A badly drafted will causes more family conflict than no will at all. Formal validity, customary law and dependants’ claims all have to be handled together, at the drafting stage.
A badly drafted will causes more family conflict than no will at all. Where there is no will, the law supplies a framework and everyone knows the rules. Where there is a defective one, the family argues about the document, the estate is frozen while they do, and the person who wanted to prevent exactly that outcome is no longer available to explain what they meant.
Get the formal requirements right, first
Formal validity is unforgiving, and it is the easiest thing to fail on. Under the applicable state Wills Law, a will must generally be:
- In writing.
- Signed by the testator, or by someone else in their presence and at their direction.
- Witnessed by at least two witnesses present at the same time, who then sign in the testator's presence.
A beneficiary must not be a witness. Nor should the spouse of a beneficiary. A gift to a witness generally fails, and the disappointed beneficiary rarely accepts that outcome quietly.
Capacity, and the challenges that follow from it
The testator must be of sound disposing mind: they must understand the nature of the act, the extent of their property, and the claims of those they might be expected to provide for. Where age or illness could later be used to question capacity, a contemporaneous medical opinion at the time of execution is a modest step that defeats a great many challenges.
Undue influence is the most frequently pleaded ground for contesting a will, and the most frequently created by drafting done privately, in haste, with an interested party in the room.
Customary law does not simply disappear
Testamentary freedom in Nigeria is real but qualified. Depending on the state and the personal law of the testator, customary law may restrict the disposition of certain property — the family compound being the recurring example. A will that ignores this produces a grant that cannot be implemented in practice.
This is where general guidance stops being useful. The interaction between the applicable Wills Law, the testator's personal law and the nature of each asset has to be worked through specifically.
Dependants have claims
In several states, dependants who were being maintained by the deceased may apply for reasonable provision from the estate notwithstanding the terms of the will. Excluding a dependant entirely is therefore not the end of the matter; it is often the beginning of a claim. Where exclusion is genuinely intended, the reasons should be recorded and the risk should be understood.
Choosing executors
Appoint at least two, and choose them for competence and impartiality rather than seniority. An executor who is also the principal beneficiary, in a family where the dispositions are contentious, is an invitation to litigation. Confirm that they are willing to act before you name them.
Practical drafting points
- Describe assets precisely — a property should be identified by its title document and location, not by a nickname the family uses.
- Include a residuary clause. Without one, anything not expressly given falls into a partial intestacy and is distributed by rules you did not choose.
- Provide for the possibility that a beneficiary predeceases you, and say what happens to their share.
- Appoint guardians for minor children, and consider a trust rather than an outright gift where beneficiaries are young.
- Deposit the will properly — with the probate registry or with your solicitors — and tell your executors where it is. A perfectly drafted will that cannot be found achieves nothing.
Review it when life changes
Marriage, divorce, a birth, a death among your beneficiaries, or the acquisition or disposal of a significant asset should each trigger a review. A will drafted for circumstances that no longer exist can be worse than none.
We draft and safeguard wills, advise executors, and act in probate and letters of administration — including contested estates. If you have been meaning to do this for some years, that is the usual position, and it is a short conversation to start.
Note. This article is general commentary on Nigerian law and is not legal advice. Its application depends entirely on your facts. Speak to counsel before acting on anything you read here.