of estate laws in various states see celebrated case of Cole v. Cole. It excludes statutory rules of inheritances.  Anyone covered by section 39 (1) Marriage Act comes under the umbrella of received English law on intestacy or similar statutory law in operation in Nigeria;

The testator has the satisfaction of benefiting those he loves in his lifetime or owe a duty of care. In other words, Will enables a testator to choose people he wants to be his personal representatives thus avoiding antagonistic interest in the administration of his estate after his death. It can halt the possibility of a testator’s estate being marked and or cited for a bona vacantia- a no man’s property which the government can take over with impunity.

 Where he has infant children, the testator is able to appoint for them a guardian ad litem and he could in similar manner give directions as to the disposal of his remaining properties. The Testator may by his Will appoint guardian ad litem for his infant children and he could in similar manner give direction as to the disposal of his remains without leaving any room for slight obfuscation.

Executors of a will take power of execution which arises immediately upon death. It is not contingent on the will being proved as in the case of issuance of letters of administration on intestacy. An executor has authority to act from death and even before the issue of probate; he could do certain things on behalf of the estate. An administrator on the other hand may not act until the grant of the letter of administration.

It gives the testator the opportunity of making specialty gifts e.g. Organ donation.

The testator is given the opportunity of giving general directive. Such a document should be kept separate in a place or with a person that will make it easily accessible when it is needed.

Upon the death of the last of the executors of the will, his own executors will continue with the job of winding down of the estate of the testator; whereas upon the death of the last administrator, fresh grant has to be taken out under the administration of an intestate property. By transmission, the executors of the last surviving executor, completes the winding up of the estate of the testator. An executor has authority to act as from death and even before issuance of probate, he could do certain things on behalf of the estate.  An administrator on the other hand, can only act on behalf of the estate on the issuance of letters of administration.

A will avoids the huge and additional expenses of a bond and sureties which are encountered in the grant of the letter of administration, the grant of probate of the will does not require it.   A grant of administration involves the additional expenses of a bond and sureties and these can be avoided on grant of probate.

Nuncupative will;- this is the most common type of will at customary law. It is usually made on the testator’s death bed.

The formal will;- this type must conform with the rules as laid down in the Wills Act. It must be in writing but not a deed-no special form of writing. It must be signed by the testator.
Donatio Mortis Causa;- this mode of conferring benefits has been rightly described as having an ‘amphibious nature’. This is because it is neither entirely inter-vivos nor entirely testamentary. It is a gift made inter-vivos which is conditional upon, and which takes effect upon death.

Besides, a cursory look at the truly successful and exposed children of God will enhance the thinking faculties of an average person.  How do they think? What’s their mind-set? What’s their behaviour like? Do they have patterns of thought or behaviour which make them successful and exposed that can be modelled? Successful Christians listen and follow principles without need to advertise or accentuate blatant ignorance of law which excuses no one. Little wonder several years after their demise, their family still remains intact, united devoid of avoidable disquiet.  Where proper planning is required, anointing cannot be the substitute.  Assuming without conceding that death is the eventual resort of making a will, it is worth the while, Ezekiah was warned to prepare for his house for he will surely die.  Invariably, he was going to die surely but he should not die as a Lone Ranger or pitiable ignoramus.
Intestacy is the bedrock of widowhood impairment and subversion of the course of justice. Immediately a spouse dies intestate especially a male, the first thing the extended family will do is to accuse the female spouse for the alleged death of her husband thereby subjecting her to labour continually in her innocence. Before the expiration of her widowhood, all the property would have been carted away or converted with dare devil asportation wrapped with animus furandi.

When the estate of a deceased person is at risk of dissipation and wastage, etc as a result of disputes between executors or between executors and beneficiaries, the court is empowered to appoint an administrator pendente lite, to manage the estate pending the determination of the dispute in a court of law.  Such an appointee does not need to apply for letters of administration, since the courts will take judicial notice of the appointment.  See Kunle ladejobi & others v. ODUTOLA holdings Ltd & others. (2002) 1 WRN94@106-7.
An executor de son tort is one who being neither an executor nor an administrator inter meddles with the estate of the deceased, real or personal.  Such a person renders himself liable to be sued by a creditor or legatee of the deceased.  He has all the liabilities, though non of the privileges of an executor.

Possible Solution to the problem of intestacy
Spouses are advised to operate joint accounts and where not possible be acquainted with each other’s ATM pin number and pin codes.
Incorporation of joint family company and transfer all the properties into the company wherein the husband and wife and their children are directors. This will effectuate unity in progress and enhance security of family property.
In conclusion therefore, the fear of God is the beginning of wisdom. Invariably, professor Roberto Unger once said, Law is the glue that holds the society together. Drawing sense from the foregoing, I recommend that the combined effect of grace and law will go a long way to extirpate ignorance in our society and so people of God will no longer die/perish without knowledge.  
Above all, it is particularly good for your peace of mind to know how you can and should arrange your affairs before death. It will come sooner or later but the fact that a Will is a remembrance of death is no excuse for not learning about Wills, nor for omission to make one.

Share To:

Afolabi Folorunsho

Post A Comment:

0 comments so far,add yours

What do you think?