I wish to point out that the legal issues being treated here are mainly for non-legal community, hence they are simplified for easy understanding of a lay man in law in simple English, though sometimes there are legal terms that may be used but as much as possible the English translation will follow it.
For a Will to be valid certain conditions must be met, these are:
- The Will must be in writing, in other words the Will must be on a paper to be considered as a will, the law did not state the form of writing may take, it may be by hand written by official letter writer as it was practiced in the olden days, or by use of a typewriter or computer, it just have to be in written form.
- Must be sign by the testator: the Will must be signed by the testator or by other person in his presence and at his direction. In cases where the Will is signed by another person other than the testator, the person may either sign the testator’s name or his own name. Thumbprint is also allowed in certain cases e.g. illiterates but in such cases, illiterate jural stating that the Will has been read to the testator in the language he understands and that he thumb printed after he appeared to have understood the content of the will.
- The signing must be in the presence of the witnesses to the Will who will be there and then signed that they were both present when the testator signed the Will, that is, they witness the signing of the Will by the testator. The implication of this is that if the testator did not sign in the presence of the witnesses, the Will may be declared null and void or if the two witness signed at different times the Will is in jeopardy.
It is to be noted that the testator’s signature is to be at the end of the Will though in some situations signing at the sideline has been accepted as valid.
Let us examine the requirement that the witnesses must be present at the same time to a witness the signature of the testator, in the English case of Groffman V. Groffman, the testator has signed his Will afterwards requested two of his friends to witness the will and because there was no convenient space in the room, he took the first friend to another room where he witnesses the Will, after that he invited the second person to do the same but the first witness did not follow him to see the second witness signing. The question before the court was whether the deceased acknowledged his signature before two witnesses, it was held that he did not because the law requires the physical presence of the two witnesses at the same time not at different times.
In another English case; Brown V. Skirrow, the testator signed her Will in a shop in the presence of one of the witness while the other witness was physically present but was gisting with someone nearby and after gisting the testator invited him to witness her signature which he did.
The court held that the requirement of the Law has not been met hence the Will is not enforceable.
From these cases, it is clear that what the law requires is that the two witnesses must be physically present to witness the testor’s signature for the Will to be valid.
Also, the witness must see the testator’s signature for the Will to be valid, if the witness is given the Will to sign and the signature is covered, the requirement has not been met (Hudson V. Parker).
In the case of Apatira V. Akanke, a Nigerian case, the court found that the witnesses were not present at the same time to witness the Will, the Will was held to be invalid by the court.
Also, in the case of George V. George, another Nigerian case, the testator was in hospital fearing he might die he instructed his daughter in law to write down what he wanted to be in his Will she did, he signed in the presence of the daughter in law and she witnessed the Will, about 15 minutes later the doctor who was battling to save his life signed to witness the signature, the testator died within one hour thereafter. The Will was declared invalid.
Emphasis is being placed on the subject of proper signing or execution of Wills because that seemingly trivial aspect may invalidate a well-made Will and truncate the desire of the testator after he has passed away and the beneficiaries will be left in frustrated contrary to the intention of the testator. It is therefore very important to ensure that Will formalities are rigidly complied with.
Visually impaired testators: this another area of the law which lay man may not comprehend easily. They will ask if a blind man can make a Will.
Under the Law a blind man has same right as any other person to make a Will but must complied with formalities required by the Law. After he has dictated what he wants to the writer, the write must read same to him. And this must be backed by a jurat at the foot of the signature column stating that the Will has been read to the testator by Mr. A, a teacher and he signed or thump printed after he appeared to have understood same.
To be on the safer side, it is better for the jurat to be attested to by a magistrate or a notary public after the Will has been read to the testator in the presence of the magistrate or the notary public, this will clear any doubt of possibly manipulation or undue influence.
To be continued.
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