Truth be told, Wills and Testament can be challenged, at least that is the part that Nollywood usually gets right. There is sometimes that individual in a family that feels cheated or left out in a Will. An ex-wife, an estranged child, some relative somewhere. The law allows such a person to issue a Caveat. A Caveat is like a warning to the Probate Registrar to stop the perfection of the Will. It is used to register the grievance of the person.
Some of the grounds used to challenge a Testator’s Will in Court are:
- The mental health of the deceased.
- Proof of Undue Influence
- Restrictions on Testamentary Freedom by Religion, Custom, and the Law.
- Reasonable Financial provision.
The mental health of the deceased: That is more reason the Testator must be of sound mind, and if necessary, get a medical practitioner to attest to the state of mind of the Testator as at the time he was writing the Will. This can be written on the Will.
Undue influence: This is saying that the Testator was induced by someone or something when writing the Will, and this affected his state of mind when writing the Will. Let us take an elderly man (like age 60) who was married with three kids, divorces his wife to marry a young lady of say 30. If after his death, his Will shows to have bequeathed (given) most of his properties, if not all to his new wife, his children of the first marriage can claim that their father was unduly influenced. We also have situations of people bequeathing their properties to people who could be said to have a certain influence over time, for example, spiritual influence, traditional influence, etc. that the Testator would ordinarily not have bequeathed anything to. Such can be challenged by family and friends.
On religious grounds: Ordinarily, a Testator ought to have the freedom to dispose of his properties as he/she pleases without any form of hindrance or obstacle, but over the years it has been held that this said freedom may create a hardship on certain individuals (like blood relatives and other people who naturally depend on the Testator for survival). Therefore, the law has placed quite a number of restrictions on the testamentary freedom of testators. One such restriction is the religion of the testator. To be precise, Islam. Yes, there are certain things that a practicing Moslem cannot do regardless of his testamentary freedom. By virtue of the Wills Laws of various states in Nigeria, “the general provisions of the Wills Act or Law does not apply to the Will of a person who immediately before his death was subject to Islamic Law”.
This simply means that if our friend Mr. Jide was a Muslim during his lifetime, he cannot depose his properties in a manner that is not in accordance with the tenants of Islam. Such a Will, if challenged in Court would be declared void. You have to note that once the testator is known to have accepted Islam as his/her religion, this law applies to him, it doesn’t matter if he adhered strictly to the dictates of Islam. When I was in law school, my lecturers told us of a case that came from Kwara state, where the deceased who was a Muslim had bequeathed most of his properties to his last wife. The Will was challenged on the ground that the deceased being a Muslim, could not have made such a Will. The last wife through her lawyer informed the Court that although her husband was a Muslim, he did not subject himself to Islamic Law, for example, he drank and sold alcohol. The Court held that having declared that he was a Muslim, he subjected himself to the Wills of Kwara State (which upheld the Islamic tenants as regards Will writing), this was regardless of his erroneous belief.
However, if Mr. Jide is from a state in Nigeria in which the Islamic Law restriction is not contained in their Laws ( e,g some Eastern States, Lagos State, etc) then his testamentary freedom will not be restricted even if he is a practicing Muslim. This simply means that you have to know what Law is applicable in your state.
Another point worthy of note is that for the Islamic Law restriction to be applicable to Mr. Jide, he must have been a Muslim before he died. So, if he was a Muslim all his life and towards the end of his life, he converts to another religion, the Islamic Law will not be applicable to his Will. On the other hand, if he was a non-Muslim all his life, and a few months before his death he converts to Islam to the knowledge of everyone, the Islamic Law will apply to his Will.
