LEGAL PRINCIPLE: APPELLATE PRACTICE — Will — Invalid Devise Does Not Invalidate Entire Will
PRINCIPLE STATEMENT
Under the Wills Law, a devise or bequest can only be declared void if it contravenes a particular rule of customary law. A finding that one devise is invalid does not support declaring the entire Will void in the absence of evidence that other devises conflict with customary law.
RATIO DECIDENDI (SOURCE)
Per Kawu, JSC, in Idehen & Ors v. Idehenn & Ors (1991) NLC-2711989(SC) at p. 20; Paras D–A.
"Under the Wills Law, a devise or bequest can only be declared void if it contravenes a particular rule of customary law as the devise in Clause II of Exhibit 'D' did. There is not a scrap of evidence to support a finding that any of the other remaining devises and bequests were in conflict with any particular rule of Benin customary law. The Court of Appeal was in error when it declared the testator's Will void in its entirety."
EXPLANATION / SCOPE
Invalidity of a specific devise does not void the entire Will. Only devises contravening customary law are void individually. The principle applies to succession law and wills. The rule preserves valid portions of a Will. The entire Will is void only if all devises are invalid or the invalid portion cannot be severed. The court erred in declaring whole Will void based on one invalid clause.
