LEGAL PRINCIPLE: SUCCESSION LAW — Wills Law — Testamentary Capacity Not Defeated by Customary Law Limitation
PRINCIPLE STATEMENT
The main object of the Wills Law is to confer testamentary capacity on every person to dispose of property by Will. Interpreting it to require devises in accordance with customary intestacy would render the Wills Law impotent. The phrase "subject to customary law" qualifies the subject matter, not testamentary capacity.
RATIO DECIDENDI (SOURCE)
Per Wali, JSC, in Idehen & Ors v. Idehenn & Ors (1991) NLC-2711989(SC) at pp. 51–52; Paras D–A.
"The main object of the Wills Law is to confer on every person in Bendel State the testamentary capacity to dispose of his or her property in a Will. If the interpretation that a testator must devise his property in accordance with the provisions of customary law relating to intestacy were adopted, it would render the Wills Law an impotent legislation. A proper construction of the phrase 'subject to customary law relating thereto' shows that it would not have been intended to qualify the testamentary capacity of the testator, but rather the subject matter of the devise."
EXPLANATION / SCOPE
The Wills Law grants testamentary capacity; customary law does not defeat this. Requiring compliance with customary intestacy rules would nullify the Wills Law. The principle applies to succession law. The rule protects the beneficial purpose of the Wills Law. “Subject to customary law” limits which property can be devised, not the power to devise. Testamentary capacity remains broad.
