SUCCESSION

Succession to the estate of a deceased can be by testate or interstate.

Testate Succession: This comes into place where the deceased left behind a written Will or testament
defining in the declaration or a prescribed manner, his intention on how his/her will like his/her property
to be disposed of after his/her death. This is subject however to the prevailing customary law system.
Read s.30 WA.

What is a Will? s.2 of the Wills Act Cap. 14:06 Laws of The Gambia 2009 defined a Will to mean “the
declaration by a person of his or her true and free wishes or intentions regarding the disposition of his or
her property after his or her death made in accordance with the provisions of this Act, and includes a
codicil, an appointment by Will or writing in the nature of a Will in exercise of a power, and any other
testamentary disposition.

Essentially a Will is:

 A testamentary document

 voluntarily made by the testator

 Executed according to law - s.5

 The Testator must be of sound disposing mind (corpus mentis) in disposing of his/her property

Applicable Laws:

 The Wills Act, Cap. 14:06 Laws of The Gambia, 2009

 The Wills amended Act. 1852 (Statute of General Application which were in force in England on
January 1 1900)

 The Wills Amended Act 1837

 Soldiers and Sailors Act, 1918

Note s31 Wills Act on the repeal and transitional provision.

The Nature of a Will:

The two distinctive nature of a Will are:

1. Ambulatory and revocable

2. Aminus testandi.

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Ambulatory and Revocable:

The ambulatory and revocable nature of a Will are the two fundamental characteristics of a Will.

Ambulatory: A Will being ambulatory means it takes effect from the death of the testator. Consequently,
any property dealt with in a Will, but disposed by the testator before his death cannot be affected by the
Will. in the same vein, a property acquired after the making of the Will, may be disposed under its terms.

A testator during his lifetime is at liberty to completely revoke or alter his or her Will provided he or she
complies with the appropriate formalities as provided in s.8 of the Wills Act.

Revocable: this is a situation where the Will is completely changed, revoked, alter or additions made by
the testator during his lifetime so long as he complies with the appropriate formalities (s.8)

Note that the revocation of a Will renders such Will inoperative. This implies that a Will or codicil or any
part of it, which is in any manner revoked shall not be revived, otherwise than by the re-execution
thereof in accordance with the provisions of section 5 unless there is apparent on the face of the Will an
intention to revive the Will, codicil or part thereof. Read s.9 WA

The import of this section is that a Will which has been revoked with an intention to revive the Will can
so be revived unless the Will has been totally destroyed in which case, a new Will will be appropriate.
A Will can be revoked expressly or impliedly – s.8 WA

Means by which a Will can be Revoked:

1. Destruction: A Will can be destroyed by burning, tearing, or otherwise destroying the same by
the testator or by some person in his presence and by his instruction with the intention of
revoking same.
2. Marriage: According to s.8 (1) (a), a Will is revoked by marriage, except where the testator or
testatrix express in the Will that the Will is made in contemplation of that marriage, or where it
is otherwise apparent that the testator or testatrix intended that the Will survives that marriage.
Read further sub ss. (2) and (3)of s.8
3. Execution of a later Will: where a later Will is executed in accordance with the requirement of
the Wills’ Act, that expressly or impliedly revokes the earlier Will.
4. A Will can also be revoked by a written declaration. This declaration can only be valid if the
intention of the testator to revoke is established.

This principle is subject to the following exceptions:

 Customary law marriages
 Made in exercise of a power of appointment and the property thereby appointed would pass in
default of an appointment to the testator’s heir, executor, administrator or statutory next of kin
Note that where exercise of power of appointment is involved, revocation by marriage is restricted only
to those cases in which the instrument creating the power provides that in default of appointment the
property is to devolve as an intestacy. Read the case of Re Gilligan (1949 2 All ER 401).

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Aminus Testandi:

For a Will to be valid, the testator must have executed his or her Will with the intention that it is his or
her last Will and testament subject however to the case of Privileged Will of Soldiers, airmen and sailors
(s.6). Aminu will be lacking where the testator is insane or was compelled to execute the Will.

Formal Requirement of a Will: s.5

The formal requirement of a Will herein explained excludes Privileged Wills.

The requirement include:

1. Writing:

By virtue of s.5, a Will must be in writing. An oral Will is therefore invalid. A written Will has no special
prescribed form, what is important is that it should be on durable paper which will stand the test of time

2. Signature of the Testator/Testatrix:

It is a mandatory requirement that the testator/testatrix signs the Will or someone by his/her presence
fland by his/her direction. If signed by the person signing for the testator, he/she may sign his own name
or that of the testator. Where the testator is an illiterate, it is good he/she append his/her
thumbprint/mark in place of a signature.

Irrespective of the position of the signature, provided the signature is apparent on the face of the Will
and that the testator/testatrix intended to give effect to such signature as his Will, the Will is valid in law.

3. Acknowledgement in the presence of Witnesses:

The testator or testatrix signature or thumbprint shall be made or acknowledged in the presence of at
least two or more witnesses present at the same time and who subsequently attest the will.

Note that testator/testatrix may not only sign in the presence of witnesses but could acknowledge
his/her previous signature before them. Such acknowledgement must be express or implied.

4. Attestation by Witnesses:

Although the law provide that witnesses attest and subscribe to the Will in the presence of the
testator/testatrix, nor form of attestation is made mandatory. The instructive thing is that the witnesses
must not sign before the testator/testatrix.

5. Alterations – s.7:

s.7 of the Wills Act provides that all alterations made after the execution of a Will must be executed in
the same way as the Will itself.

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To give credence to the altered Will, the testator/testatrix and witnesses are required to sign in the
margin or some other part of the Will opposite or near the alteration or at the foot or end of, or opposite
to, a memorandum referring to the alteration and written in some part of the Will.

OPERATION OF WILLS:

The effect of Wills can be viewed under the following sub-heads:

1. Commencement date of a Will

2. Property Disposable by Will

Commencement date of a Will:

From the definition provided in s.2 of the Act, it implies that the date of the testator’s death serves as a
reference point in terms of giving effect to the provisions of the Will. invariably, the Will takes effect after
and not before the death of the testator/testatrix.

Property Disposable by Will

Although the Act granted the testator the right to dispose of all or part of his personal and real estate to
which he is entitled before the time of his death, recourse must be had to s.30 of the Act when making a
Will for the disposal of testator’s personal and real estate.

s.30 of the Act made it explicitly clear that a Will made by a person whose personal law is Sharia law
shall be construed in accordance with Sharia law. The Act went on in sub s.2 to conclude that nothing in
this Act shall be construed as affecting the Sharia law of inheritance.

Going by the strict provision of s.30 of the Act, no Will irrespective of it meeting the formalities as
provided in s.5 shall be valid if the testator being a Muslem made his Will in violation of the Sharia law.

The combine view of s.30 of the Wills Act and s.7 (e) of the Constitution brings to light that the
customary law practice in terms of disposal of testator’s property, must be given great consideration
when making a Will. read the following authorities: Idehen v. Idehen (1991) 6 N.W.L.R 381 and Lawal
Osula v. Lawal Osula (1993) 2 N.W.L.R158 to identify how customary law can affect the dispositions made
in a Will.

Read further, ss.23; (vitiating factors) and 24 (meeting formal validity) and 29 (conflict in the existence of
two internal laws)

Capacity to make a Will:

Capacity to make a Will can be viewed under the following perspective:

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 1. Choice of law Rule: The conflict of law rule determines the capacity of the testator to make a
Will. The system therefore determines how the testator’s estate will be disposed in terms of
his/her movables and immovables.
The testator’s movables are governed by the testator’s lex domicilii at the time the Will is made
ie, the place where the testator lived and died at the time the Will was made.
On the other hand, the immovables are governed by the lex situs.

2. Persons with Capacity:

The wills Act of 1937 as amended and the wills law, 1852 grants capacity to make a will irrespective of
the fact that the person is subject to customary Law. This general provision is subject however to s.30 of
the Wills Act of The Gambia, 2009 and the cases of Idehen v Idehen (1991) 6 N.W.L.R.381 and Lawal
Osula v.Lawal Osula (1993) 2 N.W.L.R 158

The following are persons with capacity:

I. Infants: persons under 18 years have no capacity to make a will except infants under
actual military service. The exception herein covers infants under the Privilege Willl. See
the case of Banks v good Fellow (1870) I.R. 5 QB 549-567
II. Persons of unsound mind: the ability of the testator to understand the nature of the act
he is involved, depends on the soundness of mind and memory the testator possesses at
the time of making the Will. The time to determine the testator’s mental state is at the
time of making of the will. Even where a testator has a mental history but happen to
make a Will during his lucid period, the Will remains valid. Note that the burden of
establishing the sounders of mind of the testator falls on the pay who sets up the will.
III. Blindness or illiteracy: the law sees both blind and illiterates are proper persons who
can make a Will. The only issue in making such a Will is that adequate care must be
taken to avoid fraud. Read the case of INSTITFUL V CHRISTIAN (1951) 13 WACA, 345.
Take note that this class of persons can make a Will but cannot witness a Will. see the
case of Re: Gibson (1949) All ER 90 p. 434
Very instructive is the fact that if an illiterate makes a Will, he must affix his thumbprints
with his name as the testator, written beneath the thumbprint. (illiterate jurate)
IV. Married Women: Before now, section 8 of the Wills Act, 1937 foreclosed married
women from making testamentary disposition. At the present, s.2 of the Married
Women’s Property Act Cap. 41:05 vol.7 Laws of The Gambia, 2009 grants married
women the privilege to acquire, hold and dispose by Will or otherwise of any real or
personal property as her separate property in the same manner as if she were a feme
sole, without the intervention of any trustee.
V. Fraud or coercion: a person shall lack capacity to make a Will if there is establishment of
fraud or coercion in execution of a Will. The establishment of fraud and coercion renders
a Will invalid. Coercion can be established through application of force or excessive
pressure. The burden of proving same is on the party who alleges fraud or coercion.

The Advantages of making a Will:

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The making of a Will to many people is a remembrance of dearth as such will not want to make a Will.
There are however, ample reasons why it is desirable to make a Will thus avoiding intestacy.

Below are some of the advantages:

 The Will subject to s.30 of the Wills Act and s7 (e) of the Constitution, excludes the rules of
inheritance under Native Law and Custom.

 It exclude statutory rules of inheritance

 The testator/testatrix can appoint people he/she wants as personal representatives.

 It reduces expenses. A grant of administration where there is no Will, involves the additional
expenses of a bond and sureties which can be avoided where there is existence of a Will.

 The death of a last administrator gives way to fresh grant whereas with the existence of a Will,
by transmission, the executors of the last surviving executor could complete the winding up of
the estate of the testator.

 An executor has authority to act as from death and even before the issue of probate he could do
certain things on behalf of the estate. This privilege do not avail an administrator who must wait
until the grant of letters of administration.

 By a Will, a testator can appoint a guardian for his infant children and can similarly give direction
as to the disposal of his remains.