Customary Will (Nigeria)

A Customary Will in Nigeria directs how a testator's estate is to be distributed after death and names the executor responsible for administering it. It directs the distribution of the testator's estate to named beneficiaries upon death.

The law governing wills in Nigeria operates at the state level. Each state has enacted a Wills Law (some states adopt the Wills Act 1837 as received English law, while others have enacted bespoke legislation): the Wills Law of Lagos State 1990 (Cap. W2 Laws of Lagos State), the Wills Law of Ogun State, and equivalent statutes in other states. These Wills Laws generally apply to all persons domiciled in the state and permit Nigerians to make wills that depart from customary intestacy rules, within certain limits.

The intersection of customary law and statute in Nigerian succession law creates important nuances for Customary Wills. A testator whose personal law is customary law may make a will disposing of their individually acquired property (self-acquired property) in any manner they choose. However, a testator generally cannot by will disinherit their children entirely or dispose of family property (idi-igi, communal land, or family compounds) without the consent of the family council, as these properties are subject to customary law rights that exist independently of the testator's individual wishes.

The Supreme Court of Nigeria in Idehen v Idehen [1991] 6 NWLR (Pt. 198) 382 confirmed that a testator's right to dispose of self-acquired property by will is protected under Nigerian law, including customary law, while family property remains subject to customary succession unless the family consents to a different disposition.

A Customary Will in Nigeria should be executed in compliance with the Wills Law of the relevant state — typically requiring the testator's signature or mark, attestation by two witnesses, and clarity of testamentary intent — while also reflecting customary law principles regarding mandatory family rights. The legal framework governing the Customary Will (Nigeria) rests on the relevant system of Nigerian customary law, proved as a matter of fact under section 16 of the Evidence Act 2011, and on the Customary Courts and Customary Court of Appeal of the relevant state, subject to the repugnancy test that customary rules must not be contrary to natural justice, equity, and good conscience. The Nigeria Data Protection Act 2023, supervised by the Nigeria Data Protection Commission (NDPC), governs personal data recorded in the document.

A Nigeria Customary Will is needed whenever a person wishes to make specific dispositions of their property on death that differ from the default customary succession rules that would otherwise apply to their estate.

Parents wishing to confirm equal distribution among sons and daughters — departing from customary rules that may favour male heirs — need a Customary Will to give legally effective instructions for equal or specific distribution.

Polygamous family heads with children from multiple wives may wish to specify allocations of property among the different family branches (idi-igi), departing from the default customary rules that may treat branches unequally based on the seniority of wives.

Business owners holding companies registered under CAMA 2020 with the Corporate Affairs Commission (CAC) need a will to specify who should inherit their shares and control of the business, as customary succession without a will may result in fragmented ownership among multiple family members.

Land and real property owners who acquired land under the Land Use Act 1978 (Certificate of Occupancy) need a will to specify the successor to their right of occupancy, as the right of occupancy is personal and reverts to the governor on death unless transferred to a successor.

Persons with charitable, educational, or community intentions who wish to leave property to organisations, schools, mosques, churches, or community funds need a will, as customary succession distributes only to living family members.

Persons with substantial individually acquired wealth — as opposed to inherited family property — who wish to protect specific assets for specific beneficiaries (a spouse, a dependent child, or a trusted person) from the broader customary family claims need a Customary Will to document those intentions clearly. Parties in Nigeria should prepare a Customary Will (Nigeria) before a dispute arises, since the Customary Court interprets the document by its written terms rather than oral recollection. Customary law applied to the document must satisfy the repugnancy test and may be proved by evidence under section 16 of the Evidence Act 2011.

A Nigeria Customary Will must contain the following elements to be legally valid and practically effective.

Testator's identification: full legal name, age, address, and ethnic or community identity of the testator, together with a statement of mental capacity (that the testator is of sound mind and testamentary capacity at the time of making the will).

Revocation clause: a statement revoking all previous wills, codicils, and testamentary arrangements, to confirm the current will supersedes any earlier documents.

Appointment of executor: the name, address, and relationship of the person(s) appointed as executor(s) to administer the estate. In customary law contexts, the executor is often the head of family or a trusted son or daughter. The executor should be willing to act and able to obtain Letters of Administration or Probate from the Probate Registry of the relevant State High Court.

Description and disposition of assets: a clear description of each category of asset — real property (with certificate of occupancy or plot numbers), bank accounts, investments, businesses (RC numbers), vehicles (with registration details), personal effects — and the name of the specific beneficiary for each asset.

Customary law acknowledgements: where the testator wishes to modify customary succession rules (e.g., to include daughters in inheritance of family land), the will should expressly state this intention and, where appropriate, record the consent of the family council.

Specific bequests and residue: specific bequests of named items to named persons, and a residuary clause disposing of the remainder of the estate after all debts, taxes, and specific bequests are satisfied.

Funeral and burial instructions: customary law communities in Nigeria attach significant importance to burial rites. Including specific funeral and burial instructions in the will, or in a separate letter of wishes, respects these customary obligations.

Execution formalities under the applicable Wills Law: the testator's signature or mark, dated, in the presence of two witnesses who sign in the testator's presence. Witnesses should not be beneficiaries under the will (as their gift may be void under the Wills Law). The will should be stored with a trusted person or solicitor and registered with the Probate Registry if available. Parties should confirm that the Customary Will (Nigeria) reflects the applicable customary law of the relevant community and the Customary Court (Civil Procedure) Rules of the state before execution. Forms-legal.com provides this template as a starting point for Nigeria-compliant documentation.