Make a Will: Not a Death Wish! (Pt.2)📚🎲📚

Good Morning Nigeria,

Last week on the family-law-series, we discussed the feature tagged: Make a Will: Not a death wish! It was an engaging session as our inbox was loaded with questions, which we tried to answer within the confines of law. This week, we have decided to share some of those questions with you while modifying them for illustration sake.👏

Problem 1: Mr. Social Media married Miss. Instagram at the Ikoyi Marriage Registry on the 27th day of January, 1986. The marriage was dissolved by the High Court of Lagos State sitting at Ikeja Judicial Division on the 2nd day of April, 2012. Custody of the 3 children of the marriage was given to Miss. Instagram.  Prior to the dissolution of the marriage, Mr. Social Media had made a Will on the 21st day of August, 2002, wherein his 5 properties were devised and/or given to Miss. Instagram and her 3 children.

In 2013, Mr. Social Media married Miss. Twitter at the Ikeja Marriage Registry and they had 2 children. Mr. Social Media died on the 5th day of May, 2018. At the time of his death, he had only 1 (one) Will which was made during the subsistence of his first marriage to Miss. Instagram whom he had divorced.

Please note, that he had devised all his 5 properties to Miss. Instagram and her children. Now, what happens to Miss. Twitter and her 2 (two) children?🤔🤔

Solution: Law is proactive and as much as possible all likely scenarios have been envisaged by the law makers. The position of the law, is that, a Will becomes automatically revoked, cancelled and/or deleted by a second statutory marriage. Simply said, the Will made on 21st day of August, 2002 by Mr. Social Media while he was married to Miss. Instagram is deemed to have been revoked by his second marriage. I didn’t say it. It’s the position of the law!

The implication of the Will being deemed revoked is that, at the time of Mr. Social Media’s death, he had no Will; hence he died intestate, in which case the rule of intestacy succession will apply. Terms, such as ‘Idi-Igi’, ‘Idi-Ogbe’, ‘Ori-Ojuori’ etc., will become applicable. These terms will form a separate, discourse on the family-law-series. Stay with us!🙏🙏


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Problem 2: Mr. Big Belly, a Polygamist, who was once admitted in the Psychiatric unit of the State Hospital as a patient made a Will few years after his discharge from the said Psychiatric unit. He devised all his 7 properties in choice areas of Abuja to his second wife Mrs. Flat Belly while the 3 properties in Osogbo were devised to the first wife Mrs. Pot Belly. After his death his first wife Mrs. Pot Belly is challenging the Will and one of her grounds, is that her husband was not of sound mind at the time the Will was made. She cited his admission as a patient in the Psychiatric unit of the State Hospital as an example.

Solution: Generally speaking, the fact that Mr. Big Belly was insane and/or of unsound mind at a point in time in his life does not preclude him from making a Will, as long as the Will was made during his lucid interval or lucid moment. A Will made at a lucid moment is deemed valid.
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Problem 3: Mr. Theophilus a Christian got married under Native Law and Custom i.e. traditional marriage, he made a Will prepared by Mr. “I am not a lawyer” wherein he devised all his properties in choice area of Lagos State, bonds, pension fund and money in the bank to his loving wife of 50 years, Ruth, while he directed that a specific amount be paid to his siblings and aged parents monthly.

 Here is the juice, his loving wife Ruth also witnessed the Will (i.e. signed as a witness).😎😎

After Mr. Theophilus’ death, his brother Mr. Titus is challenging the Will. In his opinion, his brother Mr. Theophilus could not have intended for Ruth to have all his properties.

Answer: A Will remains valid in law, even if all the deceased’s properties were devised to 1 (one) person or a non-relative. A person could even nominate a charity and direct that all the proceeds of the Estate be given to that nominated charity. The Will remains valid in the eyes of the law. However, in the question asked above, the law forbids a person who is a beneficiary of a Will (i.e. a person whom properties have been devised to) from witnessing that Will. What this means in simple English, is that Ruth ought not to have witnessed the Will of Mr. Theophilus since she is a beneficiary of the Will.

So, what happens to the Will? What happens to the gifts made to Ruth?? Am sure these are the questions on your mind.

Strictly speaking, the Will remains valid with respect to other directives such as payment of monthly income to named persons, with the exception of the properties devised to Ruth. Ruth’s gift will fail.

The legal effect of the failure of Ruth’s gift is that the gifts/properties revert to the Estate and will be shared and/or distributed in accordance with the rule of intestacy.
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Question 4: Mr. Youngy, armed with the knowledge that his father devised the Toyota Camry Car and 4 gold jewelries in his Will to him, has made plans to sell them in other to finance his music project. Mr. Youngy’s father is still alive; Mr. Youngy’s mother sees her son’s plan as a good one and is giving him all the necessary support to dispose the properties. Mr. due diligence is the potential buyer and he has refused to pay the purchase price unless Mr.Youngy’s father consents to it. On the other hand, Mr. Youngy does not see the need for his father’s consent, in his opinion, the properties are his, already!

Answer: A Will is ambulatory in nature. This means that it takes effect after the death of the maker. And the properties devised in the Will do not become that of the beneficiaries until, after the death of the maker of the Will. For all purpose and intent, the Toyota Camry and gold jewelries remain the property of Mr. Youngy’s father and Mr.Youngy does not have the legal capacity to sell them in his father’s lifetime.

Thank you.

Oluwatosin Ajose Popoola Esq.,

https://www.linkedin.com/in/oluwatosin-ajose-24143910a

For: The Online Law Clinic

For Consultations and/or enquiries, please reach out to the Online Law Clinic Team on 08090956207 or onlinelawclinicteam@gmail.com.

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