Estate Planning: Understanding Wills & Trust Law In Nigeria

• Published date: 03 April 2024
• Law Firm: Duale Ovia & Alex-Adedipe
• Author: Mr Adeleke Alex-Adedipe, Simisolu Soyombo and Chinedu Prince Erigo

Introduction

In the journey of life, mortality remains a constant, emphasizing the necessity of estate planning as individuals accumulate assets. Estate planning extends beyond mere property transfer, encompassing the assurance of loved ones' futures and the preservation of wealth's enduring purpose. This article delves into the significance of estate planning, exploring the foundational pillars of Wills and Trusts that shape legacies in Nigeria.

Wills

A Will is a testamentary disposition of a person (the "Testator") which takes effect upon the death of the Testator. It is an instrument by which a Testator can absolutely and freely dispose of all of his property - owned before or acquired after the date of the Will - in any manner, and to named persons (the "Beneficiaries"), subject to certain qualifications imposed by law. These qualifications include the responsibility of a Testator to make reasonable financial provisions for his or her dependents (spouses and children)¹, customary law on the disposition of property that governs the testator,² and Islamic law. A Will can also be used to issue posthumous instructions such as where and how the Testator should be buried.

A Will must be freely declared, and can be amended or withdrawn at any point during the Testator's lifetime. However, to ensure its validity and voluntariness, it must be signed by the Testator and the signing by the Testator must be witnessed by at least two persons. Usually, a Will is lodged at the probate registry of the High Court of a State in which the Testator resides. In most states in Nigeria, the person in possession of a Will must lodge same at the Probate Registry between 2 (two) weeks to 3 (three) months from the Testator's death. Although a Will is not invalidated where it is not lodged, any person who fails to lodge a Will within the required timeframe is liable to pay a fine to the Court. He may also be summoned by the Court and cited for contempt.

Executors of A Will

Executors are persons tasked with managing and distributing the wealth of a deceased person. They could be appointed expressly or impliedly in a Will or through a nominee charged with appointing the executors of the Will. Where a Will does not name an executor, a competent court in Nigeria can appoint the executor of a testator's estate. The law also recognizes certain persons, who, though not expressly appointed as executors, take concrete steps to manage the estate of a deceased (executors de son tort)...