COUNCIL OF LEGAL EDUCATION

NIGERIAN LAW SCHOOL

YOLA CAMPUS
PROPERTY LAW PRACTICE PRE-CLASS ASSIGNMENT
GROUP 7

Pam Dung a Lagos based legal practitioner made a will on 1st January, 2020. On that fateful day, the
following course of events happened:
i. Nenzar Rotji, James Lalu and Lawrence David witnessed the will.
ii. Pam Dung was critically ill with stroke and directed his office Secretary Nanret Gubam to sign the
will on his behalf.
iii. Instead of signing at the foot of the will, Nanret Gubam signed on the margin of the will, opposite
the space provided for the signature of John Pam.
In the will made on 1st January. 2020, Pam Dung bequeathed 90% of his estate to his receptionist,
Ms. Lovebird Nwogu, whom he was known to have always hanged out with after the close of work.
He has been having some amorous relationship with her. He ate only her food and was fond of her.
The gifts to Ms. Lovebird Nwogu contrasted the provisions of his earlier will made in 2004 wherein
he gave his wife Ujan John all his estate.

On the 2nd of February,2022, Pam Dung died and the will of 2020 was challenged in court. Your
advice is required on the following issues as a young lawyer who has just been called to the Nigerian
bar.
a) Rationale for making a will.
b) Types of will.
c) The features of a will.
d) Requirements of a valid will.
e) Who can make a will?
f) Properties that can be bequeathed or devised.
g) Mode or ways of executing a will.
h) What does due execution entails?
i) Who can be a witness to a will?
j) Effect of being a witness to a will and the exceptions.
k) Proof of mental capacity and intention.
l) Factors the court will determine in establishing mental capacity
m) The validity of Nanret Gubam’s signing the will on behalf of John Pam and also signing on the
margin rather than the foot of the will.
n) The validity of having three witnesses instead of two witnesses to attest to the will.
o) That Ms. Lovebird Nwogu had unduly influenced the testator to make his will in her favour, since
the relationship is tainted by immoral considerations.
p) Comment on the following:
i. The rule in JADESIMI V OKOTIE EBOH (1996) 2NWLR (PT 429)128.
ii. Johnson v Maja (1950/1951) WACA 290
q) Why would you need to advise Pam Dung on the position of his signature and those of his
witnesses?

ANSWERS

A). The rationale for making a Will are as follows:

i).Disposition of property is done according to wish of the testator
ii).To avoid the application of the rules of intestacy
iii).The testator has the opportunity of appointing his executors
iv).The testator can extend the powers of the executors
v).Making a Will saves time,energy and may reduce friction amongst beneficiaries
vi).The administration of a testator estate is cheaper than the administration of an intestate estate.

B). Types of wills

i).Formal Will
ii).Holographic Will
iii).Mutual or reciprocal Will
iv).Privileged Will
v)Nuncupative/customary Will

c) The features of a will.

ANSWER
Written Form: It must be in writing, except privileged will and a nuncupative Will. Section 9 Wills Act,
Section 4(1) (a) Wills Law of Lagos State
2. Testamentary: That is, it speaks or only from the death of the testator or comes into effect upon
the death of the testator.Section 24 Wills Act.
3. Ambulatory: a will is not static; it can be revoked at any time before the death of the testator. It
can be altered and even nullified.
4. Voluntariness
5. Execution in Accordance to the Law
6. Sound Disposing Mind (Corpus Mentis)
7. Disclosure of Intention of Testator

d) Requirements of a valid will.

ANSWER
Wills Act 1837 stipulated formalities which must be strictly adhered to:
1. It must be in writing,
2. It must be signed,
3. The signature must be done before or acknowledged in the presence of 2 witnesses present
at the same time.
4.Legal Age: the testator must be of age approved by the relevant law
5.Mental capacity: a testator must have the mental capacity to make a will. This must be present at
the time of giving instructions and at the time of execution

(e)Who can make a will?

ANSWER
Generally, any person of full (legal) age who has the right mental capacity can make a will.

f). Properties that can be bequeathed or devised.

The following are the properties that can be bequeathed e.g cars, houses etc

g) Mode or ways of executing a will.

The three (3) modes of executing a will are as follows:
1. Execution is done by the testator in the presence of at least 2 witnesses who must in his
presence also attest to the will.
2. Execution by a representative duly authorised by the testator signing it in the presence of
the testator and at least 2 other witnesses.
3. By the testator himself pre-signing it and then acknowledging his signature in the presence
of at least 2 witnesses - Section 9 Wills Act.
h). h) What does due execution entails
Will appears ex facie regular. For the presumption to be invoked
- Will must be regular on its face
- Have proper attestation clause
b. Proof by positive evidence
*no formal or insufficient attestation clause
*evidence by attesting witnesses
*lawyer that drafted the will etc.

i) Who can be a witness to a will?

Anyone except a beneficiary to a Will and his/her spouse cannot take the gift made to them under a
Will if either of them is a witness to the Will.

j). Effect of being a witness to a will and the exceptions.

EFFECTS OF BEING A WITNESS
A witness attesting a will cannot benefit under the will and any gift made to such person will be
utterly null and void. The same rule applies to the spouse of a witness (a spouse at the time of
attesting the will),not one who marries a witness after attesting the will
Exceptions
(a) Where a witness had signed the will before marrying a beneficiary under the Will
(b) There are more than 2 witnesses who attested to the Will and one of them benefited
from the Will
(c) The gift was made in settlement of a debt
(d) ThegiftwassubsequentlyconfirmedinanotherWillorcodicil,whichisnotattested
to by the beneficiary.
(e) The rule does not apply to privilege wills
(f) The witness is subsequently appointed a Solicitor to the Will which contained a
charging clause
(g) Where the person present merely signs that he agrees with the content of the will but
not as witness

k) Proof of mental capacity and intention.

To prove the mental capacity of a testator, reliance may be placed on either or both of
1. Presumption of a Sound Disposing Mind: It is presumed that a testator was sane at the time
he made his Will. The presumption of sound mind is based on the view that where a will
appears ex-facie rational and logical, it will be presumed to be so.
2. Positive Affirmative Evidence of a Sound Mind: that the testator wrote the will; that
there was attestation before witnesses; conduct of testator before and after the will was
made; evidence of general habit in the course of life, medical evidence.

l) Factors the court will determine in establishing mental capacity

1. The testator must have a sound disposing mind and memory
2. A recollection of the property he wishes to dispose
3. A recollection of the persons who are the object of the bounty
4. Remember the manner in which it is to be distributed between them

m) The validity of Nanret Gubam’s signing the will on behalf of John Pam and also signing on the
margin rather than the foot of the will.
There are three ways a will can be executed which are;
1. Personal execution by the testator
2. Execution by delegation
3. Testator pre-signing the will (acknowledge signature).
A testator can authorize another to sign the will on his behalf and in his name; in his presence and
that of at least two witnesses; the witnesses to be present at the time of execution; thereafter attest
to the will in the presence of the testator but not necessarily in each other’s presence or presence of
the delegate.

At such, the delegation of Nanret Gubam to sign the will on behalf of the testator is valid. Also, in
executing a will, a testator can sign anywhere in a will. However any gift coming after the signature is
invalid.

n). The validity of having three witnesses instead of two witnesses to attest to the will.

The provision of S 9. Wills Act and S.4 Will Law of Lagos provided for at least two witnesses to attest
to a will, which implies that their can be more than two witness to attest to a will.
Attestation by three witness is valid.

o) That Ms. Lovebird Nwogu had unduly influenced the testator to make his will in her favour, since
the relationship is tainted by immoral considerations.

Answer:
One of the circumstances under which a gift may fail is the existence of vitiating elements one of
which is undue influence~OKELOLA v BOYLE. Immoral considerations would not amount to undue
influence if it lacked coercion that could override the testator's testamentary freewill~Johnson v
Maja.

Therefore, the gift from the testator to Ms. Lovebird Nwogu will not fail as a result of immoral
considerations unless the following can be proved:

a. She coerced the testator to make the gift in her favour; and
b. The coercion has the effect of overriding the testator's testamentary freewill.

p) Comment on the following:

i. The rule in JADESIMI V OKOTIE EBOH (1996) 2NWLR (PT 429)128.

The testator in 1942 got married under Itsekiri custom. His Will was executed in 1947 and in 1961 he
subsequently got married under the Act. In 1966, the testator died during a coup d’etat. The
question was whether the 1961 marriage revoked the will in 1947. The Supreme Court decided that
the will was not revoked because the subsequent marriage under the Act was to the same person
married under customary law. The subsequent marriage is not a new marriage and is superfluous.

ii. Johnson v Maja (1950/1951) WACA 290

It is not undue influence where a husband deprives his wife of benefits and
gives generously to another person, even if the reason for doing so is tainted
with romantic considerations for the other person.
 In Johnson v. Maja,
the testator gave much of his property to his mistress rather than his wife. The wife alleged undue
influence on the testator, claiming
that the mistress was arrogant, that the testator cared only for the mistress and
stopped communicating with her (the wife). The court held that there was no
undue pressure, more so that the mistress did not accompany the testator to
the house of the witnesses who attested the Will, and there was nothing which
directly connected the mistress with the process of making the Will even
though there was evidence that the testator shifted his affection from his wife
to the mistress.

q) Why would you need to advise Pam Dung on the position of his signature and those of his
witnesses?
In all cases, the testator must sign before the witnesses sign. In order to avoid fraud, any disposition
or direction which is underneath or follows the testator’s signature is invalid - Section 1 Wills Act
1852; Section 4 Wills Law.