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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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
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
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.”
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.”
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
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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