WHAT IS A WILL?
A will is a testamentary document or instrument voluntarily made and executed according to law by a testator with testamentary capacity (i.e., a sound disposing mind) wherein he disposes of his properties to a beneficiary and gives further instructions to be carried out as he deems fit.
VALIDITY OF A WILL.
Flowing from the definition of a will which is said to be the voluntary disposition of a testator’s property before he dies, there are essential validities of a will which are necessary for a will to be valid. These are conditions that must be followed before a will can be said to be valid.
In the case of Ize-Iyamu .v. Alonge,[1] the court held that for a Will to be valid as to form –
1. It must be in writing;
2. It must be signed by the testator or his representative and dated;
3. The signature of the testator must be witnessed by at least two witnesses;
4. The witnesses must attest and subscribe to the Will in the presence of the testator; and
5. The signature of the testator shall be at the foot or end of the Will.
Section 9 of the Wills Act, and Section 4 of the Wills Law of Lagos State require that every Will shall be in writing; it therefore invalidates a nuncupative (oral) Will. However, under customary law, an oral will is valid. See the case of Bankole .v. Tapo (1961) 1 All NLR 140, where an oral disposition of land by a testator was upheld to be sufficient to transfer the property to the beneficiary.
The essence of the requirement of a Will to be in writing is to prevent fraud, thus for an oral Will to be valid under customary law, it must satisfy the following conditions –
1. It must be made voluntarily
2. The testator must be of a sound mind
3. It must name the beneficiary or beneficiaries
4. It must be in the presence of witnesses
5. It must identify the property[2]
However, it is no longer necessary for the signature to be the foot or end of the Will. It can be anywhere, as long as there is a signature and it is apparent from the face of the Will that the testator intended by his signature to give effect to the will.