BY: TOBILOBA FOLUWAKEMI OLULEYE
The Corona Virus infection (“COVID-19”) plaguing the world is now regarded by the World Health Organisation (“WHO”) as a pandemic, and it has shown us the fragility of life. COVID-19 has shown us that it is definitely not a respecter of persons or status, as it affects all types and ages of people; it has also killed different people including the poor and the influential. As much as we are advised to take precautions and we are all doing so, it’s also good to prepare for the eventuality of the infection, how to survive the infection and to also put one’s house in order, in the event that one is not able to survive it. Rather than shy away from the fact that life is not guaranteed, most especially when we are faced with a pandemic; it is better to prepare oneself so that one is not caught unawares. Especially when you have an estate of value and many people depending on you whom you want to be fully cared for. Furthermore, it’s good to put your house in order and make your will for the benefit of your loved ones, considering the advantages of making your will and the disadvantages of not making a will which I would be discussing here.
Tobiloba Foluwakemi Oluleye
A lot of people have reservations about making their wills because they believe it can bring the death to them, or that it will cause conflict among the children and other loved ones (“beneficiaries of the will”). Some believe that wills are very expensive and they also do not trust the legal system of Nigeria. These beliefs are unfounded as we shall soon see.
A will would definitely reduce conflict amongst the children and loved ones. It will give the maker of the will (“the testator”) sufficient time and opportunity to distribute his estate according to his wish and the way it will satisfy everybody. It will therefore give him the fulfilment of having put his house in order before his death. Most of the times when a person dies without making his will (i.e. dies intestate), the situation is usually unpleasant. All his relatives would be scrambling for the letters of administration to the estate and fighting one another for the estate. Some relatives end up becoming enemies for years as a result of this dispute.
Furthermore, the testator would have the opportunity of providing for his loved ones and those he owes a duty. For example, some non-relatives could have been helpful and kind to the testator while alive and they would never be beneficiaries of the testator’s estate, unless he made provisions for them in his will.
It is very important for a testator who has infant children to make a will to make provisions for his children. He could create trust funds for the benefit of his children and appoint trusted trustees to administer the trust funds. He also has the opportunity to appoint guardians for his infant children to love and protect the children after his death; especially if he was the only parent alive before his death. We have seen cases of children of the deceased being maltreated and cheated of their parents’ estate due to the lack of provision for them before the deceased’s’ death.
The process of getting letters of administration to the estate of a person that died intestate could also be quite long and stressful. Sometimes, the relatives end up resolving the disputes in court which could waste their time. The administration of a testate estate (the estate of a deceased that made his will) therefore takes less time than the administration of an intestate estate (the estate of a deceased that didn’t make a will). The administration of a testate estate is also cheaper. A will reduces the costs involved in applying for grant of letters of administration which would be needed for an intestate estate and it also reduces the Inheritance Tax Liability where substantial assets are involved.
In addition, the testator also has the opportunity of appointing the people he trusts as the executors of his will; people he is certain would administer his estate the way he wants. More so, he has the benefit of expressing his opinions and advice on the administration of his estate and for the benefit of his loved ones.
In addition, a will removes the application of the rules of statutory devolution. For example, section 49 (5) of the Administration of Estates Law deals with succession to intestate property of a person married under the Marriage Act who died intestate while residing within Lagos State and it provides that when a spouse married under the Marriage Act dies intestate and is survived by his spouse and children, the surviving spouse shall be entitled to two-thirds of the real estate of the deceased. This decision was also made in Motoh v. Motoh (2011) 16 NWLR (pt. 1274) 474 at 530. Even where the deceased had divorced his wife and his surviving children are still minors or under-aged, the letter of administration to the estate would still be granted to the divorced spouse. In Administrator- General v. Coker (1948) 16 NLR 11, the court held that in spite of the divorce, the mother was in the circumstance the right person to represent the child during minority and that, the grant should be issued jointly to her and a relative of the deceased. A deceased who does not want his estate to be subject to statutory provisions, but according to the way he wants it should therefore make his will.
Lastly, a testator has the opportunity to make provisions in his will to sustain his investments and ensure the continuity of his business interests. For example, a testator who has a vast estate and business interests runs the risk of his business falling into disrepair if he does not make provisions in his estate for their continuity.
The benefits of making a will definitely outweighs the unfounded fears and beliefs about not making a will. We have also shown what could happen when a will is not made to protect the estate and loved ones of a deceased. It is therefore of a great advantage to consider this and make provisions for one’s loved ones and business.
TOBILOBA FOLUWAKEMI OLULEYE is a Senior Executive Writer with YoungNigerian.com. She is an intelligent and versed legal Practitioner, a writer with an astute passion for enlightenment, and also an active mentor volunteer. She writes on law, inspirational, lifestyle, career and health related issues. You can reach her on [email protected] or on LinkedIn .