MY INTELLECTUAL BANQUET!: August 2011

WILLS – THE POWERS OF EXECUTORS UNDER THE WILLS ACT – A LEGAL CRITIQUE

MEANING:

The Black's Law Dictionary defines Will as "An instrument by which a person makes a disposition of his real and personal property; to take effect after his death, and which by its own nature and revocable during his lifetime .... "

It is also "The legal expression or declaration of a person's mind or wishes as to the disposition of his property, to be performed or take effect after his death. A revocable instrument by which a person makes disposition of his property to take effect after his death. A written instrument executed with the formalities required by statutes, whereby a person makes a disposition of his property (real and personal) to take effect after his death".

On the other hand, "Codicil" is defined by the same Dictionary as: A supplement or an addition to a will, it may explain, modify, add to, subtract from, qualify, alter, restrain or revoke provisions in existing will

A will summarily then is a document made by a person called the testator wherein he confers benefits on another person called the beneficiary. A will is a document by which a person transfers benefits or assets to another person. A will is an instrument that provides security or welfare for the family of the maker. A will is the sum total of what a person wishes to happen to those he lives behind on his death.

One striking thing to note about the Will is that until the maker dies, he reserves the right to alter or revoke it. That is why it is called ambulatory. Importantly too, the will takes effect only upon the death of the maker.

TYPES OF WILLS

It might be of interest for us know that there various types of will. The following are some of those varieties, namely:

1. Holographic Will. One that is entirely written; dated and signed by the hand of the testator himself"

2. Joint Will. One executed jointly by two persons with reciprocal provisions which show on its face that the devices are made one in consideration of the other. Joint will is one in which the same instruments is executed by two persons as their respective will. It is a testamentary instrument executed by two or more persons in pursuance of a common intention, for the purpose of disposing of their several interests in property owned by them in common, or of their separate property treated as a common fund, to a third person or persons."

3. Mutual (or reciprocal) Will. One in which two or more persons make mutual or reciprocal provisions in favour of each other. Mutual Wills" are the separate wills of two persons which are reciprocal which are reciprocal in their provisions, and such a will may be both joint and mutual. Sometimes, it is called a "reciprocal", "double", or "counter" will."

4. Nuncupative Will. An oral will declared or dictated by the testator in his last moment before a sufficient number of witnesses; and after words reduced to writing. A will made by the verbal declaration of the testator, and usually dependent merely on oral testimony for proof. Such wills are invalid in certain states, and in others are valid only under certain circumstances."

It is important to mention that a will unless it is made in contemplation of a particular marriage is revoked by the marriage or remarriage of the testator or

LEGAL TERMS USED IN WILLS:

· Testator: This usually applies to a man who makes or has made a testament or will, or one who dies leaving a will.

· Testatrix: A woman who makes a will; a woman who died leaving a will; a female testator in short.

· Executor: A man appointed by the testator to carry out the directions and requests in his will, and to dispose of the property according to his testament provisions after his death.

· Executrix: A woman appointed by the testator to administer his Estate upon his death. A female Executor.

· Beneficiary: One who derives benefits under a will. In him resides the equitable interests in devised property. He can also be called the Legatee.

· Trustee: One in whom an estate, interest, or power is vested under an express or implied agreement to administer or exercise it for the benefits or to the use of another. One who holds the legal title to property "in trust" for the benefit of another person called the beneficiary and who must carry out specific duties with regard to the property.

· Estate: The total of assets and liabilities of the testator including all manners of property, real and personal, choate or inchoate, corporeal or incorporeal.

· Legacy: Is a gift by will of personal property.

· Legal representative: A person who overseas the legal affairs of another. It is always held to be synonymous with "personal representative". It includes the executor or administrator of an estate and a court appointed guardian of a minor or an incompetent person.

· Administrator (trix): A person appointed by the court to administer/manage or take charge of the assets and liabilities of a deceased person. Such a person may be a male (in which case he is called administrator) or a female (administratix)'".

ADMINISTRATION OF WILLS

The Administration of a Will is the oversight role played by the Executor or Trustee of a Will. It deals with the management and superintendent function of the Executor regarding a Will. It is all about taking the necessary practical steps in not only proving a Will but ensuring that the Executor carries out the wishes and directions of the testator in the Will. It deals with the management of the estate of a deceased person in accordance with the written directions in a Will,and in compliance with available legislation. Plainly, Administration of a Will is all about the determined counsel of the Executor to safeguard and realize the intentions of the testator having regard to who gets what from the estate and rendering appropriate account. Without administration, a Will remains impotent and incapable of being translated into reality. It remains a dead testament. Thus, administration is the necessary push required to give the fullest effect to a will and thereby put smiles on favoured faces. On the faces of surviving beneficiaries thereunder. Now, let us examine the modus operandi of Administration of a will.

APPLICATION FOR GRANT OF PROBATE

As indicated herein before, the various High Court Rules makes adequate and similar provisions governing probate and Administration. We will take the liberty to use the Kaduna State High Court (Civil Procedure) Rules, 1987 as a model in discussing this subject. Order 187 49, Rule 1 of the said Rules requires of any person in possession of any paper or writing of any deceased person purporting to be testamentary to within fourteen (14) days of having knowledge of the death of that person deliver original of same to the Probable Registrar of the Court. Failure to comply attracts a penalty of W100 fine. Under Rule 2 of the said order, the Court is vested with the power to order any person to produce before it any testamentary document whether or not a suit is pending on the probate or Administration. Likewise, the Court can examine any person in custody of such document" and/or call on the Executor on its own to come and prove a will."

The application for grant of probate upon the death of the testator is expected to be made by petition to the probate Registrar of the High Court. Usually, the Chief Registrar who doubles as the probate Registrar with office at each state capital where the Headquarters of the Court is located. If such application is made through a legal practitioner, the office address of the lawyer within its jurisdiction shall be supplied." A personal applicant shall produce a certificate of death of the deceased or such other evidence of death required of him by the probate Registrar. In addition, the personal applicant shall supply all necessary information required of him so as to facilitate the grant. Every application for grant of probate shall be supported by an Affidavit duly sworn to by the Applicant and supported by necessary Exhibits as the probate Registrar may require, specifically, such Affidavit shall state where the deceased died domiciled. Upon the receipt of the application, the probate Registrar may require any other useful information and commence the processing of the application by inspecting the will and verifying its due execution. No grant of probate or of administration with the Will shall issue within seven days of the death of the deceased testator": Improper execution affects grants of probate as the court reserves the right to decline.

THE POWERS OF EXECUTORS OF A WILL:

An "executor" is a personal representative who is responsible for distributing the estate (property, assets, and possessions) of an individual according to the wishes outlined in their Will. The executor has specific powers designated by law and given exclusively to the executor in the Last Will and Testament through which they received that office. The executor being in a fiduciary relationship owes certain duties and responsibilities to the creator (testator/ settlor) of the will or trust. While acting as executor, personal representative or trustee these administrators are subject to various laws, regulations, standards and guidelines including (but not limited to):

They include among others:

· The first obligation of the executor is to locate and read the original of the most recent Will of the deceased. Hopefully, the "testator" (the individual who wrote the Will) has previously informed the executor or their family where their Will and other important papers are kept. If not, then the executor must search all likely places for a valid Will. If the Will is kept in a safety deposit box, then the executor will have to take a key, the Death Certificate and personal identification in order to access the box. The box can be forced open if they do not have a key. The bank will then draw up an inventory of the contents, and the Will will be released if the executor can demonstrate that they are indeed the person with executor responsibilities for the Will.

· The executor should apply for the Death Certificate of the testator, which can usually be obtained from the hospital. This usually takes one to two weeks to receive.

· The executor has the right to determine how to dispose of the deceased's body. Any funeral wishes expressed by the deceased are not legally binding, although in practical terms personal wishes are usually respected. If the deceased has taken time to express their personal wishes through a funeral home service, it will save the family and the executor a great deal of anxiety and grief.

· The executor must notify everybody who has an interest in the estate and what, if any, is their entitlement described in the Will. If the Will or the authority of the executor is challenged, then the executor may have to provide documentary evidence that they have complied with any legal requirements.

· A list of assets and liabilities must be drawn up, including their value at the date of death.

· The executor must secure all assets, either by taking them into his or her possession, or by taking out a full insurance policy.

· All prospective creditors must be given an opportunity to stake a claim on the estate. The executor must advertise for anybody who may have a claim against the estate. Creditors with a valid claim can recover their debt at any time, even after the estate has been distributed to the beneficiaries.

· The next step is to apply to probate the Will, so that the assets can be dealt with legally. This may require legal assistance.

· The executor is responsible for filing taxes on behalf of the deceased, including income taxes and death taxes.

· Once the executor has obtained legal authority to distribute the estate, they must pay all outstanding debts and expenses, including funeral expenses and all taxes.

· Once all debts have been paid, the estate can be distributed to the beneficiaries starting with specific bequests to individuals. If the Will provides for the setting up of Trusts, then the executor is responsible for making these arrangements. Once all specific bequests have been distributed, the residue is distributed.

· The executor is accountable to the beneficiaries for the assets of the deceased. It is therefore vital that accurate records are maintained when dealing with all debts, expenses, taxes and the distribution of the estate.

REFERENCES:

1. Proudhon, P.J. Commentary; 1989 in Ch. 2

2. Black’s Law Dictionary, 5^th Ed. 1979

3. Barron’s Law Dictionary, 2^nd Ed. 1984

4. Osborne’s Concise Law Dictionary, 7^th Ed. By Roger Bird, Sweet & Maxwell

5. Joseph . S. An Introduction to Islamic LAW, Oxford Univ. Press, 1964

6. Itse Sagay; Nigerian Law of Succession; Malthouse Press Ltd, Lagos; 2006

7. Olayide, A. Cases and Texts on Equity, Trusts & Administration of Estates; Mabrochi International Company Limited; Lagos, 2003

8. Animashaun T.O.G and Ojeneyin A.B- Law of Succession Wills and Probabte in Nigeria – MIJ Professionals Publishers Limited; Lagos; 2002

9. Alexander Pope: Essays on Criticisms; 9^th Ed. 1937

10. Williams on Wills; VAL Law of Wills; 5^th Ed. 1980

11. A.A. Utuama; Nigerian Law of Real Property (1990) Shaneson Concise Univ. Series,

MY INTELLECTUAL BANQUET!

Monday 1 August 2011

MY INTELLECTUAL BANQUET!: EXECUTION OF A WILL IN NIGERIA

EXECUTION OF A WILL IN NIGERIA