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WHERE WILL IS CHALLENGED, PROPOUNDER IS SHOW REGULARITY

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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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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

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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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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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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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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 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.”

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