July 2026
In Nigeria, estate planning [especially the writing of a Will] is frequently met with discomfort due to a pervasive belief which characterizes the drafting of a Will as an invitation to untimely death or an admission of failing health.
However, in legal practice, wills are not seen as an anticipation of early mortality, but as an instrument of asset preservation and family stability. To die ‘testate’ simply means to pass away leaving behind a validly executed Will. It represents the ultimate exercise of autonomy, enabling an individual to extend their protective voice over their family and hard-earned assets far beyond their lifetime. This article seeks to highlight the importance of dying testate in Nigeria and ancillary legal considerations.
A will is a testamentary document or instrument voluntarily made and executed in accordance with the law by a testator possessing testamentary capacity wherein he/she disposes of his/her property and give further instructions to be carried out after their death as they deem fit (see Okelola v. Boyle).
The general features of a valid will are that it must be in writing and executed strictly in compliance with applicable statutory laws. Furthermore, it is inherently testamentary and ambulatory, meaning it only takes effect upon the testator’s death and remains revocable or subject to change during their lifetime. To be legally binding, the will must be made entirely voluntarily, the testator must possess the requisite testamentary capacity, it must dispose of a valid gift or property, and it must clearly identify the intended beneficiaries.
On the other hand, a codicil is otherwise known as a miniature or supplemental Will attached to a previous valid will. Its validity depends on the existence of a valid will. Where there is a codicil to a Will, the Will cannot be read in full without the codicil. It is typically used to make amendments to a will by the testator.
Dying testate elevates an estate out of the default legal defaults and places control squarely in the hands of the testator. Generally speaking, the advantages of a will include:
A Will is highly vulnerable to litigation if it suffers from technical defects or fails to strictly comply with statutory requirements. To withstand validity challenges at the High Court, the document must be meticulously drafted in adherence to a multi-layered legal framework. In Nigeria, testamentary disposition is primarily governed by the Wills Act 1837 and the Wills Act (Amendment) Act 1852 [both statutes of general application] alongside the specific Wills Laws enacted by the respective states.
Beyond the above, several ancillary laws introduce critical provisions that can impact a Will’s validity, administration, or probate procedures. For instance, the Marriage Act contains provisions that can automatically revoke a prior Will upon a lawful marriage, while the Armed Forces Act creates exceptions by permitting less stringent rules for “privileged Wills” made by military personnel on active service.
The non-negotiable elements of a will include:
Testamentary freedom in Nigeria is not absolute; it is bound by powerful statutory and cultural limitations that may vary by geography, religion or ethnicity.
Ultimately, a valid Will represents a profound exercise of personal autonomy and serves as an enduring shield for a testator’s family and legacy. By engaging an experienced legal practitioner to structure assets, ensure strict statutory compliance, and formally lodge the document at the High Court Probate Registry, a testator effectively secures their estate against administrative chaos and potential family disputes.
Because life is dynamic, a Will must be treated like a living document. It should be reviewed periodically and updated through codicils to reflect milestones such as new marriages, births, or newly acquired properties. Ensuring clear testamentary directives during a testator’s lifetime prevents costly legal battles after their demise.
But what happens when there is no Will left behind? In Part 2 of our Legal Insights Series: Estate Planning in Nigeria, we will unpack the legalities and realities of dying intestate in Nigeria.
