IMPLICATIONS OF STATUTORY AND CULTURAL RESTRICTIONS OF TESTAMENTARY FREEDOM ON VALIDITY OF WILLS

Abstract

Adult persons had right and absolute freedom to bequeath or devise their properties to persons or institutions of their choice as they wished in Wills without let or hindrance. They could go to the extent of disinheriting family members and dependants. That was the position under the common law of England and the Wills Act of 1837. The hardship occasioned on family members and dependants of testators and testatrixes led to enacting local Wills Laws in Nigeria with provisos qualifying the absolute testamentary freedom of section 3 of the Wills Act 1837. This paper seeks to examine the effects of testamentary restrictions on validity of Wills. In other words, it examines the legal consequences failure to compliance with the restrictions placed on the freedom of individuals to make devises or legacies in Wills. In doing this, both doctrinal and empirical methods of research were used in collating materials, principally, statutes, judicial authorities, learned textbooks and journals; interviews and practical experiences based on cultural practices. These were critically analysed, compared and contrasted where appropriate. The paper concludes that statutes, customs, and religion restrict testamentary freedom of individuals to give out their properties in Wills as they choose. The aim is to ensure that the family members and other dependants of testators or testatrixes are not denied provisions in their Wills and to ensure that the Wills do not offend customary and religious rules of succession. Wherever these statutory, cultural and Islamic restrictions on testamentary freedom are violated, the net effect is not to impugn the whole Will but the devises or legacies offending the rules are affected, and therefore, made null. However, the paper observes that the restrictions are not generally adequate or non-existent in some States. The study proffers some key recommendations.