LEGAL PRINCIPLE: SUCCESSION LAW — Wills Law, Section 3(1) — Interpretation of “Subject to any customary law relating thereto”
PRINCIPLE STATEMENT
The phrase "Subject to any customary law relating thereto" in Section 3(1) of the Wills Law qualifies the property disposed of, not the testator's capacity. A testator has testamentary capacity to dispose of property by Will, but this power is subject to customary law applicable to such property. The phrase refers to property a person cannot dispose of under customary law.
RATIO DECIDENDI (SOURCE)
Per Kawu, JSC, in Idehen & Ors v. Idehenn & Ors (1991) NLC-2711989(SC) at pp. 19–20; Paras D–A.
"The phrase 'Subject to any customary law relating thereto' in Section 3(1) of the Wills Law of Bendel State is a qualification of the subject matter of the property disposed of or intended to be disposed of under the Will, and not a qualification of the testator's capacity to make a Will. A person of Bendel State origin and bound by his customary law has testamentary capacity to dispose by Will of all real estate and all personal estate which he shall be entitled to at the time of his death. However, this power to dispose by Will is subject to the provision of his or her customary law applicable to such property. The phrase refers to and qualifies the property which a person cannot dispose of having regard to his customary law."
EXPLANATION / SCOPE
“Subject to customary law” qualifies the property that can be devised, not the testator’s capacity to make a Will. Testamentary capacity is conferred by the Wills Law. The principle applies to succession law. The rule permits disposition by Will but subject to customary restrictions on specific property. Certain property may be inalienable under customary law. The testator’s general capacity to make a Will remains unaffected.
