LIMITATIONS TO TESTAMENTARY FREEDOM IN NIGERIA #1
In Nigeria, the applicable laws in our legal system consist of received English law (Common law, Doctrine of Equity, Statutes of General Application), Local Law (Domestic enactments), Customary Law, Sharia Law and Judicial Precedents (case law).
The act and practice of Estate Planning in Nigeria; a Last Will and Testament in this context, is defined by one or more of the laws listed above. The laws regulating Wills broadly include the following:
· Statutory Law: includes received English Laws and State laws enacted by the legislature.
· Customary Law: refers to a body of customs accepted by members of a community as binding upon them. These customs that pass the repugnancy and compatibility test are sometimes codified by the state.
· Islamic Law: the law according to the Muslim faith and as interpreted from the Holy Qur’an. Islamic law derives its sources from the Qur’an, Sunnah, Ijma, and Qiyas.
These laws recognize the right of an individual to acquire and own property throughout the country as is entrenched in S.43 of the 1999 Constitution (as amended). The implication of this is that if one has the right to acquire property then one also has the right to dispose of such property either during his lifetime or at his passing through testamentary instruments. This connotes testamentary freedom for a Testator, but is this freedom absolute?
TESTAMENTARY FREEDOM IN NIGERIA
Testamentary freedom is a principle whereby a person (Testator) is at liberty to distribute and dispose of his assets/estate in any manner he wishes and to whomever he desires, in his will.
Thus, a testator in his lifetime can gift, distribute or alienate his properties in whatever way he wishes; however, such right is limited in his death as every testamentary disposition made by him is subject to any limitation imposed by law.
The Wills Act of 1837, as well as Wills Law of various states, Administration of Estates Law, and other relevant laws constitute the Legal framework regulating Wills and estate administration in Nigeria. While the Wills Act of 1837 recognizes the testator’s right of bequest as unlimited, the Wills Law of various States have placed certain limitations on such rights. It is can thus be said that Testamentary Freedom is not absolute but is limited.
Laws governing Wills in Nigeria are not uniform in their application since different laws apply to different States. Several States have enacted their own Wills Law which was a re-enactment of the Wills Act of 1837 but took into account the prevalent customs and traditions of the indigenous tribes of each State as it relates to properties and inheritance along with their restrictions. The limitations that exist in the Wills Law of States come in the three forms:
· Customary Law Limitation
· Limitations relating to Provision for Family and Dependents in a Will
· Limitations under Islamic Law.
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Next post, We shall consider each form mentioned above, how it affects a testator’s right of bequest and the justification for such limitations.