MODES OF EXECUTING A VALID WILL

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CASE TITLE: OKEKE & ORS v. OKEKE & ORS (2019) LPELR-47253(CA)

JUDGMENT DATE: 12^TH APRIL, 2019

PRACTICE AREA: WILLS AND PROBATE

LEAD JUDGMENT: ABUBAKAR SADIQ UMAR, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Wills and Probate Law.

FACTS

This is an appeal against the decision of the Enugu State High Court Holden at Enugu, delivered on the 16th March 2015, Per I.A. UMEZULIKE J.

The Appellants as Plaintiffs in the High Court brought an action as individual members of Late Chief James Chukwuma Okeke’s estate against the Respondents as Defendants.

Chief James Chukwuma Okeke died on the 28th day of January 2004. The 1st and 2nd Respondents who were equally 1st and 2nd Defendants at the trial Court are surviving brothers and cousin of Late Chief James Chukwuma Okeke while the 3rd, 4th and 5th Respondents as Defendants in the trial Court are the children of the deceased. The deceased got married to five (5) wives but was survived by two (2) wives during his lifetime.

​It was the contention of the Appellants that a document which purported to be a Will of the said Late Chief James Chukwuma Okeke was not and could not have been made by him as same is a fraud on the Appellants. On the 28th November 2004, a family meeting was held where the 1st and 2nd Respondents informed all present that the said Chief James Chukwuma Okeke (deceased) made a Will prior to his demise. The 3rd Respondent thereafter was said to have bought a sealed envelope containing the said Will of Chief James Chukwuma Okeke (deceased) and by agreement of all present, the Appellants inclusive, the sealed envelope was opened and the purported Will and last testament of Chief James Chukwuma Okeke (deceased) was read by the 3rd Respondent in the presence of the family members.

After the close of evidence and adoption of final written address by parties, the learned trial judge dismissed all claims of the plaintiffs in this case with the exception of the first son of Chief James Chukwuma Okeke inheriting the Obi at Nnewi to the exclusion of all other children of the deceased James Chukwuma Okeke.

However, the Appellants being dissatisfied with the judgment, appealed to the Court of Appeal.

ISSUES FOR DETERMINATION

The Court determined the appeal based on a sole issue thus:

Whether having regard to the pleadings and evidence adduced, the learned trial judge was justified and right in giving/delivering judgment in favour of the respondents.

DECISION/HELD

In the final analysis, the Court of Appeal found no merit in the appeal and it was dismissed. The decision of the High Court was affirmed.

RATIOS:

• WILLS AND PROBATE – EXECUTION OF A WILL: Modes of executing a valid Will
• WILLS AND PROBATE – TESTAMENTARY CAPACITY: When will the mental capacity of a testator be determined
• EVIDENCE – BURDEN OF PROOF/ONUS OF PROOF: Burden of the propounder of a Will; whether same shifts