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.

Was this post helpful to you? Do you want to know more? Then don't forget to click on the subscribe button on the home page so you don't miss out on any of our posts.

Next post, We shall consider each form mentioned above, how it affects a testator’s right of bequest and the justification for such limitations.

Reading links:  
http://eikins.com.ng/2016/10/06/sources-of-nigerian-law/
http://thenigerialawyer.com/testamentary-freedom/
https://martinslibrary.blogspot.com/2015/01/right-of-testation-statutory.html https://file.scirp.org/Html/13-3300676_85468.htm







Comments

Post a Comment

Popular posts from this blog

The Girl-child and Her Right OF Inheritance

-
Image
 From time immemorial, the female gender has faced a host of discrimination; deeming her inferior to the male. Her right to work, vote, education, roles she could assume in society, whether or not she could own properties or be allowed to inherit properties from her father have all been decided by a mainly patriarchal society. Nigeria is no stranger to the relegation of women to the background; especially through customary law and practices. One of the most prominent is the right of the girl-child to inherit property. In different parts of Nigeria, customs restrict or totally exclude women from inheriting property (especially landed property) from their husbands or parents. This is especially worse for widows, as they are often regarded as property themselves; “items” to be inherited by their brothers-in-law. Even the less derogatory customs tend to tie a woman’s right to inherit to whether or not she has a male child.   Female children can now inherit from their fathers
Read more

Make Hay While The Sun Shines

-
Image
Olivia was five years old when her parents divorced. Her mother, Sarah, moved out of the cozy house she had once shared with her ex-husband, relocated back to Nigeria and moved into a much bigger lavishly furnished house with a beautiful view of Lagos. Olivia had a room to herself and a big playground to run around in, but it was never the same and she was lonely. Sarah was an investment banker in one of the top firms in the state and had dabbled a little in real estate earning her a sizeable estate and counting. Putting the divorce behind her, she focused on building a future with her daughter by her side . Her busy schedule allowed her to see her daughter only at night. She found Olivia curled up in her bed one of those nights; a mountain of pillows around her like a forte, fast asleep. Releasing a sigh, Sarah laid watching Olivia “you will understand someday baby, I am working to build a future for you” she whispered brushing Olivia’s hair. 4:45pm Thursday Evening.
Read more

How Much Is Your Last Will and Testament Worth?

-
Image
Everything has value; what varies is the measure of value attached to it. What is seen as worthless to one could be priceless to another. The worth of a thing is determined by the value a person or the society attaches to it, whether it is a 1962 Ferrari 250 GTO, a Hermes handbag, or a simple pen.   How Much is Your Last Will and Testament Worth ? Several items are auctioned around the world annually. Such items ranging from valuable antiques and collectibles to artworks made by famous artists are sold at very high prices. For instance, Jeff Koons, an American artist sculpted a balloon dog which was auctioned and bought for $58.4 million in 2013!! Pretty amazing I’d say!                                           The last will and testament of Walt Disney, the man behind many beloved cartoon characters and Disneyland, was auctioned in 2017. It Sold for $11,875 even though it was expected to fetch between $40,000 and $60,000.  That is not a bad price for a person’s Will Si
Read more