Despite odds, experts insist on writing a will

Although many people shy away from it, but death is inevitable and could come at any time. Being able to accept this fact helps the individual to adequately prepare and do the needful while still alive, including writing a Will. As a legal expert once said, even if the individual owns just a car, it is enough reason to write a Will, so there won’t be any brouhaha after his/her death. It goes without saying then, that it becomes even more mandatory for individuals with large estates and families to undertake this critical engagement.

A Will is a legal document with which a person expresses his/her wishes as to how his/her properties are to be allocated at death, with given names of estate managers. In other words, the Will is the last request of the deceased, which ordinarily should be respected and executed as instructed.

However, this is not always so, as mysterious things have been known to often befall the Will after a person had passed on. In some cases, the Will simply disappears and no one is ever able to trace it. In other cases, several factions from the deceased’s immediate or extended families come up with different Wills and then there is serious controversy over which is the authentic one.

Wills are also vehemently contested in court and the wishes of the deceased coldly brushed aside, while executors go ahead to implement the very opposite. The immediate families of the deceased are sometimes brutally deprived of the estate left behind by their loved ones, even when the Will expressly states otherwise. The cases are endless, and seldom do concerned parties respect the content of a Will and act accordingly.

In view of all this, is it really worth the trouble writing a Will? Should individuals still go ahead to write a Will in spite of everything? Does a Will really serve its purpose?

Some legal practitioners, however, told The Guardian that the fact that Wills get contested in court is not enough reason to dismiss the importance of one.

Prof. Chioma Kanu Agomo, former Dean of Faculty of Law, University of Lagos, said writing a Will is crucial and advisable, despite all the odds. She, however, said Wills get contested for certain reasons, which could be genuine.

“A lot of things lead to the Will being sometimes challenged,” she explained. “One of these is when someone has been left out of the Will and the affected person feels that judging from his/her relationship with the deceased, it is not possible for him/her to have been left out. So, he/she would challenge the validity of the Will.

“An individual can also challenge the Will, based on the belief and perception that from the structure or content, he/she doesn’t think the deceased wrote the Will in the right frame of mind; that he/she probably wrote it, when not in his/her correct senses.”

In her view, such cases mostly occur in polygamous settings or homes that are not well managed. So, when the man dies, whether there is a Will or not, the family starts fighting over properties. In such cases, it is not uncommon to see a child fighting the mother and vice versa. Members of the extended family also fight themselves. All this notwithstanding, it is still important to write a will.

She said: “To tackle the problem of controversy over the Will, what most people now do is to share their properties among their children, while still alive. So, everyone is in the know of who owns what. A Will is like the individuals speaking after they have died; trying to set their houses in order, so that when they are no more, it represents them.

“For instance, my dad left a Will and after he was buried, it was administered to probate and his properties were shared just as stated in the Will. Everybody seemed reasonably satisfied, but those who said the Will had not been fully administered, I told them to go back and read the contents, because he put a caveat emptor (if this happens, don’t do this). So, if the family is the understanding and law-abiding type, they live by what the Will says, whether some were given anything or not, because that is the deceased speaking.

“In cases where a Will states that a preceding one revokes the already existing one, sometimes, benefactors who are not satisfied can bring up issues. I know of a situation in court, where the lady says her mother left a Will, while the subsequent one read in court cannot be valid because her mother was coaxed into writing it, as she was not in the right frame of mind.”

Barr. Peter Ilegogie, Principal counsel, Peter Ilegogie & Co corroborated what Agomo said. He also believes it is very relevant to write a Will, even though people still contest it in court.

He said: “It is even worse, when the individual didn’t write one, considering our cultural and traditional background. For instance, in our tradition, when a rich man dies, the younger brother inherits everything, including the wife and the children. Most times, this younger brother doesn’t take care of the late brother’s wife and children, as the deceased would have. So, for that reason, it is very important and necessary to make a Will.

“When you do this, you are putting your house in order, as you would have distributed what belongs to you and give to your children the way you wish, not someone coming to lord it over them and sit on fortunes that he didn’t suffer for. At times, the deceased’s brothers try to force the widow to sleep with them or become their wife and when she refuses, she is pushed out. So, it is necessary to make a Will and not only that, you also expressly tell your family not to disturb your children and wife after your death. This way, nobody will bother them after you have passed on.”

He said it is especially expedient, where the man is polygamous, as writing a Will makes it quite easier. In some cases, the man simply tells his wives never to sell his properties, but instead, they should use them to generate funds for training his children.

“But in the absence of a Will, the first thing they are likely to do is sell the properties and share the proceeds, while neglecting to send the children to school or care for their other needs. Some of the women may remarry, which will not be in the best interest of the children,” he explained.

Enumerating the many reasons why people contest a Will or head to court, he said: “There are certain requirements a Will must satisfy. First, the owner must be of sound mind, so that he/she is able to tell the story of his/her life briefly. This is to avoid the situation, whereby somebody will come up to say that at the time of writing the Will, it was done under duress or that a woman somewhere had undue influence on you.

“But if a man is sick and thinks it is better for him to write a Will on his sick bed, then he should get a doctor to confirm that he has a sound mind.”He explained that dissatisfaction with the distribution of the deceased’s estate often leads to some members of the family contesting the Will. In such cases, they may doctor or hide the original Will and proceed to make one that is more favourable to them.

“There is an example of such a case in court. An only son, who lived a reckless life in the UK returned and couldn’t make a meaning of his life. His father was so disappointed that when he died, he didn’t will any of his properties to him. He only instructed that the son should be given N100. That son is now in court because he does not believe his father wouldn’t give him any of his properties.

“A Will should be signed in the presence of two witnesses. But if only one person was present at the time the deceased wrote his/her Will, it is a good ground to contest the Will.

“People should know that the fact that they write a Will does not mean they are going to die immediately. You can write a Will today and acquire a property tomorrow, so you do follow up to the first Will, stating that you want to add it to your estates, as well as, who you would like to inherit it.”