GROUP 6.

Scenario:
Mr. Tonye Ekeremo is a nonagenarian, and a retired Army Officer.
He lives in a four bedroom bungalow at Emiringi road, Bayelsa
State. Additionally, he owns landed properties spread across the
length and breadth of the federation, prominent among his
properties are : three bedroom at No. 206 Owode Close, Ikoyi, Lagos
State, guest house at Adisa Estate, off Durumi, FCT Abuja. He
equally owns 2,000,000 (two million) shares in Dangote Cements
Plc. Other movable properties in his inventory include: Toyota
Camry, 2023 model, iPhone 14 promax, to mention but few. His
household is made up of his wife, Perere, and three (3) children
namely: Grace, Haruna, and Pelumi.
Recently, he was diagnosed of severe kidney complication,
dementia and intermittent loss of memory by Dr. Tom of Federal
Medical Centre (FMC) Yenagoa. Despite his condition, he seldom
attends Mondays Fellowship in his church, St. Barnabas Agudama.
Mr. Tonye is apprehensive of what becomes of his son Ike, born
outside wedlock, who is just 16 in the event of his demise.
Consequently, he invited Mr. Ade Esq to his house at Eminringi road,
in his bedroom for the purpose of taking his brief. During the
meeting, Mr. Tonye instructed Ade to draft his (Mr Tonye’s) Will,
based on the following instructions:
1. He should be buried in his living room at his residence in Emiringi
road.
2. Executors to the will: his old friend Karimu and Lagbaja
3. His four bedroom bungalow at Emiringi road, Bayelsa State to Ike
4. His three bedroom at No. 206 Owode Close, Ikoyi, Lagos State, to
his mistress, Jemima Okulu
5. His guest house at Adisa Estate, off Durumi, FCT Abuja to his wife
Perere.
6. His Toyota Camry, 2023 model, iPhone 14 promax, and other
properties specifically not mention to his three (3) children: Grace,
Haruna, and Pelumi.
At the end of the interview, Mr. Ade read over above notes which
were taken in Ijaw language during the briefing, to Mr. Tonye who
confirmed the contents, signed it in the joint presence of Karimu
and Lagbaja who also subscribed the Will. Three days later, Mr.
Tonya remembers that he omitted his shares at Dangote Cement Plc
from his will, which he intended to donate to Agudama orphanage
foundation. Before he could take further step, he transited to glory.
Answer the following questions:

QUESTION 1.
a. i. Identify the type of will sought to be made in this scenario and
distinguish it with similar transaction not specifically mention
herein.
ANSWER:
The type of will at play in the scenario is formal Will
Distinction between a Will and similar transactions
WILL VS TRUST
 A will becomes operational only after the testator’s (the person
who writes the will) demise. Contrarily, a trust comes into effect
immediately upon its creation.
 A will, often considered the cornerstone of any estate plan, is a
legally binding document stipulating how a person’s assets
should be divided upon their death. It is a direct and simple way
for individuals to express their posthumous wishes concerning
their estate. The will appoints an executor who is responsible for
ensuring that the distribution of assets aligns with the testator’s
directives.; While on the contrary, a trust provides more
advanced and flexible control over the distribution of assets. A
trust can outline specific conditions regarding when, how, and to
whom the assets will be disbursed.
 The trustee is mandated to administer the trust, which involves
managing the assets and overseeing the distribution process.
This role is more active and continuous than that of an executor
in a will, as a trustee can be involved in asset management for
years, or even decades, depending on the terms of the trust.

WILL VS GIFT
 Will is document by which a person expresses his wishes with
regard to his properties (both movable and immovable) and
the said wishes are to be acted upon only after the death of
the person making the Will. While a Deed of Gift is a
document by which a person gifts his property to some other
person while he is alive.
 Will once made can be changed or revoked any number of
times and as long as the testator is alive. For Deed of Gift,
 once executed cannot be revoked. The person to whom the
gift is bestowed by the gift deed becomes the absolute owner.
 Will comes into effect only after the death of the testator;
while a gift comes into effect the very day it is made.
 In gift, rent coming from the property will not be taxed. This is unlike a will.

Will vs Nominations:
 Nominations is where a person appoints another to act on his behalf for his interest

Will vs settlement intervivos

Settlement inter vivos is settlement made while the person is alive. It is by deed if settlement
from one living person to another. However for will it takes effect only when the person is
dead.

Will vs DMC(donatio Morti cause)

DMC is a gift made when a person is in contemplation of imminent death. However it will not
take effect until he dies as if he recovers , the gift will fail. Will is not always made in
contemplation of imminent death.

ii. Briefly explain the basic features of a will.

 A will must be in writing. It need not take any special form
– Repington v Holland
 It must indicate the intentions of the testator. Any will
made which does not reflect the through intention and
wishes of the testator is likely to be challenged and may be
set aside by the court. Hence the need to read over the will
to the testator after instructions have been put down into
writing.
 It is testamentary. That is, it comes into effect after the
death of the testator and not during his lifetime. This
means, in essence, that as long as the testator is living, the
will cannot be enforced.
 It is ambulatory. This means that a will is subject to
change, alteration or revocation while the testator is still
alive
 It disposes of property of the testator to named
beneficiaries in the will
 It appoints personal representatives who administer and
manage the property in the will on behalf of the
 beneficiaries, pending when title over the property is
vested on the beneficiaries.

iii. Enumerate the merits and demerit of Mr Tonye disposing

his property via his will as against other similar method.
ADVANTAGES:
 He has can make a choice of Executor(s) and beneficiaries
 He is is at liberty to distribute his property to chosen
beneficiaries
 He may also transfer his property to charity
 Taking maximum advantage of marital deduction that
allows spouses to transfer unlimited amount of assets to
each other (during their lifetime or at death) with no tax
on transfers
 Directing source of property to pay death taxes
 He may use it for designating guardian for minor
children
 It is a potent way of making provisions for the wellbeing
of the testator’s dependents
 It disposes customary rule of intestacy

DISADVANTAGES:
 A will only controls the assets that are titled in testator’s
(decedent) name. It does not control assets that are
titled in joint ownership and go to testator’s spouse or
another joint owner when he/she dies.
 A will does not control assets with beneficiary
designations, like retirement benefits, life insurance
policies or annuity contracts.
 So many formalities are involved in disposition of
properties by will which failure to comply with the laid
down requirements may result in failure of the will
which would have the effect of intestacy.
 It is a bit expensive
 The process of obtaining probate can also delay the will

Question B.
Comment on the testamentary capacity of Mr. Tonye disposing his properties under the relevant Wills
Law. Will your answer be different assuming Ike is the testator in the said will?

ANSWER:

Mr Tonye has the testamentary capacity to make his will. Testamentary capacity is a testator having the
requisite legal age and mental capacity to make a will.

Under S.7 of the Wills Act, 1837, a person who has attained 21 years of age can make a will. As Mr Tonye
is in his 90s, he has the requisite legal age to make a will.

A testator must also possess a sound disposing mind at the time he gave instructions for the drafting of
the will and at the time of executing the will, Johnson v Maja (1951) 13 W.A.C.A. 290. The test of mental
capacity as laid down in Banks v Goodfellow (1869-70) L.R. 5 Q.B. 549 is as follows:

a. The testator must understand the nature of the act of making a will and its effects.

b. The testator must know the extent of his property that he wants to dispose of.

c. The testator must have a recollection of the persons who are the object of his bounty.

d. The manner of distribution of his property must be rational.

Proof of mental capacity can be evidenced by:

a. Due execution by the testator.

b. Voluntariness of the testator

c. Attestation by two witnesses at the same time. See Adebajo v Adebajo (1973) 4 S.C. 37.

In addition to been of age and having mental capacity, a testator must also possess animus testandi (the
intention to make a will and know and approve of the contents of the will to make a valid will, see Amu v
Amu (2000) 7 NWLR (Pt. 663) 164. Testamentary intention is not dislodged by old age. Therefore, Mr
Tonye can be said to have testamentary capacity as he was of age and voluntarily made and duly
executed the will in the presence of witnesses at the time of making the will.

ii) Yes. Ike is sixteen years of age and can not make a valid will as he has not attained the age of 21 years,
S.7 Wills Act and also does not fall under the category of persons that may make a privileged will
(soldiers in actual military service, mariners or seamen at sea, S.11 Wills Act).

QUESTION C.

i. Assuming Mrs. Perere and her children have challenge the will on the ground that Mr. Tonye made his
disposition not as a free agent but, coaxed by the duo (Ike and Jemima), succinctly advise them on the
success or otherwise of this action, citing relevant authorities.
ANSWER:

i. Coersion /undue influence may vitiate the validity of a will.

However persuasion or putting pressure is not undue influence as it's different from coersion.

Acts that may constitute undue influence as listed in the case of Hall v. Hall are

1. Violence, threat, intimidation that subdues the will of the testator

2. Actions exerted on the fears or hopes or emotions of the testator so as to drive him to make the will
in a particular form

3. Any importunity or threat which the testator cannot resist.

Hence where there is element of coercion, the will , will be vitiated. And the action will succeed.

However in the scenario, there is no undue influence, and as such the matter will not succeed. Maja v.
Johnson

C (ii). Assuming Ike and Jemima engaged your service to defend above action, briefly explain the method
of proving the validity of the said will.

ANSWER:

Ways of proving validity of a will.

1. Common form(non contentious): Where there is no proper attestation clause or the judge has any
doubt as to the due execution of a will or where the testator is an illiterate, or a blind person, the proof
of validity is by the use of AFFIDAVIT (sets out the manner in which the will was read or interpreted to
the testator and the manner in which he signified that he understood & approved of its content) Re
Geale.

2. Solemn form (contentious): Burden of proof lies on the PROPOUNDER of the Will though it may shift
to the CHALLENGER where the propounde discharges the burden.

Usually by:

A. Proof of Due Execution: Section 168 (1) Evidence Act (Presumption of due execution) Omnia prae
sumuntur rita esse acta (everything is presumed okay which looks okay) For this presumption to be
invoked, the will

i) must be regular on its face ie it must have been written and signed by the testator

ii) Have proper attestation clause Nelson v. Akofiranmi (supra)

B. Positive affirmative evidence: Oral and Documentary evidence is admissible:

i. Statements at the time of instruction & execution

ii. Witnesses (light weight/ unless corroborated)

iii. Evidence of conduct before & after making the will. Maja v Johnson (supra)

iv. Evidence of general habits and course of life of the testator

v. Medical evidence by a doctor who have attended to the testator in the past (must be credible)
Adebajo v. Adebajo (supra)

Question D

i. Assuming Mr. Tonye’s condition is worsened by virtual impairment, can he make a valid will?

ANSWER:

YES. Mr Tonye being virtually impaired does not stop him from making a valid will, provided that he has
Testamentary intentions (Animus Testandi), And a blind jurat was inserted in the Will. See OKELOLA v.
BOYLE.

ii. Assuming Mr. Karimu and Mr. Lagbaja suffered same virtual impairment, can they validly attest to the
will of Mr. Tonye.

NO. Mr Karinmu and Mr lagbaja can’t validly attest to the Will of MR Tonye because a virtually impaired
person by nature of attestation cannot attest a will.

iii. Comment on the legal effect of the gift disposed in paragraphs 5 and 6 of
the will, assuming Mrs. Perere and Pelumi are the only witnesses to the will.
According to section 15 of the Wills Act a beneficiary of a Will should not Attest the Execution of a Will
by a testator. An attestation by a beneficiary has the consequence of causing the failure of the gift to the
beneficiary, in order to avoid being held liable for negligence the solicitor should advise against it.
According to the scenario the gift disposed in paragraph 5 and 6 of the Will may be deemed Invalid,
since Mrs Perere and Pelunmi are the only witnesses to the Will.

Question E.

Assuming Mr. Tonye is still alive, advise him on the way and manner he could disposes his shares at
Dangote Cement Plc to Agudama orphanage foundation, which he earlier omitted from his will.

ANSWER:

Mr Tonye could dispose his shares at Dangote Cement plc which he earlier omitted from his will to
Agudama Orphanage foundation by adding a codicil to the will.
Question F

(i). Comment on the propriety or otherwise of Mr. Tonye’s will made in Ijaw language.

Mr Tonye's will is still valid regardless of it been made in Mr Tonye's native language as long as an
illiterate Jurat is included in the Will document and it has proved that all the will was read and explain to
the testator (Mr Tonye).

F (ii). Briefly discuss the requirement of a valid will in the light of Mr. Tonye’s will.

 It is testamentary,that is ,it speaks after the death of the testator.

 It's Ambulatory which means that it is capable of being changed and revoked during the lifetime
of the testator.
 It's voluntary which means that it must be independent and freely made without pressure and
undue influence from other persons.
 It is made,signed and witnessed according to law.
 It identifies the property and names the beneficiaries of the gifts in the Will.

Question G

(i). Comment briefly on the ethical conduct of Ade in the above scenario if any.

ANSWER:

Rule 22 of the Rules of Professional Conduct provides that a lawyer shall not call at client’s house to take
instructions except in special circumstances or some other urgent reason. This is to say that Ade acted
against the professional conduct as the conditions of Mr Tonye does not fall among the exceptions to
the rule.

(ii). Itemize five ethical values which Ade must exhibit in the discharge of his duty to Mr. Tonye.

ANSWER:

ETHICAL VALUES THAT ADE MUST EXHIBIT:

1. Dedication to the client’s work- R14 RPC

2. Acting within the bounds of law- R15 RPC

3. Dealing with client’s property- R23 RPC

4. Acting competently in drafting the Will and Codicil- R16 RPC

5. Conflict with personal interests- R.17 RPC.