The Concept of Wills in Nigeria: Reflections on the Freedom and Limits of Testamentary Power

Life is valued, living each day is an opportunity that we often take for granted, and the thought of leaving this world is appalling, this fear alone makes many shy away from the reality of death. However, death is inevitable and comes without a signal, how or when a person departs this world is only known to Allah, the All-knowing, all wise. We have to make sure that we are prepared everyday to join the hereafter, one of such preparations is the writing of a valid will because the responsibility we are assuming in our life time will become a difficult task in our absence.it is our duty to leave clear instructions as to how such task and responsibilities will be dealt with on our demise. In order to prevent family destructions and wrangling after his demise, the testator must ensure his wishes are clearly and definitely expressed in a valid and enforceable will strictly in compliance with S 9 of the wills Act of 1837 and the wills amendment Act of 1852. Islamic law does not require strict formalities for the execution of a will, it is sufficient that the intention of the testator is manifestly clear. Under statutory law according to the wills Act of 1837 a testator has absolute testamentary freedom, under Islamic law and customary law, a testator’s power to dispose of his will is curtailed by law. This paper examines the concept of wills under statutory law, Islamic law and customary law and concludes that complete freedom is the exception rather than the rule and that a will under Islamic law can be legitimately accommodated and practically implemented within existing statutory laws, so far as they are compatible with the principles of Islamic law. Under customary law a testator is restricted to dispose of properties subject to customary law but has the capacity to make a will under the wills Act.