NOTES ON Executorship ACC 317

LECTURE NOTE ON EXECUTORSHIP

LEARNING OBJECTIVES;
At the end of this topic, student should be able to;
a. Understand the meaning of a WILL
b. Understand how a will is to be created and who
is qualified to write a will
c. Clearly understand the types of WILL
d. How a Will can be Revoke and
e. Understand and distinguish between an
Executor and an Administrator.

Notes on Executorship Prepared by Dr. A.S. Alhassan & A.M. Nasir

Email; [email protected]
NOTES ON Executorship ACC 317

On the death of a man/woman, his/her property will pass on to someone else.

The right to own the property left behind by the deceased and exercise
control over it will need to be determined. The way and manner the property
will be distributed will depend on whether or not the deceased left a valid will
or not. The property of the deceased are generally classified into two, namely:
real property and personal property. Where a valid will is in place, the rules
governing testate succession will apply, otherwise, the rules governing
intestate succession will come to play.
Definition of Key Terms
i. Will: A will is a legal declaration, usually in writing, by which a person
names one or more persons to manage his or her estate and provides for
the distribution of his or her property at death. It is also called a testament.
ii. Testator: the person who executes or signs a will; that is, the person whose
will it is. A female testator can also be referred to as a testatrix.
iii. Executor: a person named to administer the estate, generally subject to
the supervision of the probate court, in accordance with the testator's
wishes in the will. In most cases, the testator will nominate an executor in
the will unless that person is unable or unwilling to serve. He is also known
as the Personal Representative. A female executor can be called an
Executrix.
iv. Administrator: person appointed or who petitions to administer an estate
in an intestate succession.
v. Probate: legal process of determining the validity of a will to settle the
estate of a deceased person.
vi. Testate: person who dies having created a will before death.
vii. Intestate: person who has not created a will, or who does not have a valid
will at the time of death.
viii. Codicil: an amendment to a will; or a will that modifies or partially
revokes an existing or earlier will.
ix. Beneficiary: anyone receiving a gift or benefitting from a trust as
stated in a will.
x. Inheritor: a beneficiary in a succession, whether testate or intestate.
xi. Devise: testamentary gift of real property.
xii. Devisee: beneficiary of real property under a will.

Creation of a Valid Will

Any person who is 18 years and above and of a sound mind (having
appropriate mental capacity) can draft his or her own will with or without the

Notes on Executorship Prepared by Dr. A.S. Alhassan & A.M. Nasir

Email; [email protected]
NOTES ON Executorship ACC 317

aid of a lawyer. A person under the age of 18 years can only make a valid will
if he is a soldier or airman under active military service, or a sailor.
The following are requirements to create a valid will:

1. The testator must clearly identify himself as the maker of the will, and that
a will is being made; this is commonly called "publication" of the will, and is
typically satisfied by the words "last will and testament" on the face of the
document.
2. The testator should declare that he revokes all previous wills and codicils.
Otherwise, a subsequent will revokes earlier wills and codicils only to the
extent to which they are inconsistent. However, if a subsequent will is
completely inconsistent with an earlier one, the earlier will is considered
completely revoked by implication.
3. The testator may demonstrate that he has the capacity to dispose of his or
her property ("sound mind"), and does so freely and willingly.
4. The testator must sign and date the will, usually in the presence of at least
two disinterested witnesses (persons who are not beneficiaries). There may
be extra witnesses, these are called "supernumerary" witnesses, if there is a
question as to an interested-party conflict.
5. If witnesses are designated to receive property under the will they are
witnesses to, this has the effect, in many jurisdictions, of either
(i) disallowing them to receive
under the will, or (ii) Invalidating
their status as a witness.
6. The testator's signature must be placed at the end of the will. If this is not
observed, any text following the signature will be ignored, or the entire will
may be invalidated if what comes after the signature is so material that
ignoring it would defeat the testator's intentions.
7. One or more beneficiaries (devisees, legatees) must generally be clearly
stated in the will.

Types of Will
Generally, a will can either be formal or informal.
A formal will is a will that is done in writing (handwritten or typewritten); and is
properly executed (signed by the testator or by his direction in the presence
of two or more witnesses present at the same time. The witnesses attesting to
the will in the presence of the testator).

Notes on Executorship Prepared by Dr. A.S. Alhassan & A.M. Nasir

Email; [email protected]
NOTES ON Executorship ACC 317

An Informal Will is a will that does not conform to the requirements of a formal
will. The Wills Act permits military personnel, and sailors to make informal will.
Wills, depending on whether they are formal or informal, can also include the
following:

a. Nuncupative: this is an oral or dictated will. They are often limited to sailors
or military personnel.
b. Holographic: this is a will written in the handwriting of the testator.
c. Unsolemn will: this is a will in which the executor is unnamed.
d. Will in solemn form: signed by testator and witnesses.
e. Self-proved: this is a will written ‘in solemn form’ with affidavits of subscribing
witnesses to avoid probate.
f. Mystic: this is a will that is sealed until the death of the testator.
g. Reciprocal/Mutual wills: wills made by two or more parties (typically
spouses) that make similar or identical provisions in favour of each other.

Reasons for making a Will

It is desirable to make a will for some of the reasons highlighted below:
a. To make specific provisions for the Testator’s loved ones after demise;
b. To avoid cases of intestacy—a condition wherein a person dies without a
valid Will. Which leaves the estate to be governed by the rules of intestacy
or customary law;
c. To prevent long years of family feud, disagreement and litigation over the
deceased person’s estate;
d. To enable the Testator appoint the persons he desires to be the Executors
of his estate after his demise; and
e. To prevent the Testator’s estate from perishing. This may occur when the
Testator has no relatives or when none of his relatives are aware of the
existence of a particular property.

Revocation of a Will
A will may be revoked in any of the following ways:

i. By a Subsequent Will or Codicil: a codicil is an instrument (document)

executed by the testator for the purpose of adding to or altering a will
previously made by him. Where a new will is made deliberately to set the
previous will aside, it is necessary that it is stated specifically in the new will
that the earlier will is being revoked. If this is not done, the court will

Notes on Executorship Prepared by Dr. A.S. Alhassan & A.M. Nasir

Email; [email protected]
NOTES ON Executorship ACC 317

consider the two wills valid and any inconsistencies between them will be
resolved in favour of the most recent will.
ii. By Physical Destruction: revocation can be done by the physical
destruction (tearing or burning) of a will by the testator, or by some other
person in the presence of the testator (and witnesses) and by his direction.
The destruction must be intentional and not accidental for the revocation
to be valid. If a will is destroyed accidentally or without the testator’s
authority, there is no revocation and another copy of the will can be
admitted for the purpose of grant of probate. But the onus of proof that
the original will was accidentally destroyed rests on the person seeking to
tender a copy.
iii. By a Subsequent Marriage: a subsequent marriage effectively revokes an
existing will as it is assumed that upon marriage a testator will want to
review his/her will. There is an exception however, if the will contains a
statement that it has been made in contemplation of a forthcoming
marriage and the marriage actually takes place. A marriage under
customary law, however, does not revoke a will.

Family Provision
By 1975, the Inheritance (Provision for Family and Dependants) Act was
passed. This Act gave extensive powers to the courts to award reasonable
provision out of a deceased's estate for the maintenance of certain
dependants if the will or intestacy failed to make such provisions for them. The
Act allows claims by close family members and also by persons who were
financially dependent on the deceased when he died.

The dependants who may apply to the court for financial provision out of the

deceased estate include: a. The wife or husband of the deceased;

b. A former wife or husband of the deceased who has not remarried;

c. A child of the deceased;
d. Any adopted child;
e. Any other person who at the time of the death of the deceased was
wholly, or partly being maintained by him.
For an application to be effective in this situation, it must be made within 6
months immediately following the grant of probate or letter of
administration; unless the court at its discretion agrees to an extended
period.

Notes on Executorship Prepared by Dr. A.S. Alhassan & A.M. Nasir

Email; [email protected]
NOTES ON Executorship ACC 317

Probate and Administration

Personal representatives cannot act in respect of a deceased’s estate until
they obtain a grant of probate for executors; or a letter of administration for
administrators (intestate succession/where there is no will). After the testator
has died, a probate proceeding may be initiated in court to determine the
validity of the will or wills that the testator may have created, i.e., which will
satisfy the legal requirements, and to appoint an executor. In most cases,
during probate, at least one witness is called upon to testify or sign a "proof of
witness" affidavit. In some jurisdictions, however, statutes may provide
requirements for a "self-proving" will (must be met during the execution of the
will), in which case witness testimony may be forgone during probate.

If the will is ruled invalid in probate, then inheritance will occur under the laws
of intestacy as if a will were never drafted. Often there is a time limit, usually
30 days, within which a will must be admitted to probate. Usually only an
original will can be admitted to probate – even the most accurate photocopy
will not suffice. However a copy of a will can be admitted if the original was
lost or accidentally destroyed and the validity of the will can be shown to the
court.

Where the application for grant of probate is not opposed, the probate is said
to be “in common form.” However, where there is an objection as to the
validity or authenticity of a will, witnesses will be called and a probate granted
after such proceeding is said to be “in solemn form.”

EXECUTORSHIPS ACCOUNTS

An Executor is a personal representative of deceased person where the

deceased died testate. In other words, an executor is a person who carries
out the instructions of a deceased person as contained in his/her will. The
'executor is not ordinarily entitled to any remuneration except under the
following conditions.

a. There is an express authority in the will.

b. The executor is corporate body in which case there is presumption that

testator expects that normal professional charges will be paid.

c. The court orders the payment of remuneration.

d. There is an agreement between the beneficiaries that remuneration

should be paid.

Notes on Executorship Prepared by Dr. A.S. Alhassan & A.M. Nasir

Email; [email protected]
NOTES ON Executorship ACC 317

e. Where there is legal requirement based on statutes or a judicial trustee is

appointed.

Appointment of Executors

The Appointment of Executors can be made expressly or by implication. An

express appointment of executor arises where the testator named his/her
executor. An implied appointment arises where the testators request some
person to perform acts which are normally performed by an executor e.g.
where the testator stated in his will that "let Mr. Ademesu Zaki establish and
collect my assets, pay off my liabilities and distribute my assets according to
this will. The acts of establishing, collecting, paying of liabilities and distributing
of assets of the deceased are clearly duties performed by executors. A person
nominated by implication to be executor is said to be an executor according
to tenor. Where a person performs the duties of executor without being
expressly appointed or nominated as executor is deemed to be executor de
son tort.

Duties of Executors

1. To bury the deceased

2. To obtain probate: Probate is a legal authority by the court given to the

executor to assume tittle of the property contained in a will. Where a will
contain more than four executors the court will however give recognition to
only first four. The process of obtaining formal legal recognition of the validity
of will is called proof of probate. This process can either be Administrative or
proof in common or judicial or proof in solemn form.

a. Administrative or proof in common form: This does not involve litigation

but merely a conferment of authority on the executors to act as such even
where there is no disagreement as to his appointment as executor.

b. Judicial or proof in solemn form: This is a process whereby an Executor

obtains a formal recognition by judicial means. The proof in solemn form arises
where the validity of the will is in doubt. The proceedings to proof in solemn
form are:

i. By action and all parties interested are expected to appear;

ii. The witnesses to the execution of the Will are examined in open court and
under oath.

Notes on Executorship Prepared by Dr. A.S. Alhassan & A.M. Nasir

Email; [email protected]
NOTES ON Executorship ACC 317

Revocation of Probate

The grant of probate maybe revoked where:

i. A Codicil is found

ii. The testator is found to be alive

iii. Appeal against the will to the higher court is successful

iv. Probate is obtained by fraud ceased possessed at his death

v. The executor fails to obtain in solemn form after obtaining the grant of
probate in common form when called upon to do so.

3. To establish the assets and liabilities of the estate

4. To collect the assets of the estate

5. To deal with Inland Revenue

6. To pay estate administration expense

7. To distribute assets according to the will

8. To pay other liabilities of the deceased

ACCOUNTS

Accounting for the stewardship of executors is an essential part of duties of

the executors.Proper account is critical in this respect as it shows clearly the
records of all transactions.

Executors account must show the:

i. Whole of the property of which the deceased possessed at his death;

ii. Manner in which the property has been administered;

iii. Particulars of debts which have been paid;

iv. Distribution of the residue

Concept of Property

Notes on Executorship Prepared by Dr. A.S. Alhassan & A.M. Nasir

Email; [email protected]
NOTES ON Executorship ACC 317

A will is concerned with the manner in which the affairs of deceased person
are disposed of upon death of the testator. The disposition of the assets and
liabilities of the deceased person is an engaging issue that requires keeping
of true and accurate records by the executors. It is therefore necessary to
highlight what constitutes property or broadly asset of the deceased person.

Property may be defined as assets owned by a person the right to which he

may alienate while alive or left to his executors at his death. Property can be
broadly divided into real or personal.

i. Real property: This shows a person's interest in land other than his right to
a lease hold on land. In order words, Real property consists of freehold
property and building. A gift of real property to a beneficiary is called a
devise. Where there is a devise, the beneficiary is called a devisee. o subject
to the doctrine

ii. Personal property or personal chattel: This shows person's interest in

moveable property and I n leasehold. A disposition of personal property is
called legacy and the beneficiary of a gift of personal property is called
Legatee. Personal property can be further divided into chose in possession
and chose in action.

a. Chose in possession: This is tangible personal property which the owner

can bring under physical control e.g., vehicles, books, furniture etc.

b. Choses of Action: This is a property which cannot be the subject of

physical possession e.g., debts, cheques, stock and shares etc.

Types of Legacies

i. General Legacy: This is a gift of personal property which the testator

describes in general terms e.g. "I give my car to Bello my son" In order words,
a general legacy is a gift of personal property where the particular property
is not specifically identified by the will. General legacy is not subject to the
doctrine of ademption.

ii. Specific Legacy: This is a gift of personal property where the property is
specifically identified by the testator e.g. I give my Volvo car BB565KJA to Bello
my son. Specific Legacy is subject to the doctrine of ademption.

Notes on Executorship Prepared by Dr. A.S. Alhassan & A.M. Nasir

Email; [email protected]
NOTES ON Executorship ACC 317

iii. Demonstrative legacy: This is a gift of a sum of money payable from a

specific account or fund e.g. "I give my son Bello the sum of N100,000 from
UBA account in Keffi". Specific and Demonstrative legacies abate together.

Other terminologies in disposition property

a. Doctrine of Lapse: This is a situation where a beneficiary died before the

Testator except where a son predeceased his father but left behind
grandchild who can assume his place.

b. Doctrine of Abatement: This is a gift of cash where the amount stated in

the will is not up to the available balance as at the time of distribution. The
amount available will be abated or prorated.

c. Doctrine of Ademption: This is a situation where a gift is no longer

available at the time of death of the testator. The gift is said to be adeemed.

d. Residuary clause: This is the remaining property of the testator including

any gift that fails.

Trust Corporations
Rather than name in individuals as executors, a testator may appoint a trust
corporation as the executor of a will. A trust corporation is a company
registered under CAMA 2004 to carry on the business of trusteeship. If a trust
corporation is granted probate, it will normally appoint an officer to carry out
the work.

Advantages of a Trust Corporation

Some of the advantages of appointing a trust corporation as executor
include:
i. wide experience of legal, tax and accountancy requirements;
ii. a corporation cannot die unlike a private/individual executor;
iii. assurance of impartiality: there’s reduced chances of the corporate
executor taking sides in family feuds; and
iv. the cost of administration is likely to be lower

INTESTATE SUCCESSION
Intestacy is the situation where an individual dies without leaving a valid will.
Partial intestacy however occurs where there is a valid will, but the will does
not dispose all of the testator’s property. In cases of intestacy and partial
intestacy, the rules governing intestate succession will apply.

Notes on Executorship Prepared by Dr. A.S. Alhassan & A.M. Nasir

Email; [email protected]
NOTES ON Executorship ACC 317

Intestate Succession under Statute

According to the provisions of the Administration of Estates Law of 1959, the
following will play out in case of intestacy, where the intestate had married
under the Marriage Act:

1. Where the intestate leaves no issues, no parent, and no whole brother or

sister; the residuary estate will be held for the surviving husband or wife
absolutely.
2. Where the intestate leaves issues, the surviving husband or wife shall take
the personal chattels absolutely and in addition the surviving spouse will
receive lump sum of money equivalent to one-third of the residuary estate.
One-third of the residuary estate after deducting the lump sum due to the
surviving spouse shall also be held in trust for the surviving spouse during his
or her life time. The balance will then be distributed equally among the
children or held on statutory trusts for them where they are not yet entitled
to it.
3. Where the intestate leaves no issues, but is survived by parents and whole
blood brothers and sisters; the surviving spouse shall take in addition to the
personal chattels, a lump sum of money equivalent to two-thirds of the
residuary estate. One-half of the residuary estate above after deducting
the lump sum above shall be held in trust for the surviving spouse
absolutely. The other half shall be held in trust for the parent(s) in equal
share absolutely. Where the intestate leaves no parents, the other half shall
be held in trust for the whole blood brothers and sisters of the intestate.
4. Where the intestate leaves no surviving spouse, no issue, no parent, and no
whole blood or sister; the residuary estate shall be held in trust for the half
brothers or sisters of the intestate.
5. Where the intestate leaves no surviving spouse, no issue, no parent, no
whole blood or sister, and no half brother or sister; the residuary estate shall
be held in trust for the grandparents.
6. Where the intestate leaves no surviving spouse, no issue, no parent, and no
whole blood or sister, no half brother or sister and no grandparent, the
residuary estate shall be held in trust for the uncles and aunts of the
intestate being whole blood brother or sister of a parent of the intestate.
7. Where the intestate leaves no surviving spouse, no issue, no parent, and no
whole blood or sister, no half brother or sister, no grandparent, and no
uncle and aunt from whole blood brothers or sisters of a parent; the
residuary estate shall be held in trust for the uncles and aunts of the being
half blood brothers or sisters of a parent of the intestate.

Notes on Executorship Prepared by Dr. A.S. Alhassan & A.M. Nasir

Email; [email protected]
NOTES ON Executorship ACC 317

8. Where the intestate leaves no relation of any of the class mentioned

above, the residuary estate shall belong to the state as ‘bona vacantia’
that is property without owner, in lieu of any right to escheat i.e. in the
absence of any right of reversion.

Notes on Executorship Prepared by Dr. A.S. Alhassan & A.M. Nasir

Email; [email protected]