Of Wills and Codicils: Reliefs Available to Dependents After the Demise of a Breadwinner

Everyone can get used to having a support system in their space. We get so used to it that we sometimes, if not most times, forget to learn how to stand without their support, be it material or emotional support. The breadwinner is also sometimes already programmed to be a provider and/or support system, and so they neglect to teach their beneficiaries how to be independent.

Many years back, I remember seeing a television drama about a rich housewife, let’s call her Daisy. She was the real “emi oga”. Her husband, let’s call him Bayo, was a very wealthy oil mogul in his early 30s. He lost his life in a plane crash. After his abrupt and shocking demise, while close friends were consoling his wife in their mansion, they asked rhetorically, “I am sure you have your savings and investments intact… you can fall back on them, don’t worry,  things would not be so bad…”

At this point, the emi oga, with an even more miserable countenance, responded pathetically, “I don’t have anything to myself! Bayo would give me everything I wanted. I never felt the need to save or invest”.

At this point, the emi (spirit) of her friends had left them; they were too weak to say anything further except to respond in loud and shocking unison- “Ha!?”

This article, as the title connotes, is about the reliefs available to dependents upon the loss of a breadwinner, and we will be using Daisy and Bayo as a case study.

Wills

• A Will is a document that contains one’s direct wishes as regards their property and assets, as well as how their dependents should be catered for.

• Failure to prepare a will typically leaves decisions about your estate in the hands of judges, state officials, or distant family relatives, and this, in many cases, causes family strife.
• You can prepare a valid will yourself, but you should have the document witnessed and registered at a state probate registry by a legal practitioner.  This decreases the likelihood of successful challenges later.
• To be completely sure everything is in order, consider having your will prepared and perused by a legal practitioner. I cannot resist the urge to emphasise that similar transactions are a lot easier when you consult and pay your lawyer.

Why You Should Have a Will?

Some people think that only the likes of Bayo- the very wealthy or those with complicated assets need wills. However, there are many good reasons to have a will.

• You can be clear about who gets your assets. You can decide who gets what and how much they get.
• You can keep your assets out of the hands of people you don’t want to have them (like an estranged or a dubious relative).
• You can identify who should care for your children. Without a will, the courts or distant relatives will decide this.
• You can also give off assets as gifts and charitable donations, which can help offset the estate tax, as opposed to leaving such assets to dilapidate.

• Your dependents will have a faster and easier time getting access to your assets. This is very important. The sad truth is that life goes on, and no one seems to care how much grief the dependents are facing. The bills would still be glaring at them, and so the earlier they gain access to those assets, the easier things would be for them.

What is a codicil?

A codicil is a legal document that changes specific provisions of a last will and testament but leaves all the other provisions the same.

For instance, if Bayo had made a Will that instructs that a certain mansion of his, located at Asokoro, Abuja, is bequeathed to Daisy, but he later changes his mind and decides to bequeath same to his first daughter, rather than writing an entirely new will, a codicil will reflect Bayo’s latest intention as regards the Asokoro property.

The general ideology on a codicil is that it comes into play when one desires to make a minor change to a Will, as exemplified above.  A codicil should suffice if one desires to make minor changes like-

• Adding or deleting specific beneficiaries
• Changing who will serve as a Personal Representative- the individual who will be responsible for settling Bayo’s assets, ensuring that all that is stated in the Will is followed through to the last letter.
• Updating the name of a beneficiary or a Personal Representative due to their marriage, relocation, or death, as the case may be.
• If Bayo had made a Will and intends to make a Codicil to include who bequeaths his newly acquired Asokoro property, he would add a codicil in order to include such intention. Bayo will also need to sign it to prove he is the initiator of the Codicil and have two witnesses sign it as well. Then, his lawyer keeps it along with his original Will.
• Bayo should consult with a property and probate lawyer to ensure such is written in a way that is easy to understand.
• If Bayo made a series of a few codicils over the years, he may want to consider consolidating all of his changes into a new Will.
• It will prove helpful to his Personal Representative, who will then have a single document to follow instead of piecing together instructions from four or five separate Codicils.
• It can also help ensure that the probate court will hold that Bayo’s Will is valid;
• So, in an instance where Bayo has over three new instructions as regards a set of newly acquired assets or a change of mind as to who gets an asset, a new Will would be most suitable to clearly depict his final wishes. Rather than having a variety of provisions that might make his intentions seem unclear.

Letters of Administration

This comes into play when the deceased died intestate- that is, he/she died without making a will.

Letters of Administration is an instrument issued by a court or public official, authorizing an administrator to take control of and dispose of the estate of a deceased person.

Let’s go back to the Daisy and Bayo story. Assuming Bayo died intestate (I said earlier that if someone dies intestate, they died without making a Will), the option available to Daisy upon Bayo’s death is to apply to the probate registry for Letters of Administration, alongside other family relatives of Bayo.

This Letter of Administration (more of a document than a letter) would enable Daisy and other appointed Administrators to access Bayo’s assets.

It also announces to Bayo’s banks, his creditors, business partners, and others who are in any way affiliated with his asset the newly appointed persons the Court has placed in charge of the estate.

As earlier pointed out, there is no guarantee that Daisy would be given fair treatment in the distribution of her late husband’s assets because the government and her in-laws are now involved. The government takes about 10% of the entire value of the assets belonging to Bayo; her in-laws are also looking out for themselves. No one really is sensitive to the desires of Daisy, a young widow, but she would most likely get something appreciable at the end of the day, which may not be to Bayo’s taste if he were to conduct the distribution of his assets by himself- Half bread they say, is better than none.

Small Estate Application

This application, as the name connotes, comes into play when there is a monetary asset, not higher than Five Million Naira, belonging to a deceased who died intestate.

Due to the limit on the value of the asset, the Small Estate Application process is meant to be more streamlined than the regular probate process.

To make the Small Estate Application more vivid, let us go back to our sweethearts- Bayo and Daisy- let us assume a number of ruthless and estranged relatives managed to rip Daisy off all of her late husband’s assets, save for a hidden fixed deposit account, containing Four Million, Three Hundred and Thirty-Three Thousand Naira Eighty Nine Kobo Only, opened by Bayo, which he has long forgotten about; but Daisy got wind of, through text message alerts, on the returns on investments, accruing on the said account, Daisy can assess this money through a Small Estate Application.

This Application specifically states the total amount of money in the account and seeks an order of the court requesting that the said sum, as contained in the cited account, be transferred to an account as presented by the Applicant, in this case, Daisy.

The Application also seeks an order from the court permitting the state government to deduct the statutory 5%, which is the cost paid to the probate registrar in conducting his findings and duties.

The Applicant will also attach an affidavit, averring her relationship with the deceased and that she has the consent of other family members to attest to this affidavit.

This Application is usually drafted by a lawyer, who goes further to attach the death certificate of the deceased as well as other necessary documents, and the same is presented before the Court.

The death of a breadwinner is inevitable, but the consequences on dependents can be cushioned if they make wiser choices.