There are many ways in Nigeria a person can give out his properties after death both statutory and customary laws have provisions for this, the aim is to ensure that the property passes to the desired person or persons.
The ways properties including real estate can pass to the beneficiary include the following:
- Statutory Will: the general believe in our environment is that anyone who makes a will, will soon after this is not true. Wills are testamentary instruments by which a testator (the maker) passes inheritance to the beneficiaries. This process is guided by statute namely: the Wills Law available in all states, some with local flavours. Any will made must be in compliance with the provisions of the Law otherwise, it will declared by the courts to be null, void and of no effect whatsoever. If such happens the gift may end up in the hands of persons that the benefactor never intended to confer such benefit on in his life time, I will deal with detail requirements later.
- Nuncupative Will; on the other hand this type of will is oval and takes effect under customary law. If is usually in form of verbal directive of the person in anticipation of death directing his properties or belonging to be shared in stated manner in the presence reliable witnesses. Such wishes are usually complied within collaboration with the testator’s family. This type of will is usually made in contemplation of death, the maker need not to be on his/her death bed before making it, it can be made in good health or in sickness such will not affect the validity of the pronouncement by the maker or testator.
- Customary Will: in written form this is a written will but not under the Wills Law. For instance, a man who is literate can just write his will and keep it somewhere after signing it and leave instruction that after his demise, his family should check a particular place. This type do not require witnesses and appointment of administrators (though he can assign someone to monitor compliance) as required by the formalities of Law.
There is school of thought that has argued that such written document should be subjected to the test for validity stated in the Law while others have contended that as long as the content is agreeable to the family, there is no need to subject it unnecessary legalism as it is the will of the
There are other ways of giving out property outside the three mentioned above. These include the following:
- Gift inter vivos: That disposition made while the giver is still alive. For instance a man may give his house or and to a favorite child while alive or to an institution by signing appropriate documents.
- Nomination: This in form of direction to Mr. A to hold funds for Mr. B and pay same to Mr. C in event of Mr. B’s death unlike will it is general has to do with money Note that nomination takes effect after death.
- Donatio Mortis Causa: This form of confirming benefits which is made during the life time of the benefactor but only takes effect after the demise of the benefactor. However, there are three conditions for validity.
- The gift must be made by the donor while contemplating death, though not necessarily in expectation of death.
- The gift must be conditional death upon the death of honor, if the giver or donor did not die afterward, the gift can be revoked.
iii. The donor must part with the control over the property before he dies
- Requirement for valid will: Section 4 (1) of the Wills Law, a testator must sign a will in such place on the will so that it is apparent on its face that he intended to give effect to the will by that signature. If he is an illiterate he is unable to sign, he can thumb print the signature portion at the foot of the will. He can also mandate another person to sign on his behalf in case of one disability or the other but the person must sign in his presence and at his direction and in the presence of the witnesses.
It to be noted that the signature need to be at the foot of the will. The signature need not be the testator’s usual signature it may be his initials. It has been held that “your loving mother” is acceptable if it is meant to represent the name of the testatrix.
To be continued.
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