COMPARISON BETWEEN THE PROCEDURE OF MAKING ORAL WILLS IN KENYA, UGANDA, NIGERIA, SOUTH AFRICA, RWANDA AND TANZANIA

By Boaz Kaawe

In the domain of African Probate and Administration laws, the procedure for making an oral will does exist. Many do not know, but it is possible to make an oral will subject to the various laws that the subject countries apply.

 

These are interrogated below with a view to compare, interrogate, inform and educate.

 

KENYA

 

This is governed by the Law of Succession Act Cap 160 Laws of Kenya. Under the Law of Succession Act, Section 8 provides that a will may either be oral or in writing.[1]

 

The formal requirements for an oral will are catered for in Section 9 which provides that:

 

it must be made in the presence of two or more competent witnesses and
It cannot be valid unless the testator dies within three monthsafter it is made.

 

The rationale behind the provision in Section 9(b), (the time stipulation), is that being oral there is a danger that some details may be forgotten or misreported where a longer period is allowed.
The only exception covers persons in active service in the armed forces or merchant marine.  An oral will made by such persons is valid if the persons die in active service notwithstanding that the will was made more than three months before their death.  Such wills are called privileged wills.

 

Kenyan Courts have held that where a deceased person gives instructions regarding the disposal of his assets and the instructions are reduced into writing by the persons recording them such written instructions can amount to an oral will, provided the instructions are given in the presence of two or more persons.

 

In the case of Re Rufus Ngethe Munyua (Deceased) Public Trustee vs. Wambui[2] the deceased gave instructions on the disposal of his properties to his wives and children.  The persons receiving the instructions wrote the instructions on a piece of paper.  The deceased died a few days later.  It was held that the writing disposing the property was an oral will.

 

UGANDA

 

This is governed by the 1995 Constitution of Uganda and the Succession Act cap 162 Law of Uganda.

 

Article 31 (1) of the Constitution provides for the rights of the family and specifies that men and women are entitled to equal rights in marriage, during marriage and at its dissolution.

 

According to section 36, of the Succession act cap 162 of 1906, every person of sound mind and not a minor may by will dispose of his or her property,

 

A married woman may also by will dispose of any property which she could alienate by her own act during her life.

 

A person who is deaf or dumb or blind is not thereby incapacitated for making a will if he or she is able to know what he or she does by it.

 

A person who is ordinarily insane may make a will during an interval in which he or she is of sound mind.

 

The testator must not be a minor. Even though the Succession Act places the age at 21, the 1995 constitution of Uganda recognises those of eighteen (18) years and above as adults.

 

Therefore, the constitution being the supreme law of the country will prevail, and the Court recognises a will made by anyone who is eighteen and above. What is important is that the testator acted voluntarily, consciously and intentionally while making the will.

 

The person making the will should at the time of making it have the intention of making it.

 

There should be a proper disposal of property in the will.

 

There is little or no reliance on customary or religious law of succession in Uganda while making a will. In the case of Abasi Magunda & Anor Vs Sulaiman Senoga & Ors HCCS 663/93, the petitioners in this case petitioned court for a declaration that a will left by a Muslim testator was invalid because the testator was a Muslim who should not have made a will but relied on Sharia Islamic law for succession.   Justice Okello held that the law of succession in Uganda had been codified largely under the Succession Act as amended. Therefore, there was no such thing as customary or religious law of succession.

 

The testator making the will by word of mouth should also declare his/her intention before two witnesses at the same time.

 

NIGERIA

 

This is governed by the 1999 Constitution of Nigeria, The English Wills Act 1837, (which controls the making of wills in the Northern and Eastern parts of the country) The Wills Law, Cap13, which controls making of wills in the western Region of Nigeria 1959), The Wills law of Oyo State 1990 and Wills Law, Cap W4, Laws of Delta State 2006.

 

All the states in the south west and some in the south-south have modified this imported law to suit their local peculiarities in some ways.[3] Some states in the north namely Kwara state and the plateau state have also opted out of the use of the English wills Act.

 

Members of the armed forces have the armed forces decree No. 105 of 1993 for their wills. A will can also be made under Islamic law and customary law[4]

 

In Nigeria, a will can either be oralor written, oral wills being wills made by word of mouth are recognised under the customary or indigenous laws while written wills are governed by law and statutes.

 

Oral wills are valid only in a few states and only in very limited and unusual circumstances.[5]

 

The legal requirement of age varies according to the laws of each state for instance, Lagos state provides for 18 years, in Kaduna state the required age is 18 years( section 6 of the Wills law Kaduna), while that of the Wills Act is 21 years[6]

 

Section 6 of the Wills law Lagos state allows Sea men and mariners (who are not members of the Nigerian navy) being at sea; crew of commercial airlines being in the air to execute their wills even underage, that is under 18 or 21 years.

 

Customary Law embodies customs as practiced by the people which they regard as binding on them. Customary succession should however not be repugnant to principles of natural justice, equity and good conscience. In the case of Ukeje v Ukeje (2014) 11NWLR (Pt 1341) 185SC, the Supreme Court ruling voided the centuries-old Igbo tradition that barred females from becoming beneficiaries of family estates, especially in their towns and villages.  Ruling this Igbo custom as discriminatory and in conflict with Sections 42 (1a and 2) of the 1999 Constitution.

 

In states like the plateau, Bauchi, Kwara, Jigawa, Oyo, a person making a will can dispose off his /her property in any way he/she wants in accordance with the wills law provided that, immediately before his death, he was not subject to Islamic law.

 

Section 2 of the Wills Law of Kaduna avers that it shall be lawful for every person to bequeath or dispose of by his will executed in accordance with the provisions of this law, all property to which he is entitled, either in law or in equity, at the time of his death. Provided that the provisions of this law shall not apply to the will of a person who immediately before his death was subject to Islamic Law.

 

Such was the case in Ajibaiye v. Ajibaiye [2007] ALL FWLR where this restriction came before the Court of Appeal for the first time. In this case, the testator (deceased), a Muslim from Ilorin, made a will under the Wills Act, where he disposed of his properties in a manner not agreeable with the principles of Islamic Law.

 

He added a statement in his will thus: “I also direct and want my estate to be shared in accordance with the English Law and as contained in this will having chosen English Law to guide my transactions and affairs in my life time notwithstanding the fact that I am a Muslim. The will was challenged in court, the reason being that as a Muslim from Ilorin, Kwara State whose Wills Law contained the Islamic Law limitation; the testator could not dispose of his properties as he wished.

 

Under Nigerian Islamic law, a person making a will cannot dispose of more than 1/3 of his property to persons who are not his heirs.

 

In states like Lagos and Abia where the Wills Act applies, the testator has freedom to dispose of his property as he/she wishes.

 

SOUTH AFRICA;

 

This is governed by The Administration of Estates Act 1965, The Wills Act South Africa 1953, The immovable property (removal or modification of Restrictions) Act 1965, The Agricultural Holdings (Transvaal) Registration Act 1919, The Subdivision of Agricultural land Act 1970, The Mineral Act of 1991 and The Trust Property Control Act.

 

The creation of wills is governed under state law. Each state can determine whether or not to accept these types of wills and what restrictions to make around their use and requirements for creating valid wills.

 

Under the Wills Act section 4, every person of the age of sixteen years or more may make a will unless at the time of making the will he is mentally incapable of appreciating the nature and effect of his act, and the burden of proof that he was mentally incapable at the time shall rest on the person alleging the same.

 

Witnesses cannot benefit under a will in the wills Act of 1953. A person who attests the execution of any will or who signs a will in the presence and by direction of the testator or the person who is the spouse of such person claiming under such person or his spouse, shall be incapable of taking any benefit whatsoever under that will.

 

Under section 6, witnesses cannot be nominated as executors; if any person attests the execution of a will or signs a will in the presence and by direction of the testator under which that person or his spouse is nominated as executor, administrator, trustee or guardian, such nomination shall be null and void.

 

For the limited number of jurisdictions that permit oral wills, the elements that are required may vary from one state to the next. Some elements include;

 

Witnesses; whereby the oral will need to be made to someone so that there is someone who can try to carry out the wishes. These witnesses may need to be disinterested meaning that they may need to not stand to inherit anything. There may be a requirement of two, three or more witnesses for the will to be considered.

 

The Wills Act also envisages a competent witness as a person of the age of fourteen years or over whom at the time, he witnesses a will is not incompetent to give evidence in a court of law.

 

The oral will may often only dispose of personal property in distinction of real property. Also, the state may have a maximum value that each property or the aggregate of all property can go up to.

 

Some states only recognize the use of oral wills in special circumstances, often in dangerous situations when there may not be an adequate or reasonable alternative. For example, some jurisdictions allow for an oral will if the testator is a member of the armed forces and is on active duty or in war or armed conflict.

 

Jurisdictions may also allow for oral wills if the individual works in conjunction or by accompaniment of the armed forces during war or in active duty of if he or she is a mariner at sea.[7]

 

Under South African law, testamentary freedom is not absolute since it is limited by several statutes[8] For example, under Section 3 of the Immovable Property (Removal or Modification of Restrictions) Act 1965, the Courts can modify a testator’s directions as to the disposal of immovable property.

 

The testator’s power to subdivide agricultural land is also restricted by the Agricultural Holdings (Transvaal) Registration Act 1919 (Section 5) and the Subdivision of Agricultural Land Act 1970 (Sections 3, 4 and 5).

 

The Mineral Act of 1991 also limits the division of any mineral right among two or more persons into undivided shares or increasing the number of holders of undivided shares in a mineral right whether by will or intestacy.

 

Similarly, Section 13 of the Trust Property Control Act gives the High Court the power to vary provisions of trust instruments including testamentary trusts that have conditions containing elements of racial discrimination.

 

RWANDA

 

This is governed by The Rwandan Constitution of 2003, The Succession Law of 1999, The Rwandan Civil Code and Law N 22/99 of 12/11/1999 to supplement book/ of the civil code and to institute part five regarding matrimonial regimes, liberalities and successions.

 

It is eminent that Succession law in Rwanda has come under the influence in many respects of Belgian law and Canon law. [9]

 

Article 57 of the law N 22/99 of 12/11/1999 (to supplement book/ of the civil code and to institute part five regarding matrimonial regimes, liberalities and successions), provides that the testament can be oral, holographic or authentic.

 

Article 61 of the law N 22/99 of 12/11/1999 defines an oral testament as one made by the testatrix in the presence of all or some of the rightful heirs who cannot be disinherited and in the presence of at least two witnesses of major age.

 

The law governing matrimonial regimes, donations and successions (article 65 of the matrimonial and succession law) provides the procedure for making wills in Rwanda whereby it states that a will is either authentic or private, however;

 

Under the same article, a will is considered authentic if it is made before the notary or the civil registrar of the testator’s place of residence or domicile. Meaning that for an oral will to be made, it has to be made before the notary or civil registrar.

 

Article 69 of the matrimonial – regime and succession law also provides that wills made by a Rwandan residing outside Rwanda when the estate is in Rwanda are governed by the law of the country in which they are made, as to the form. However. a Rwandan may also choose to comply with the forms laid down by the law of his/her country; the Rwandan law, as to the substance and effects.

 

According to Article 70, wills made by a foreign national residing in Rwanda are governed by:

 

The law of the country in which they are made as to the form. However, a foreign national who makes his /her will in Rwanda may choose to comply with the forms laid down by the law of his country of origin.

 

The law of his/her country of origin, as to the substance and effects

 

TANZANIA

 

This is governed by Statutory laws, the Hindu Wills Act 1870, Customary laws, local customary law, Declaration Order No.4 of 1963(GN 436 (1963), Islamic laws and Hindu laws.

 

In Tanzania, oral wills are in most cases under customary law; and are governed by the local customary law (Declaration) Order, 1963. The customary rule applies only in the patriarchal communities which are 80% while matriarchy communities which are 20% in Tanzania mainland are excluded.

 

This was also echoed in Ephrahim v Pastory, the High court characterised restrictions on women’s ability to inherit clan land as ‘oppressive and unjust laws of the past.

 

According to Volume 2 No. 2 December 1988 Tanzania Law Reform Bulletin, p. 56, 2., the Declaration set out in the First, Second and Third schedules … provides that areas which are subject to the jurisdiction of Chunya, Dodoma, Kasulu, Kibondo, Kigoma, Kondoa, Manyoni, Maswa, Mbeya, Mpwapwa, Ngara, Njombe, Shinyanga, Singida, Songea, Ufipa, and Ukerewe District Councils are meant to be binding upon Africans, to whom the Local Customary Law relates.

 

According to this declaration, any person of the age of 18 years and above of sound mind is free to make a will, be it oral or written.[10]

 

On making of a will, the testator is allowed to appoint his own witnesses to such a Will and they must all be present at the same time when the will is made and attest in the presence of each other. Among the witnesses, the wife or wives of the testator staying at home at the time of making of such a will must also be present and attest to the Will.

 

Absence of the wife or wives will render the Will to be defective as stipulated in the 3th schedule of the local customary law (declaration) order (no.4) of 1963.

 

People who are benefiting from the Will are disqualified from becoming witnesses to the Will except the wife or wives of the testator.

 

According to the 3rd schedule of the local customary law (declaration) order (no.4) of 1963, if all the witnesses die before the testator, the Will cannot take effect and the property will be distributed according to the intestate succession rules.

 

According to rule 11 of Local Customary Declaration Order, oral wills must be witnessed by not less than four persons, two clan members and two from elsewhere.[11]

 

A testator has the mandate to change the rules of intestate. But he may not deny his heir’s share of inheritance without reasonable grounds. Such reasons have to include;

 

If the heir has committed adultery with his wife or;
If the heir has tried to kill him, or has assaulted him, or badly injured the person making the will or his mother or
If the heir, without reasonable cause, did not take care of the person making the will at a time of famine or sickness or
If an heir has destroyed the property of a testator, whereby the extent of the damage will be taken into account when estimating his share of the inheritance he or she is thought to deserve or receive.

 

A person who wants to deny an heir his share of inheritance must state clearly in his Will and explain, giving the reasons for denial. An heir who is to be denied of his inheritance share may be given a chance to defend himself in the presence of the testator, or before the clan council.
A person who knew that he was denied his inheritance and who did not take the opportunity to defend himself or herself shall not oppose a Will after the testator dies.

 

If a person who is denied inheritance did not know about it before the testator died, the clan council may listen to him. The council may have the right to accept or reject his claims.

 

If it is found that a person was denied an inheritance in a Will without a reasonable cause, the Will shall become ineffective and the estate shall be distributed according to the rules of intestacy.

 

The clan council shall determine such a matter, but if a person is not satisfied he can appear before a magistrate in a court.

 

A husband can make a Will to his wife so that she can inherit agricultural production or income from his property until she remarries or dies.[12]

 

If the husband has many wives, he may bequest to allow all his wives (not giving to some and denying others), so that they can inherit agricultural production or his property by observing the rules of intestate, until they remarry or die.

 

A husband may make a Will and give his childless widow inheritance of agricultural production or part of the share of property jointly acquired with him which otherwise could have returned to the patriarchal side.

 

A man can make a Will allowing his friend to inherit property or his personal domestic household or part of his inheritance property, but this should not exceed the share given to each real heir.

 

CONCLUSION

 

Every state has various variations when it comes to oral wills depending on the applicable laws, ranging from age requirements to the various beneficiaries. Nigeria for example, there is the Customary Law limitation, the Islamic Law limitation and the limitation relating to the provisions for family members and dependants. South Africa shares only the statutory limitation as to the provision for family members and dependants. The limitation of provisions for family members in this case comes as a charge upon the deceased’s estate. Also, in South Africa, only the spouse is provided for by statute. The child is provided for under the South African common law.

 

[1]http://www.kenyalawresourcecenter.org/2011/07/form-formal-requirements-of-will.html

[2] (1977) KLR 137

[3] https://www.nlii.org/files/How_To_Write_Your_Will_With_Ease.pdf

[4] ibid

[5] https://www.manifieldsolicitors.com/2019/01/15/wills-act-and-the-requirements-under-the-nigerian-law/

[6] https://ibrahimlawfirm.com.ng/2018/03/31/an-overview-on-will-making-in-nigeria/

[7] https://www.hg.org/legal-articles/when-is-an-oral-will-valid-44438

[8] H Corbett, G Hofmeyr and E Kahn, Law of Succession in South Africa, (South Africa: Juta Law, 1980), p. 40.

[9] Family law in Rwanda by Charles Ntampaka on page 16

[10] The law of succession. Dr. R.W.Tenga’s teaching materials by George Kazi

[11] Law of Succession and Trust in Tanzania. Eliud Kitime

[12] Supra note 13