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ONCE PROPOUNDER OF WILL PROVES REGULARITY, ONUS MOVES TO CHALLENGER

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

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

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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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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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ALTERATION BEFORE OR AFTER WILL IS IMMATERIAL AS FAR WILLS LAW IS COMPLIED WITH

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

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