Probate & Letters of Administration
- PART I: Wills & Codicils III - Restrictions on Testamentary Freedom -
General Rule of Testamentary Freedom - Banks v Goodfellow; Adesubokan v Yunusa
Banks v Goodfellow
A person at all times has the right to make a Will and give properties to any person he desires, and may even deprive blood relatives of his properties without question. The general rule under the Wills Act is that a testator can freely dispose his properties without hindrances by statute, custom, or religion.
3 Restrictions on Testamentary Freedom
- Statutory limitation under the Wills Act/Law;
- Customary law restrictions;
- Islamic law restrictions.
1. Statutory Limitation - Reasonable Financial Provision
S2 Wills Law Lagos State
Where a person dies survived by:
- Wife/wives or husband of the deceased;
- Child of the deceased,
that person may apply for an order on the ground that disposition by the Will is not reasonable financial provision.
"Reasonable financial provision" for wife, husband or child = such as would be reasonable in the circumstances whether for maintenance or not.
Wider Categories - Kaduna, Abia, Oyo
Under S27 Kaduna Wills Law; S4 Abia Wills Law; S4 Oyo Wills Law, persons who can apply also include the parent, brother or sister who immediately before the death was wholly or partly supported by the deceased.
Application Procedure - S2(3)
- Made to High Court within 6 months from grant of probate (NOT from death of testator);
- Application only where Will failed to make reasonable provision.
Re Coventry; Re Dennis
In Re Coventry - provision is NOT intended to keep applicant above the “breadline” but to maintain in a manner suitable to circumstances.
In Re Dennis - applicant applied for settlement of taxes but denied.
Test: Reasonable financial provision is determined OBJECTIVELY from the court’s perspective, NOT subjectively from the deceased’s point of view.
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