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WHERE DISPUTE AS TO A WILL, BURDEN OF PROOF LIES ON THOSE WHO ARE SEEKING TO PROPOUND IT

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The Appellants have argued in their brief that the burden of proof rested on the Respondents who are the persons propounding the Will before it would shift to them. This is correct as it accords with the position of the law. The apex court in Okelola v. Boyle (1998) 2 N.W.L.R. (pt.539) 533 at 547-549 per Ogundare, JSC (as he then was) quoted with approval the decision in Johnson & Anor v. Maja & Ors (1951) 13 WACA 290 at 292 as follows: “Where there is a dispute as to a Will, those who propound it must clearly show by evidence that prima facie, all is in order: that is to say, that the testator had the necessary mental capacity, and was a free agent. Once they have satisfied the court, prima facie, it seems to me that the burden is then cast upon those who attack the Will, and that they are required to substantiate by evidence the allegation they have made as to lack of capacity, undue influence and so forth”.

— J.I. Okoro, JCA. Mudasiru & Ors. v Abdullahi & Ors. (2011) – CA/L/58/2010

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ALTERATION BEFORE OR AFTER WILL IS IMMATERIAL AS FAR WILLS LAW IS COMPLIED WITH

Whether the alteration were made before or after the will was executed in this particular case, the truth is that it (ie., the alterations) complied with section 14 of the Wills Law of Lagos state (supra) Since the Testator initialed all alterations.

— J.I. Okoro, JCA. Mudasiru & Ors. v Abdullahi & Ors. (2011) – CA/L/58/2010

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WHERE DISPUTE AS TO WILL, ONUS IS ON PROPOUNDER OF WILL

Amu v Amu (2007) 7 NWLR (Pt.663) 164. At page 164, 170-171, and 174 of the report Aderemi J.C.A (as he then was) said as follows:- “Where there is a dispute as to a will, those who propounded it must clearly show by evidence that, prima facie, all is in order, that is to say that there has been due execution and that the testator had the necessary mental capacity, and was a free agent. Once they have satisfied the court, prima facie, as to these matters, it seems to me that the burden is then cast upon those who attack the will and that they are required to substantiate by evidence the allegation they have made as to lack of capacity, undue influence, and so forth. That it is clear to me, must be their responsibility and nothing can relieve them of it; it is not only a rule of common sense but a rule of law, as appears from numerous authorities.”

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ANYWHERE THE SIGNATURE APPEARS IN A WILL, IS VALID; POSITION OF SIGNATURE IS IMMATERIAL

As regards the contention that failure of the Testator to sign the Will at the right place invalidates the Will, I wish to refer to Section 4(1)(d) of the Wills Law (Supra) wherein the concluding part of the section states: “… but no form of attestation or publication shall be necessary”. Section 4 of Wills Law of Lagos State is in pari material with Section 9 of the English Administration of Justice Act, 1982 and the Authors of Williams on Wills at page 95 have interpreted the provision to mean ‘that there is no longer any formal requirement that the signature should be at the foot or end of the Will but in so long as it is apparent’ in the face of the Will that the Testator intended by his signature to give effect to the Will. It has been held that a Will is not invalidated simply because the Testator’s signature appears in the Attestation or Testimonium clause. See Re Moores Goods (1901) P.44. Therefore, the submission of counsel for the Appellants that the Will is unsigned because the attestation clause is blank is not tenable in so for as there is a signature by which the Testator intends to give effect to the writing signed as his Will. I think the Testator’s signature in the Will satisfies this requirement.

— J.I. Okoro, JCA. Mudasiru & Ors. v Abdullahi & Ors. (2011) – CA/L/58/2010

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BURDEN OF PROOF TO ESTABLISH GENUINENESS OF WILL IS ON THE PROPOUNDER

It is settled, that the burden of proof of the genuiness and authenticity of a WILL lies on the party propounding it. Where there is a dispute as to a WILL, as in this case, the person who propounds it must clearly show by evidence that prima facie everything is in order that is to say that there has been due execution and that the testator had the necessary mental capacity and was a free agent. Having done that the burden is then cast upon the party who attacked the WILL to substantiate by evidence the allegation he made. This principle of law was very clearly enunciated in the case of Bafunke Johnson & ors vs. Akinola Maja & ors 13 WACA 290,291 – 292 cited supra by Appellants’ counsel where the court held as follows:- “The onus of proof shifts. In the first stage where there is a dispute as to a WILL those who profound it must clearly show by evidence that prima facie all is in order. Thereafter the burden is cast upon those who attacked the WILL and they are required to substantiate by evidence the allegations they have made. The decision must ultimately depend upon a consideration (having regard to the shifting burden of proof), of the value of all the evidence adduced by both parties.” See also Adebajo vs. Adebajo supra, Okelola v. Boyle supra and Egharevba vs. Oruonghae (2001) 11 NWLR (Pt. 724) 318, and Amu v. Amu (2000) 7 NWLR (Pt. 663) 170 -171, 174.

— A.G. Mshelia, JCA. Ize-Iyamu v Alonge & Ors. (2007) – CA/L/184/03

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TESTATOR MUST BE OF SOUND DISPOSING MIND – CRITERIA

Cockburn CJ in Banks v Goodfellow LR 5 QB 549 at 565: “It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural faculties that no insane delusion shall influence his will in disposing of his property and bring about a disposal of which, if the mind had been sound, would not have been made.”

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WHERE WILL IS CHALLENGED, PROPOUNDER IS SHOW REGULARITY

It is incumbent on the propounder of a Will once the Will is being challenged to establish its regularity. But once the court is satisfied prima facie of the regularity of the will, the burden of proof shifts to the party challenging the will. See: Eyo v. Inyang (2001) 8 NWLR (pt 715) 304, Okelola v. Boyle (1998) 2 NWLR (pt 539) 533; Amu v. Amu (2007) 7 NWLR (pt 663) L64, Adebayo v. Adebojo (1973) Alf N.L.R.297 and Johnson & Anor. V. Maja & Ors. 13 WACA 290.

— A.G. Mshelia, JCA. Mudasiru & Ors. v Abdullahi & Ors. (2011) – CA/L/58/2010

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