Monday, 24 September 2018

LIMITATIONS ON THE RIGHT TO MAKE A WILL

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The law recognises the right of a person to dispose of his property as he pleases, thus, the law recognises the right of a person to make a Will.  This right is guarded jealously by the law, such that were it is established that the Will made by a testator is not a product of the testator’s freewill, such a will would be declared to be void. Yet, the right of a testator to make a Will is not an unfettered one; it is a right which is restricted by the law. Non-compliance with the set limitations could invalidate the will or a gift under the will.

Generally, under the Wills Law, the following limitations have been identified to exist:
  1. Customary limitations;
  2. Limitations under Islamic Law; and
  3. Provision for family and dependants.
Customary limitations and limitations under Islamic law will be taken together.
 
CUSTOMARY AND ISLAMIC LIMITATIONS
The Wills Law of the various states of the Federation impose some limitations on the right of a testator to dispose of his property. For example, Section 3 of the Wills Law of Oyo State provides that:

it shall be lawful for every person to bequeath or dispose of, by his will executed in accordance with the law, all property to which he is entitled at the time of his death; provided that the provisions of the law shall not apply to
  • any property to which the testator had no power to dispose of by will under customary law, to which he was subject,
  • And to the will of a person who immediately before his death was subject to Islamic law.This provision is replicated in the Wills Law of other states, though differently worded.
Customary law recognises the right of a person to make a will, however, the limitation placed upon a person under customary law extends only to certain gifts/ property.  The limitations placed upon a testator is dependent on the customary law applicable to him. However, generally, it has been judicially noticed that customary law directs that certain gifts/property be given to a specified person; where the gift or property is given to someone else, the gift and the clause in the Will, wherein the gift was made becomes void, but this does not affect the validity of the entire Will.
Of all the customary limitations that exist under customary law, the concept of ‘IGIOGBE’ under the Bini customary law[1] has been judicially noticed and pronounced upon severally by the courts.

‘Under Bini customary law the igiogbe which was the home where the deceased’s father lived in his life time, is inherited by his eldest surviving son’[2]. ‘By the customary law of Benin, upon the death of a father…. the eldest son automatically inherits the main seat of the deceased father. That is to say, the house where the deceased lived, died and was buried. This house is called “IGIOGBE”.[3]

The Igiogbe cannot be given to a person other than the eldest son by Will by a father, no matter how much he desires to do so. This is a limitation imposed by the customary law of the Bini people, recognised by statute and constantly upheld by the courts.

The court in Uwaifo V. uwaifo[4] stated thus ‘the practice of a Bini customary law which gives the eldest son the prerogative to inherit the igiogbe has not changed from time immemorial. The right to inherit and possess such property vests only in the eldest son. The tradition takes precedence over and above the wishes of a deceased father no matter how strong he feels against his son as the prospective heir. It is a right vested in the eldest son and which cannot be divested by means of disinheritance.’[5]

ISLAMIC LAW LIMITATION
Under Islamic law, a person is permitted to dispose of only one- third of his Estate by Will to persons who are not his lawful heirs, the other two-thirds can only be given out to persons prescribed under Islamic law and in the manner prescribed by Islamic law.
Under the Wills law of states that have the Islamic law limitation, a Muslim cannot make a will under the Wills law, but must make his will in accordance with Islamic law. The court in Ajibaiye V. Ajibaiye[6] held that a Will made by a Muslim in contravention of the Wills Law applicable to him as void.

The restriction of the right of a Muslim to dispose of his property as he deems fit under the Wills law amounts to a restriction of the right of a person to make a Will.

PROVISION FOR FAMILY AND DEPENDANTS
The Wills Law of a few states like Lagos, Abia and Oyo recognise the right of certain family members or dependants to apply to the court on the ground that the testator in his will failed to make reasonable financial provision for the applicant.

A testator has the freedom to give out his property by will as he pleases; he could choose to disinherit a recalcitrant child or appreciate by way of gifts the services of a diligent staff. Where the law can be used as an instrument to vary the wishes of a testator who failed to make adequate provisions for his family and dependants, it amounts to a restriction of the right of a person to make a will.

The laws of states that have this provision empower a spouse and children of a testator to apply to the court for an order making reasonable financial provision for them, on the ground that the will of the testator failed to do so.  The category of persons who can apply to the court for this order is wider under the laws of Oyo and Abia State, as it includes parents, brothers and sisters who immediately before the death of the deceased were being maintained either wholly or partly by the deceased.[7]
 
 
 

[1] The Igiogbe custom is peculiar to the Bini people of Benin in Edo State of Nigeria.
[2] Idehen V. Idehen (1991) 5 NWLR Pt. 198 pg.382
[3] Supra.
[4] (2013) LPELR- 20389 (SC)
[5] Uwaifo v. Uwaifo
[6] (2007) LPELR-8775 (CA)
 
[7] See Section 4 of the Wills Law of Oyo State.

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