The Concept of Contested Wills in Nigeria

CONTRIBUTED BY: LILIAN EKU

INTRODUCTION

Contested wills in Nigeria are a common occurrence that often leads to legal battles between family members and beneficiaries. Under the Nigerian legal system, the major issues usually contested in a will are; the validity of the will, the mental capacity of the testator (the person who wrote the will), the authenticity of the will, and the interpretation of the will. These issues often arise when the will is unclear or when there is disagreement among family members over the distribution of the estate.

This article will examine the position of the law as it relates to the validity of a will, the concept of contested Wills, and how they are resolved according to the laws.

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 –

It must be in writing;
It must be signed by the testator or his representative and dated;
The signature of the testator must be witnessed by at least two witnesses;
The witnesses must attest and subscribe to the Will in the presence of the testator; and
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 –

It must be made voluntarily
The testator must be of a sound mind
It must name the beneficiary or beneficiaries
It must be in the presence of witnesses
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.

WHAT IS A CONTESTED WILL?

A contested Will can be said to be a will that is being challenged. A will can be challenged either by questioning the form of the will or its substance. The form of the will is the valid structure of the Will, either in the written or oral form. Contesting the Form of the Will is therefore contesting either the fact that it wasn’t written properly, it wasn’t signed, there were no Witnesses present or it wasn’t made voluntary as the case may be. The Substance of a Will is the content of the Will, the division of the estate and if the Will provides for the necessary dependents, it ought to take care of.

Approximately one per cent of Wills undergo challenges in court. When a Will fails to meet specific legal requirements or if the testator lacked testamentary capacity at the time of its creation, interested parties, such as heirs or beneficiaries, have the option to contest the Will in probate court following the testator’s death.

A will may be contested in probate court through a procedure known as a “will contest”. A Will contest, or a “contested will”, is a formal legal action brought by an interested party that challenges the validity of a will. An “interested party” in this context refers to a party that has standing to contest the Will. Parties who have standing to contest a will are limited to:

Any beneficiaries named in the will; and
Persons who are not named in the will, but would normally inherit under a state’s intestate succession laws.^[3]

The premise of most contested wills is based on two key arguments: either that the terms of the will do not reflect the testator’s actual intentions or that the Will document itself is invalid. Regardless of which argument is being asserted, Will contests can be difficult to prove because strong supporting evidence is required.

Therefore, when an individual is confused about whether he has a standing or a valid reason to contest a will, consulting a qualified estate lawyer is advised before filing a claim.

Furthermore, if a petitioner is successful and the court grants the request for the removal of a defective or challenged Will, then this means that the executor will no longer be allowed to manage the estate or any estate-related matters, including defending against will contests.

WHAT ARE THE COMMON REASONS A WILL IS CONTESTED?

Will contest claims are very specific legal challenges. They are strictly limited to determining whether a will is valid (e.g., was it formed properly?) and whether the will reflects the actual intentions of the testator. Thus, just because someone is unhappy with the property or assets that were (or were not) bequeathed to them, does not mean they will have grounds to challenge a will.^[4]

Some common legal reasons that may support a proper will contest include:

If the testator lacked mental capacity at the time they created the will;
If an interested party coerced, manipulated, or pressured the testator to draft the will or to include them in the will;
If an individual with certain duties to the testator abused their confidential relationship (e.g., a lawyer, an accountant, a priest, etc.);
If the will was not signed by two witnesses or the witnesses were not present to watch when the testator signed the will;
If the will was never signed by the testator;
If the will was forged or fraud was involved in its creation; and/or
If there is a more recent copy of the will than the one being used for probate.^[5]

WHAT ARE THE STEPS TAKEN TO CHALLENGE A WILL?

CAVEATS.

A caveat ‘let him beware’ is generally a formal notice of warning given to a court or Judge or ministerial officer against the performance of certain acts within the powers and jurisdiction of the court, Judge or officer. It is a warning to suspend an action. Caveats are also variously called “Notice to Prohibit”. Order 63 rule (18) High Court of Lagos State Civil Procedure Rules 2019 (HCLSCPR 2019) provides that “a notice to prohibit a grant of administration may be filed in court.” Further, that “any person who wishes to ensure that no grant is sealed without notice to himself may enter a caveat in the registry.” Where the probate registrar is aware of an effective caveat, he shall not allow a grant to be sealed.”^[6] It is usually granted temporarily or provisionally against proving a Will or the grant of administration. A ‘caveator’ is one who files a caveat.

A caveat is not permanent but has a time limit. In Lagos State, it has a time limit of 3 months. A caveat is usually in a prescribed form; in the Federal Capital Territory, Form 152 is required and in Lagos State, it may be made in Form 3 or Form 4 (where it is a Legal Practitioner).

Warnings/ Citations: this is a process filed by the applicant for probate stating his interest and if he claims under a Will, the date of the Will. The process makes a demand on the caveator by the applicant (the person warning) requiring the caveator to disclose any interest (by entering an appearance) which he has in the estate of the deceased person which is contrary to that of the person warning. The caveator is expected to enter an appearance by disclosing his interest within Eight (8) days^[7] of the service of the warning on him.” The caveator may not have any contrary interest but may only be against the sealing of the grant in which case, he should serve a summons for direction on the registrar^[8]. If no contrary interest is disclosed or no summons is served by the caveator within 8days of the warning, the court may proceed to issue a grant of probate in the estate notwithstanding the caveat.

Appearance:

Where the respondent wishes to respond to the warning, he is required to file an appearance to the citation or warning. In the appearance, the caveator will disclose the nature of his interest in the estate and why he desires that the applicant should not be granted probate. A specimen of the appearance is set out below. Where a probate action is commenced (whether or not any caveat is entered), the action operates to prevent the sealing of a grant until the application for a grant is made by the person shown to be entitled by the decision of the court in such action.

Probate Action:

Where the caveator enters an appearance to the warning and discloses a contrary interest, probate will not be granted but the matter would be heard in court for the grant of probate in solemn form. The procedure for obtaining probate or grant in solemn form is largely dealt with in the various High Court Civil Procedure Rules of the States and of the Federal Capital Territory. Indeed, “Proceedings in respect of the Administration of Estates is governed by the High Court Law and Rules of Procedure made thereunder. The action could be commenced by writ of summons particularly where there are substantial allegations of facts (such as an allegation of undue influence or forgery of the signature of the testator) or any reasons why the person should not be granted administration of the estate of the deceased person, which requires the evidence of witnesses to be proffered. Order 60, rule 1 of the Lagos Civil Rules provides that suits in respect of Probate or Letters of Administration shall be instituted and carried on as nearly as possible in like manner and subject to the same rules of procedure as suit in respect of civil claims. Where the court at the end of the case pronounces in favour of the Will, probate will be granted in favour of the Will. Where the court however does not pronounce in favour of the Will, no such probate will be granted.^[9]

CONCLUSION.

Contested wills are becoming increasingly common in Nigeria, and it is important for individuals to take the necessary steps to ensure that their wills are properly drafted and executed. This includes seeking legal advice and guidance from qualified professionals to avoid disputes and ensure that their wishes are carried out as intended. By taking these steps, individuals can help to protect their assets and ensure that their loved ones are provided for after their passing.