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A BENEFICIARY CAN CHOOSE TO RENOUNCE GIFT GIVEN IN A WILL

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Dictum

Besides, it is well settled and recognized principle of law that a beneficiary under a will can renounce property devised or bequeathed to him by the will.

— S. Galadima, JCA. Jadesimi & Anor. v. Egbe (2003)

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PROPONENTS OF WILL HAS TO CLEAR THE COURT’S MIND OF SUSPICIOUS CIRCUMSTANCES FIRST

Adebajo v Adebajo (1973) All NLR 297 their Lordships of the apex court per Elias CJN took great care to define quite clearly where the Onus of proof lies in a probate action. At page 312 his Lordship held and laid the onus: “Squarely on the proponents of the will and examined their evidence and their witnesses with jealous scrutiny in order to ensure that all allegations about suspicious circumstances are considered in an attempt to clear the conscience of the court. It was only after satisfying himself that the defence has discharged this onus that the learned Chief Justice returned to examine the challenger’s evidence which he found insufficient to sustain the claim that the deceased did not at the time of making the will know and approve its contents.”

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ONCE PROPOUNDER OF WILL PROVES REGULARITY, ONUS MOVES TO CHALLENGER

In Adam vs. Ikhano (1988) 4 NWLR (Pt. 89) 478 it was held that where there is a dispute as to the validity of a WILL, the primary onus of proof is on the party who propounds it to show clearly that prima facie it is duly executed. Once the primary onus is discharged, the secondary onus of proof of the allegation that the WILL is not properly executed or that it is tainted with fraud or forgery shifts unto the party challenging its proper execution to substantiate his allegations. See also Omorhirhi vs. Enatevwere (1988) 1 NWLR (Pt. 73) 476 and Okoli vs. 1st Bank (1986) 5 NWLR (Pt. 46) 1052.

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WHO IS AN EXECUTOR?

It has to be noted that an Executor(s) is a person appointed by the Testator in the Will to administer the property of the Testator and to carry into effect the provisions of the Will.

— 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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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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ISSUES RAISED ON PROBATE PROCEEDING NOT TOUCHING ON PROBATE SHOULD – BURDEN

With the plaintiff having introduced new issues over and above the initial challenge on the will Exhibit B, her claim was no longer within the ambit of the general rule as laid down in the case of Adebajo v Adebajo supra, wherein the onus of proof in a probate action lies on the proponents of the will. The general rule principle enunciated herein is in my humble view subject however to a situational circumstance as it is with the case at hand which serves as an exception thereof.

— C.B. Ogunbiyi, JCA. Ize-Iyamu v Alonge & Ors. (2007) – CA/L/184/03

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