Judiciary-Poetry-Logo
JPoetry

AN EXECUTOR NEED NOT BE EXPRESSLY APPOINTED; FUNCTION BY TENOR OF WILL DETERMINES

Reach more audience. Place advert here.

Dictum

I think it is trite that where a Testator fails to nominate a person to be his executor, any person who upon the terms of the Will has been appointed to perform the essential duties of an executor, is called as executor according to the tenor of the Will and is entitled to a grant of probate. Also where it can be implied from the Will that a person appointed a trustee is required, for instance to pay the debts of the testator, take charge of his funeral and/or generally, administer the Will, though not expressly appointed an Executor, he can be implied to be so endowed. A reasonable construction of a Will can confirm if indeed any person(s) have been appointed to perform the essential duties of an executor. This will be a clear indication that the duties which a person is asked to perform, in the absence of his being expressly named in the Will as Executor, is the determinant of his status as an executor according to tenor. See Halsbury’s Laws of England 4th Edition vol.17; Dr. Kole Abayomi SAN: Wills Law and Practice (2004) P. 129.

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

Was this dictum helpful?

SHARE ON

BURDEN OF PROVING VALID EXECUTION OF WILL LIES ON PROPOUNDER

Rimmer J summed up the matter as follows in Goode, Carapeto v Goode (2002) WTLR 801 at 841: “The burden of proving that a testator knew and approved of the contents of his will lies on the party propounding the will. In the ordinary course, the burden will be discharged by proving the due execution of the will and that the testator had testamentary capacity. Where, however, the will was prepared in circumstances exciting suspicion something more may be required from those propounding the will by way of proof of knowledge and approval of its contents. A relevant standard of proof is, however, simply by reference to that balance of probability.”

Was this dictum helpful?

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

Was this dictum helpful?

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

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

Was this dictum helpful?

IF A WILL IS CHALLENGED, IT IS THE PROPOUNDER TO PROVE 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 N.W.L.R. (pt. 715) 304, Okelola vs Boyle (1998) 2 N.W.L.R. (pt. 539) 533. Amu vs. Amu (2007) 7 N.W.L.R. (pt. 663) 164.

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

Was this dictum helpful?

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.”

Was this dictum helpful?

A BENEFICIARY CAN CHOOSE TO RENOUNCE GIFT GIVEN IN A WILL

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)

Was this dictum helpful?

Load More
No more related dictum to show.

Click the icons to like, follow, and join JPoetry

Facebook Twitter Whatsapp Telegram

Humongouz Empire

© 2025

designed by Humongouz Ztudio.

TO – 2250 | UO – 5 | GO – 2044 | BO – 201

External link(s)

BOOK: First 2-years as a Law Student: Experiences and Lessons.