In Nigeria, many people are unaware that there are different types of wills, each designed for various circumstances and needs. Understanding the differences between these wills is essential when considering how best to safeguard your estate and ensure that your assets are distributed according to your wishes.
This post will explore the types of wills recognized under Nigerian law, their unique characteristics, and when each might be appropriate.
1. Simple Will
A simple will is the most common type of will. It outlines the distribution of a person’s assets and appoints executors to carry out those instructions after death. A simple will can be created by anyone who wants to allocate their property, name guardians for minor children, or leave specific gifts to loved ones.
In Nigeria, simple wills are governed by the Wills Act of 1837 (applicable in certain parts of the country) and the Administration of Estates Law in various states. For a simple will to be valid, the testator must be of sound mind, at least 18 years old (or younger for those in active military service), and the will must be signed by two witnesses who are not beneficiaries.
2. Joint Will
A joint will is a single document created by two or more individuals, often a married couple. This type of will combines the wishes of both parties into one document. Upon the death of one party, the terms of the will become irrevocable, meaning the surviving party cannot change its contents.
While this may seem like a good way for couples to ensure their joint wishes are carried out, it can also be limiting. For example, if circumstances change after the death of one party (e.g., new family dynamics or economic conditions), the surviving spouse may feel constrained by the terms of the joint will.
3. Holographic Will
A holographic will is a will that is entirely handwritten and signed by the testator. This type of will does not need witnesses, but for it to be valid in Nigeria, it must be clear that the document was intended to serve as a will, and the testator must have been of sound mind when writing it.
While holographic wills can be convenient, they are not commonly used in Nigeria because they can be easily challenged in court due to the lack of witnesses. Nevertheless, they can be helpful in emergencies or situations where witnesses are unavailable.
4. Oral Will
An oral will (also known as a nuncupative will) is made verbally and is typically used in urgent situations where writing a formal will is not possible—such as when a person is on their deathbed. Under Nigerian law, for an oral will to be valid, it must be made in the presence of at least two witnesses, who can later testify to its contents.
However, oral wills are not universally accepted in Nigeria. The Wills Act of 1837 does not recognize oral wills, but certain customary laws in Nigeria permit them, particularly in cases of sudden death. Oral wills are often used in rural areas where formal written wills may be less common.
5. Mutual Will
A mutual will is similar to a joint will but differs in that it creates binding obligations on both parties. In a mutual will, two people (often spouses) agree to leave their assets to the same beneficiaries. Once one party passes away, the surviving party is legally bound by the terms of the mutual will and cannot change it.
Mutual wills are not widely used in Nigeria because they restrict the freedom of the surviving spouse to alter the distribution of assets after the other party’s death, even if circumstances change.
6. Living Will
A living will is not a traditional will that deals with property distribution but rather a document that outlines an individual’s medical wishes if they become incapacitated and unable to communicate their decisions. Living wills are becoming increasingly relevant in Nigeria, especially in cases involving end-of-life care.
Though relatively new in Nigeria, living wills can help families avoid difficult decisions during medical emergencies, ensuring that an individual’s wishes regarding life-sustaining treatments or organ donation are respected.
7. Customary Will
In many parts of Nigeria, traditional or customary wills are used, which are governed by customary laws rather than statutory laws. These wills are often oral and follow local customs and traditions concerning inheritance. However, the legality of such wills can sometimes be challenged in court, especially if they conflict with statutory law or if family members contest the distribution of assets.
In Nigeria, customary wills are more common in rural communities, where local customs play a significant role in inheritance matters. However, as Nigeria continues to modernize, more people are opting for statutory wills to avoid conflicts between customary and statutory laws.
Choosing the Right Type of Will
When deciding which type of will is most appropriate for your circumstances, it is crucial to consider your estate, your family’s needs, and your long-term goals. A simple will might suffice for most people, but if your estate is more complex or if you have specific requirements (such as providing for children from multiple marriages or setting conditions for inheritance), you may need a more detailed document.
Additionally, seeking legal advice from an estate planning lawyer is highly recommended. A lawyer can guide you through the process of drafting a will and ensure that it complies with Nigerian laws, helping to reduce the risk of disputes or legal challenges after your death.
Conclusion
Understanding the different types of wills available in Nigerian law is the first step toward making informed decisions about your estate. Each type of will serves a unique purpose and is designed to meet different needs, whether you’re seeking flexibility, urgency, or the ability to include specific conditions. By choosing the right type of will and ensuring it complies with legal requirements, you can protect your assets and provide for your loved ones in the way that best aligns with your wishes.