In this modern day society, the importance of writing a will can’t be over-emphasised. If you haven’t read this piece on why you should write one, please do so now!
Here are more facts about writing a will that you can’t afford not to know:
Requirement of Legal Age
1. The testator must be of age as approved by the relevant laws. Various laws prescribe the age for which a person can make a will.
2. Under the Will’s Act, the legal age by which a person can make a will is 21 years.
– Lagos State: the legal age is 18 years.
– Kaduna State: the legal age is 18 years.
– Abia State: the legal age is 15 years.
– Oyo State: the legal age is 18 years.
However, there are exceptions to the requirement of age and this applies to seamen, soldiers and mariners. The will executed in such cases must however express the testamentary intention of the maker even though he is under-aged.
Requirements of a Valid Will
1. It must be in writing. It can be written by the testator himself but it is advisable to involve a lawyer.
2. It must be signed by the testator.
3. The signature of the testator must be acknowledged by him in the presence of at least two witnesses.
Application for grant of probate and letters of administration
Probate is the authority that validates the powers and functions of an executor, although the authority of the executor to act derives first from the will. The validity of an executor to continue to act depends on the confirmation of his powers by the grant of a probate. Indeed, an executor may not be able to perform certain acts except there is grant of probate. An administrator however derives his powers to act from the grant letters of administration and where none is granted, he cannot act. The grant by the court of letter of administration is the authority by which anyone claiming to be an administrator would derive his authority.
Thus while a probate confirms the representation of an executor, a letter of administration confers the representation of an administrator. An executor of a will can deal with the estate even before the grant of probate pending its subsequent ratification; but an administrator cannot generally deal with the estate before a grant of letter of administration except if his actions are for the benefit and interest of the estate, in which case and based on the doctrine of ‘relation back’ his act will be related back to the date of death of the deceased to validate the steps taken by the administrator.
Where a will is not proved, the presumption is that the deceased died intestate and all his properties would by operation of the native law and custom which is practiced in the area devolve on those entitled on his intestacy. Until the grant of letter of administration, his real and personal estate is vested in the court for the purposes of realization, preservation and prevention of waste in the estate. In such a case, administration is usually sought for and obtained to manage his properties. But even before administration is granted, the court has the power when circumstances require, on the death of a person, to immediately appoint and authorize an officer of the court or some other fit person to take possession of the property of the deceased within its jurisdiction, or to put it under seal and keep it until it can be dealt with according to law.
About the Writer: Evans Ufeli is a lawyer and author of aclaimed novel ‘Without Face. He is also an alumni member of Writers’ Bureau Manchester, a highly sought-after speaker with a passion for the concept of change. He lives in Victoria Island, Lagos. You can contact him via Facebook: Evans Ufeli, Email: evanylaw@yahoo.com, Phone: 08037712353, Twitter: @EvansUfeli. He blogs at www.ethicsafrica4u.wordpress.com
