Wills And Codicil

A will is the expression by a person of wishes he intends to take effect only at his death. It is voluntarily made, executed and witnessed according to law by a testator with sound disposing mind wherein he deposes of his property subject to any limitation imposed by law and wherein he gives other directives as he may deem fit to his executor, who administers his estate in accordance with the wishes manifested in the will.
A codicil is a supplementary will by which a testator adds to, alters or revokes what is contained in the will. A codicil should only be used for a simple purpose. Any involved alteration to the will should be done by a new and properly executed will. Before the death of the testator, a will is revocable and the testator is free as many times over as he wishes to alter, amend or even cancel it by destruction. Until his death, the will is a mere declaration of his intention.
A will must reflect the wishes of the testator. The provision of the will must have been voluntarily made without pressure from any quarters whatsoever. In the famous case of Hall V. Hall (1868) LR IP & D 481; 18 L.T.. 152, Sir J.P Wilde says:
“In a word, a testator may be led but not driven and his will must be the offspring of his own volition and not the record of some else’s. A will induced by the undue influence of a third party is liable to be set aside. It was reported in the case of Hacker V. Newborn 82 E.R 834 that:
“If a man makes his will in sickness by the over-importuning of his wife to the end that he may be quiet, this shall be said to be a will made by constrain and shall not be a good will”.
What actually constitutes undue influence was seen in the case of Hall V. Hall (Supra) when the plaintiff Ann Hall, propounded the will of her deceased husband, John Hall. The defendant, William Hall, the brother of the deceased, pleaded that the will was obtained by the undue influence of the plaintiff. The case was tried by a special jury. The evidence of the defendant was that the testator had made his will solely in consequence of the violence and threats of the plaintiff, that testator for the sake of peace and quiet only yielded to the pressure, and that the will did not express his real testamentary intentions. The jury found that the plea of undue influence was proved and refused to admit the will into probate.
Note that undue influence is not really a question of testamentary capacity but that of a third party influencing unduly the testator in making his will contrary to his wishes. It is easier to put pressure on a sick testator and one with impaired health than on a testator in good and full health. But this should not be construed however to mean that a testator in good health could not be equally vulnerable.

By: Nkechi Bright-Ewere