Highlighting Imperatives of Will

Many Nigerians are conversant with high profile litigations in which the family of rich people feud over assets left behind by progenitors who died without a Will. Even where a Will exists, it is often disputed by claimants, especially when polygamy, prime assets or allegations of ‘illegitimate offspring’ come into play. In the ensuing quagmire, lives may be lost and reputation damaged, further compounding the family’s emotional turmoil and in several cases peace never returns to the fold.

A typical reaction to such squabbles by outsiders is indifference, a position fuelled by the belief that only rich people bequeath assets. This belief is however misplaced as you don’t need to be wealthy to have a Will. Regardless of societal status, almost everyone owns something. Most people have bank accounts, shares, insurance policies, and retirement savings accounts, among others. In the home could be such possessions as television sets, phones, settees, fridges, Hi-Fi systems and watches; while inside the box could be different attires (both native and foreign), shoes and jewellery, all worth large sums of money. There could also be items that an individual has sentimental attachment to, say a necklace, wristwatch or even dog, and which the individual would want to pass on specifically to a particular person. Inheritance of these items, as minor as they seem, become a point of contention upon death, without a Will.

It is such disputations, among others, said Binta Max-Gbinije, Chief Executive of Stanbic IBTC Trustees Limited, that makes it imperative to spare oneself and family the anguish of litigations and enmity by preparing a Will on the administration and distribution of assets.

“A Will is not only for people who have reached a certain age when death is considered ‘not far away’. People die at any age and a Will is needed, especially if you have assets and property that should be allocated to persons who you wish to give them to. Making a Will is one of the ways that anyone can ensure that the assets will be distributed according to expressed wishes,” Max-Gbinije stated.

African Perspective to Will
In Africa, there is no reliable data to determine attitudes towards Will. The usual practice is to follow whatever path is shaped by customs and tradition concerning inheritance. This tendency is not restricted to any particular demography or income groups, which is why many ignore the issue of a Will until they die intestate, that is, without a Will.

Findings have revealed that due to a variety of reasons, most people refrain from dwelling on the subject matter of their own deaths, even though practically everyone recognises that it is an inevitable end. And when death occurs intestate, the concern shifts to the palpable impact on the living, particularly the immediate family and relations, triggering a jostle for whatever estate the deceased may have left behind.
“Losing a loved one is traumatic, doubly so if it is unexpected. But if you have a Will in place, it allows family members to grieve without having to also worry about legal considerations,” said Head of Financial Consulting at Standard Bank, Angela Mhlanga.

Implications of Intestate
In Nigeria, and indeed other parts of the world, the contest goes beyond legal adjudications. Everything is thrown into the fray. The dispute manifests in such entangling scenarios as sibling versus sibling; mother versus children; children from a first or step wife versus those of the second (or third or fourth) wife; the family relations against the wife and/or children. The showdown could become ugly resulting in physical confrontation and the attendant risk of more deaths.

Speaking with THISDAY, a legal practitioner, Ikechukwu Nwachukwu, explained stated that, “In more advanced climes, the Will is often cited as the most important document an individual will ever write. And the reason is simple: it allows you to select the persons who will receive what you own when you die. Without a Will, the individual is denied the privilege of selecting the recipients of his assets, a right he forfeits to the state or people he doesn’t want or even like. In some instances, the people who are expected to inherit the deceased’s assets may not even get them. By outlining how your assets are shared, there is some dignity and pride in knowing that your express wishes will be carried out after you are no more.

“There is a common assumption that when people die, their next of kin, preferably the husband or wife will automatically inherit their estate. Sadly, that rule does not always apply. When someone dies without a Will in place, commonly described as intestate, the laws of Intestacy will apply, with their rules determining who gets what,” he stressed.

THISDAY findings revealed that if a deceased’s assets are located in Nigeria, customary, Sharia or state law will govern the distribution of the assets. However, this may not be what the deceased wants and can result in the surviving spouse, family and friends suffering unnecessary financial hardship and emotional stress.

Writing a Will
Writing a Will is fairly straightforward. But experts opined that there is more to that as it must conform to some clear-cut guidelines adding that a poorly written or unclear Will could create unintended problems that could render it invalid before the law. It was further learnt that sometimes, family situations could be very complicated or an individual’s level of proficiency is quite inadequate. These are typical circumstances that make the services of a corporate entity, like a trusteeship firm or lawyer, a better choice. This will ensure that the Will is correctly drafted and signed.
Respondents to THISDAY enquiries insisted that while the traditional practice remains good, it however has several drawbacks that could be problematic.
These include collusion and breach of trust, diversion of funds, and termination of function because of death of the trustee, usually an individual; and family squabbling. A sound corporate trustee, on the other hand, guarantees many unmatched advantages which include continuity of role and function, objectivity and professionalism, as well as quick and prompt attention to affairs and elimination of diversion.

Preparing a Will
“Overall, the requirements for preparing a Will, across most jurisdictions, are uncomplicated. The person must be 18 years and above; the Will must be voluntarily made and written down. The witnesses cannot be beneficiaries of the Will. The Will must be dated, while younger children must have a guardian representing them. It is also recommended to get advice from experts and choose an executor, preferably a company as this guarantees perpetual succession and expertise,” another Legal practitioner, Alexander Omini explained.

“The Will should be reviewed every year or as circumstances change so that it accurately reflects the person’s current wishes. Remarriage, divorce, adoption or birth of a new child, death of a family member or beneficiary and substantial alteration in the value of an estate, are among reasons to update the Will,” Nwachukwu added.

However, it has emerged that a major challenge for operators and regulators in the Nigerian environment is the seeming lack of considerable awareness on the necessity of a Will. As information and knowledge creates an opportunity for people to make changes in beliefs and behaviour, experts say achieving this goal in Nigeria requires all hands on deck. This point was driven home recently at a media interactive session organized by Stanbic IBTC Trustees Limited in Lagos.

At the event, Max-Gbinije had stressed that, “We are not where we should be, but we are certainly also not where we used to be. Practitioners are raising the bar and massively educating the masses as to the benefits of the offering. This is gaining grounds in leaps and bounds but I agree that there is yet a long way to go.”

“Such awareness campaigns should be specifically targeted at those from 25-50 because they are known for being less focused on such issues, which they casually dismiss as unimportant or reserved for a future date. “We will keep at it and educate, coach, teach and mentor at every forum and every chance we get until the day that the average Nigerian will not tremble or consider it morbid to discuss estate planning but see it for the very prudent course of action one ought to take once an individual attains adulthood,” Max-Gbinije added.

Speaking further, Max-Gbinije stressed that, “Planning for the future is indicative of maturity and responsibility. Having a Will, regardless of the size of your wealth, is actually cool; it connotes responsibility and a desire to maintain peace and calm when someone has passed on. It is rare to find anyone who would deliberately want to leave chaos behind. It would also be graceless not to ensure that your assets, regardless of how small, were dealt with the way you wish,” she concluded.