Berkeley Legal | Estate Planning: Wills
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14 Aug Estate Planning: Wills

 

Introduction

Estate Planning is the process of making arrangements on how the assets of a person would be managed in the event of incapacity or demise. A Will is one of the major tools used in an estate planning exercise and this will be discussed below.  The essence of estate planning and making of wills is; the protection of family, friends, business partners and the ability of an individual to fulfil his/her wishes and intentions even after his/her demise.

The recent happenings involving the Covid-19 pandemic and the challenges families and business partners have grappled with after the loss of a love one without a Will, highlights the importance of making a Will.

What is a Will?

A will is simply a document stating the intentions of a testator (the deceased) on how his/her estate should be administered or managed in the event of his/her demise. A testator (also through the Will) usually appoints an individual or company (called executor) to execute the Will.

Requirements for a valid Will

  • It must be in writing. It can be in any language and does not necessarily need to be in English.
  • The person making the Will must be of legal age. The Wills Act states 21 years as the legal age, but the Wills Laws of most states in Nigeria provide for 18 years.
  • The Will must be signed by the testator or any person directed by him/her and in his/her presence.
  • The signature of the testator must be made or acknowledged in the presence of two witnesses, who must be present at the same time. A witness should not be a beneficiary under the will, because they will lose any benefit given under a Will they witness to.
  • The person making the will must have the requisite capacity to make the will. The testator must have the mental capacity to understand the nature of what a will is and that he his disposing off his property.

Content of a Will

Some important information or content which can be included in a will are:

  • Personal information of the testator, include name, address, occupation etc
  • Personal information of the beneficiaries, includes name and address
  • Detailed information on assets to be disposed of under the will
  • Appointment of executor of the will, and trustees where it is required.
  • Appointment of a Guardian for beneficiaries who are minors.
  • Making arrangements as to burial of the testator etc.

Benefits of making a Will

A will which is properly drafted provides the appropriate protection to beneficiaries and gives the testator ease of mind in the conduct of his/her affairs after his/her demise. Some benefits include:

  • Ensure that wishes are followed: If a person dies without a Will, his estate will be administered according to intestacy law (customary). Given that some customary rules are archaic, a person’s estate might be administered in an entirely different way from what they envisaged.
  • Prevent Litigation: Preparing a Will helps to prevent dispute that might arise between family members on how an individual’s property should be administered after his/her death.
  • Appointment of executors/trustees: A Will enables a testator appoint competent people who can ensure that the estate property is not wasted but properly managed. This is especially important in situations where the testator has a large portfolio of investments.
  • Reduction in Administration of Estate after Demise: If an individual dies without a Will the family will have to apply for letter of administration before they can properly administer the estate. This can sometimes be un-usually cumbersome. When there is a Will, the executor goes right into executing the will.
  • Appointment of Guardians and Other Arrangements: A Will enables a testator make proper arrangements for beneficiaries who are minors, by for instance by appointing of guardians, setting up a trust of asset which they can’t have access to until maturity etc.
  • All assets of Testator are bequeathed: In preparing a Will, a Testator is able to include all his/her assets unlike in an application for Letters of Administration where it is only assets that the Administrators are aware of that will be attached.

Restrictions

There are certain restrictions in law on what a testator can dispose of by a Will, the restriction could be statutory, customary or religious (for instance, Islamic law places certain restrictions on what a testator who is a member of the faith can dispose of his/her property by Will). It is therefore, advisable to seek the advice of a lawyer or Wills practitioner when making a will, especially in estates with high value assets.

Conclusion

The importance of having a Will cannot be overstated, and as shown above there are many benefits to preparing a Will. It is therefore not only imperative to make a will, it is also important to note that it should be regularly updated to accommodate new assets and intentions of the testator.

Berkeley Legal can help you in your Estate planning exercise, by providing you timely and relevant advice on your estate planning issues.

 

The information provided in this article is for general informational purposes only and does not constitute legal advice. If you require specific legal advice on any of the matters covered in this article please contact info@berkeleylegal.com.ng