In referring to the word Probate or Administration of the estate of a deceased person, Will would be referred to one way or the other. For instance, some definitions refer to Probate as the legal process in which a will is reviewed to determine whether it is valid and authentic. Another definition refers to Probate as the general administering of a deceased person’s will or the estate of a deceased person without a will.
The meanings of probate in the interpretation sections of the various laws on the administration of the estate of deceased persons also have similar references to the word Will. For instance, Section 2 – interpretation – The Administration of Estate of Deceased Persons Law of Lagos State stated “probate” means the probate of a will. Likewise, Section 58 – Interpretation – Administration of Estate of Deceased Persons Act stated also ‘’probate’’ means the probate of a will.
Read Also: Probate: Its legality and importance
However, the Law and the Act do not contain the meaning of the word, Will in their interpretation sections. They only mentioned what constitutes a Will: “Will” includes a codicil. According to Merriam Webster’s online dictionary, A Will is a legal declaration of a person’s wishes regarding the disposal of his or her property or estate after death. It also referred to it as a written instrument legally executed by which a person makes disposition of his or her estate to take effect after death.
The above explanations should suffice for a legal and academic introduction to the subject matter. However, the subject matter can be better understood using the case of Late Mr. Adekunle who died in 2016.He left behind many assets in several states across Nigeria. I used the case in my article titled Probate: its legality and importance published in the Business Day Newspaper online on the 24th June 2021 – https://businessday.ng/opinion/article/probate-its-legality-and-importance/ and on the 25th June 2021 in the Business Day Newspaper. The scenario, which we all can relate with would be used to expand the discussion on this subject matter.
Late Mr. Adekunle’s wife, children, mother, father, and 3 siblings are in disagreement over the right persons to take charge of all his assets. Unknowingly to them, Late Mr. Adekunle, left behind a written instruction which the eldest Male and Female members of his father’s family were aware and witnessed to by a lawyer and a colleague.
The written instruction is best summed up as containing details of who is entitled to what, and the portions of the many assets in several states across Nigeria.
He apportioned all the shares in some companies with several unclaimed dividends to his wife and children only. While monies in banks and contributions from his former employer were solely for the education of the children under the guidance of his lawyer.
Sales from several published books, contributions from social clubs, and corporative societies were apportioned to his father and mother to be shared equally. Returns and loans repaid from creditors in goods, and cash were to be shared by his siblings.
The father, mother, wife, children, and 3 siblings are to share collected rents from some of the tenants in some of his landed properties equally.
Legally, the written instruction by Late Mr. Adekunle is called a Will. The maker of a Will, in this case, Late Mr. Adekunle is called a Testator. The two eldest Female and Male members of the Late Mr. Adekunle’s father’s family whom he appointed to supervise the estate, each one of them is called an executor. While each member of the family he apportioned and allocated an asset to in the Will is a beneficiary. The lawyer is considered a guardian.
Any person who was there when the Will was signed by Late Mr. Adekunle is a witness. Late Mr. Adekunle having died with a written instruction; a Will would be said to have died intestate.
From the scenario above, the following facts could pass for answers to the question, to or not to write a will?
It is clear who is entitled to what assets in Late Mr. Adekunle’s estate. It is also clear the amount and portions of the assets in the deceased’s estate a member of the family is entitled to. There no likelihood of any form of disagreement on the estate.
Another benefit of having a written instruction like the one written by Late Mr. Adekunle is that the deceased’s estate would be distributed as he wishes. He can appoint and outline the powers of an Executor and/or Trustee. He can appoint a guardian for minor children. He can also specify funeral wishes.
From the above, whether you are married, single, have minor children, or own even a nominal amount of personal assets or property, it is advisable to have a will. In fact, every eligible adult should have a will or other means to control the disposition of his or her assets.
A will can be prepared by any person. Meanwhile, because of the how, the component, other technical, and legal mistakes to avoid in preparing a Will, it is advised, writing a Will should be handled by professionals instead of doing it by yourself.
Using professionals ensure that properties that ought not to be included in a Will are excluded. They also advise on the process, lodging of the Will, grant of probate, and consequential costs. Mostly, they handle the process from start to finish. They liaise with the relatives of the deceased to ensure smooth administration and compliance with the wishes of the deceased. They can be granted powers by the deceased or stated as preferred professional to liaise with the family for the process, instead of leaving it open to the relatives to decide. Which can be tilted with unnecessary selfish desires.
However, the failure of a deceased to write a Will does not mean that his or her estate would be wasted or allowed to waste or that the estate would be subjected to some stringent legal process during the administration of the estate. The process of ensuring the estate of the deceased who died without a Will is well provided for in the Administration of Estate Act and Law.
Writing of a Will by a deceased only ensures the aforementioned benefits to the deceased, his relatives, and the estate generally. With this article, a person is better informed on whether to or not to write a Will.
Adekola is a Legal Practitioner and Head, Probate Services, Greenwich Registrars and Data Solutions Limited. You can reach him on 08165299774 and 08150373535