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, 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
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.