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
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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
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
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
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
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.”
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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