WILL; BENEFICIARIES & WITNESSES

A colleague of mine told me how a client of his who he helped draft his WILL came to his office with the beneficiary,
his intention was for this beneficiary to attest to the will............Guess you still don’t see anything wrong in what the man did, I am not surprised most people won’t because they do not have the knowledge.

We have discussed WILL earlier, so I feel you should read up, so we’ll go straight to witnesses in a WILL, its importance, who a witness can be, and what vitiates a will.

A will in simple language means the intentions and wishes of a person to be carried out after his death.

A witness who benefits under a WILL, loses any property or benefits this includes the spouse of a witness to a WILL, a spouse who at the time of attesting the WILL and not one who marries a witness after attesting the WILL.By virtue of Section 8 of WILLS Law of Lagos State give instances where a beneficiary will lose the gift in the will as follows;

i.                     Where a person attests to a Will such person shall not benefit, the gift in the will shall be utterly null and void.

ii.                   The disqualification of gifts to beneficiary witness extends to his/her spouse, that is, the spouse of a witness to a will cannot take any benefit under the WILL

iii.                  A benefitting witness is only disqualified from taking the gift made under the WILL, but is a competent witness to testify on the facts of due execution of the WILL.

iv.                 Where the WILL is still duly executed if the signature of the benefitting witness is disregarded, the benefitting witness can still benefit from the gift made in the Will.

For every general rule in law there’s always an exception, so the exception, instances where a witness will benefit from a WILL.

I.                    There are some WILLS that does not require witnesses i.e. A will of a soldier in active service, an example of one is a soldier in war front who decided to share his estates before his last breath by telling the next available person how it should be shared.

II.                  Where the beneficiary marries a witness after executing a WILL i.e. a secretary in the law firm where the testator made the will who married one of the beneficiaries of the WILL, please bear in mind that everybody except an infant can make a WILL

III.                Where the gift in the WILL is confirmed by another WILL or codicil which is not attested to by the beneficiary

IV.                Where the person present merely signs that he agrees with the content of the will and not as a witness.

V.                  Where gifts are given to persons in their capacity as trustees and not as beneficiaries.

A proof of due execution of will , it is important to strictly comply with the formalities of executing a WILL .The requirements for execution is that a WILL must be signed by the testator in the presence of witnesses. Where a WILL appears on its face to be regular, the court will presume that it is duly executed .In IZE-IYAMU V. ALONGE(1856)164 ER 489 where it was noted that once a WILL has the name of the testator, it is properly witnessed by two witnesses and signed and dated by the testator, the presumption of regularity would be ascribed to the document, more so if the WILL was deposited in the probate registry and is admitted as the only WILL of the testator.

Thank you.

OYENIKE ALLIYU-ADEBIYI LLB(hons) BL