Sunday, 16 December 2018

CAN A WITNESS BE A BENEFICIARY UNDER A WILL?

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A will is a document which contains directions on how a testator (the person who made a will) wants his property shared or administered after his death.

The court is usually eager to give effect to the desires of a testator. However, the court will only declare a Will valid if it is established that such a Will is indeed the Last Will and Testament of a capable testator.

If a will is examined by the court and it looks regular and appears to have complied with all the requirements stipulated by the law, there would be a presumption in favour of the Will that it is valid. This presumption will only be displaced by evidence which proves the contrary. It is therefore important that a Will is in the form prescribed by law.

A Will must satisfy the following conditions:
1.    A Will must be in writing;
2.    The Will must be signed by the testator or signed by some other person directed by the testator  to do so on his behalf in his presence
3.    The testator must have signed or acknowledged his signature in the presence of at least two witnesses.
4.    The witnesses must attest the Will in the presence of the testator.

The law requires that the execution (signing) of a Will should be attested by at least two witnesses. The testator can choose persons of his choice to attest the execution of the Will. However, can a witness to the execution of a Will also be a beneficiary under the same Will?

Under Nigerian law, a witness to the execution of a Will cannot also be a beneficiary under the same Will. Such a witness or his/her spouse cannot be given any gift by the testator under his Will. If a person who was an attesting witness to a will is given any gift under the Will or if his/her spouse is given a gift under such a Will, such gift would be invalid. It should be noted that the entire Will does not become invalid; it is only the gift made to such a witness or his/her spouse that will fail.

The law therefore prohibits a witness from being both a witness and a beneficiary; and such a witness’ spouse cannot be given any gift under the Will also.

There are some situations where the law would permit a witness or his spouse to take benefit of the gift given under the Will. The recognised instances are:
1.    Subsequent Marriage - If a gift is made to a beneficiary and the witness to the Will subsequently marries such beneficiary under the Will, the gift given to the witness’ spouse remains valid. Thus, if the witness gets married to a person who is a beneficiary under the Will after the Will was made, such a gift made to the witness’s spouse remains valid.

2.    If the gift made to the witness or his/her spouse under the Will is in satisfaction of a debt owed the witness or his/her spouse by the testator, such a gift remains valid.

3.    If the gift made to the witness or his/her spouse is confirmed in a supplementary will (Codicil) or another Will to which the witness did not attest, it remains valid.

4.    When there are more than two witnesses who attested the Will, then, a gift made to one of the witnesses or his/her spouse remains valid.

 

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