Drafting for the Household

The will is short and it is entirely valid.

It was properly executed, correctly witnessed, and deposited where it should have been. It appoints his brother as executor. It contains one substantive clause: “I give all my property to my children in equal shares.”

He had nine children. Six are by the woman he married under the Act in 1988. Two are by the woman he lived with in Jos from 2001, whom his family have met and do not discuss. One is a boy his late brother left behind, whom he raised from the age of four and who has used his surname for twenty-one years and has never been adopted.

Every one of those nine people is described, by somebody who loves them, as his child. The will does not say which of them he meant, and he is not available to be asked.

The document did its job. It is the instructions that were missing.

(A constructed illustration. The pattern is ordinary; the persons are not real.)

A valid will and a useful will are not the same document.

A will is ordinarily understood as a disposition: it says who takes what. In a household of the kind this cluster describes it does something else as well, and the second function is frequently more valuable than the first.

It is evidence. It is the only document in which the person at the centre of every question this cluster raises speaks in his own words, after the point at which he can be asked anything. Who his children are. Which household he regarded as his. What he understood the arrangement to be. Whether an omission was an oversight or a decision.

Nine essays in this cluster describe institutions trying to answer those questions from records made for other purposes — school files, hospital cards, the testimony of relations who are parties to the dispute. A will is the one record made for this purpose, by the only person with first-hand knowledge, at a time when nothing was in issue.

The drafting consequence is direct. A will for a household of this kind should be written to be read by a stranger who knows nothing, in a room where everyone else present has an interest in a different answer. Every relationship it relies on should be spelled out rather than assumed, and every choice that will look surprising should be visibly a choice.

One prior point, since everything above assumes it. A will has to be validly executed to be anything at all, and the formal requirements — writing, signature, the presence and attestation of witnesses, and the rule that a witness or a witness’s spouse should not be a beneficiary — are unforgiving and vary between states. A document that fails them is not a weak will; it is not a will, and the estate passes on intestacy as though it had never been written. Homemade wills fail on formalities far more often than they fail on substance, and they fail invisibly, because nobody discovers the defect until the only person who could cure it has died.

That is a different drafting standard from the one most Nigerian wills are written to, and it costs nothing but attention.

Six provisions distinguish a will drafted for a household from a will drafted for an estate. None is unusual and none is expensive. Their absence is what produces the cold open.

A will operates on the testator’s own property and no further, and four categories of asset sit outside it in a way that regularly defeats an otherwise careful document.

Family property is not his to give. The house occupied by the household may be held by his family as a unit, in which case a devise of it disposes of nothing — the position set out in Sibling 04. This should be checked before the will is drafted rather than discovered at probate.

Jointly held property may pass by survivorship rather than under the will, depending on how the joint holding was created. A testator who believes he is giving away a half share may be giving away nothing.

Property already settled on trust has left the estate, which is the point of Sibling 09. A will that purports to dispose of it is inconsistent with the settlement, and inconsistency between a person’s instruments is itself a source of litigation.

And nominated benefits follow the nomination. An employer’s death benefit, a pension record or a policy schedule directs payment to the person named on the form; the will does not override it, and the distinction between a nomination and an assignment is set out in Sibling 01 and in the funding sub-cluster’s essay on insurance. A great many Nigerians have a carefully drafted will and a twenty-year-old nomination form naming somebody they have not spoken to since.

A fifth limit is not about property at all and catches people who have done everything else correctly. Under the pattern followed in a number of Nigerian jurisdictions, a subsequent marriage under the Act revokes an existing will unless the will was made in contemplation of that marriage. A man who makes careful provision for the household he has, and then marries — including marrying the same woman under the Act, as Sibling 02 describes — may have destroyed the document without ever intending to touch it. The position differs between states and should be checked rather than assumed; the remedy, where it applies, is to make the will expressly in contemplation of the marriage, or to make a new one afterwards.

Where Islamic personal law applies, testamentary freedom operates within a defined limit and the bulk of the estate passes in fixed shares. A will drafted without regard to that limit is not merely ineffective in part; it produces exactly the family dispute it was made to avoid.

Sibling 01 opens with a woman holding a plastic folder full of true things that prove nothing. This act is about the folder he should have assembled instead, and the point is that it is his to make and not hers.

The will is one item in it. Alongside it belong the letter of wishes, which carries the explanation the will should not — who these people are, what they did, why the provision is what it is, in his own voice and at whatever length he needs. It binds nobody and it has settled more disputes than most instruments.

Then the evidence of the relationships the will names: the marriage certificate or the particulars of the customary marriage and who witnessed it, the children’s birth entries, any acknowledgment or adoption order. Then the evidence of the assets: title documents, the certificate of occupancy, policy documents, share certificates, account particulars, and the deed of any settlement.

Then a schedule listing what exists and where it is. This is the item most often missing and the one that costs the most in its absence, because an executor who does not know an asset exists cannot collect it, and assets that are not collected in the first year are frequently not collected at all.

Then the nomination forms, reviewed against the will rather than assumed to agree with it.

And then a decision about where the file lives and who can reach it. A will in a drawer in a house that will be occupied by an interested party within days of the death is a will at risk. Deposit at the probate registry, a solicitor’s custody, or a bank are the ordinary answers, and whichever is chosen, at least two people who are not the same person should know which one it is.

None of this is legal work. It is an afternoon of assembly, done once and reviewed when something changes — a marriage, a birth, a death, a purchase, a sale.

He was never asked to be fair. He was asked to be specific.

Ten essays, and one failure described ten times.

A household that was entirely real — in the compound, in the school records, at the funeral, in the memory of everyone present — meets an institution that can only act on what it is able to read. The institution is not hostile. It is not weighing the relationship and finding it insufficient. It is looking for a field it can complete, finding none, and moving on to the next matter.

Every remedy this cluster describes is an attempt, after a death or a separation, to persuade an institution to do something it is not built to do. Some of those attempts succeed. All of them are slow, most of them are expensive, and each of them requires the household to prove, against people who were once family, something that was obvious to everybody for twenty years.

And every one of them could have been made unnecessary by a document executed on an ordinary afternoon by a person who was not, at the time, in any difficulty at all.

That is the whole of the argument, and it is the reason these essays sit inside a body of work about trusts rather than beside it. The trust cluster asks how wealth survives a generation. This one asks a narrower question with the same answer: what a household leaves behind that an institution can read.

The law was never going to be persuaded of a relationship. It was only ever going to read a record. The record was always his to make.

The law does not ask who you loved. It asks what it can read — and he was the only person who could write it.