Learning Objectives

By the end of this lesson you will be able to:

Define a will and explain its legal nature under Nigerian law, distinguishing it from a gift inter vivos and other testamentary dispositions

Identify the formal requirements for a valid will under the Wills Act 1837 (as received in Nigeria), the Wills Laws of various states, and under customary and Islamic law

Explain the concept, purpose, and formal requirements of a codicil and advise when a codicil is preferable to drafting a new will

Describe the methods by which a will may be revoked under Nigerian law, including revocation by subsequent will, by destruction, by marriage, and by operation of law

Outline the process of obtaining probate and letters of administration in Nigeria, and distinguish between the roles of an executor and an administrator

Explain the rules of intestate succession under the Marriage Act, customary law (Yoruba, Igbo, and Hausa traditions), and Islamic law, with reference to key Nigerian cases

Analyse the impact of a mortgagor’s death on a mortgage transaction and advise lenders on the practical steps necessary to protect their security interest in the estate

Apply the principles of estate administration to real-world scenarios involving mortgaged property in Lagos, Abuja, and other Nigerian jurisdictions

Introduction: Why Mortgage Professionals Must Understand Wills and Estate Administration

A mortgage is a long-term financial commitment. A typical Nigerian residential mortgage runs for ten to twenty-five years, and during that period the mortgagor may experience any number of life events — marriage, divorce, business failure, relocation, or death. Of these, death is the event most likely to trigger a crisis for both the mortgagor’s family and the lender, because it immediately raises the question: what happens to the mortgaged property and the outstanding debt when the borrower dies?

The answer depends on the law of wills and estate administration. If the mortgagor left a valid will, the property passes to the named beneficiary subject to the mortgage. If the mortgagor died intestate — without a will — the property devolves according to the applicable rules of succession, which in Nigeria may be governed by the Marriage Act, customary law, or Islamic law depending on the deceased’s personal circumstances and the state in which the property is situated. In either case, the lender’s security interest subsists: the mortgage does not disappear on death. But the practical steps required to enforce that security, to identify the right parties, and to manage the transition are complex and require a working knowledge of testamentary and succession law.

Think of it this way. If you are a mechanic, your primary concern is the engine. But if the car is involved in an accident and the driver is killed, you need to know something about insurance law, police reports, and next-of-kin procedures to get the car released from the impound lot and returned to the rightful owner. In the same way, a mortgage professional’s primary concern is the loan and the security. But when the borrower dies, the professional needs to understand enough about wills, probate, and succession to navigate the estate administration process efficiently and protect the lender’s position. This lesson provides that understanding.

The Nature and Definition of a Will

A will — also called a testament or last will and testament — is a written declaration by which a person (the testator, if male; the testatrix, if female) directs how their property is to be distributed after death. The essential characteristics of a will are three: it is revocable during the testator’s lifetime, it takes effect only upon death, and it disposes of the testator’s property. A document that purports to transfer property immediately is not a will but a deed of gift (gift inter vivos). The distinction matters in practice because a deed of gift, once executed and delivered, cannot be revoked, whereas a will can be changed or cancelled at any time before the testator’s death.

In Nigerian law, the right to make a will is not absolute. It is subject to the testator’s testamentary capacity — the legal ability to make a valid will. The test for testamentary capacity was laid down in the English case of Banks v. Goodfellow (1870) LR 5 QB 549 and has been adopted by Nigerian courts. The testator must understand the nature and effect of making a will, must know the extent of the property being disposed of, must be aware of the persons who would ordinarily have a claim on the estate, and must not be suffering from any disorder of the mind that influences the dispositions. A will executed by a person lacking testamentary capacity is void.

The minimum age for making a valid will in Nigeria varies. Under the Wills Act 1837 (applicable through received English law in many states), a person must be at least 18 years old unless they are a soldier in actual military service or a mariner at sea. Some state Wills Laws set the minimum age at 21. Islamic law permits a person who has attained puberty to make a wasiyyah (will), subject to the one-third limitation discussed below.

Formal Requirements for a Valid Will

Under the Wills Act 1837 and State Wills Laws

The Wills Act 1837 prescribes the following formal requirements: First, the will must be in writing. Second, the will must be signed by the testator, or by some other person in the testator’s presence and by the testator’s direction. Third, the testator’s signature must be made or acknowledged in the presence of two or more witnesses present at the same time. Fourth, each witness must attest and sign the will in the presence of the testator.

A critical rule is that a beneficiary under the will (or the spouse of a beneficiary) must not act as a witness. If a beneficiary or their spouse does witness the will, the will itself remains valid, but the gift to that beneficiary is void under section 15 of the Wills Act 1837. Consider a Lagos property owner who drafts a will leaving a house in Lekki to his eldest son and asks the son to witness the will. The gift to the son is destroyed.

The Wills Law of Western Nigeria (applicable in Lagos, Ogun, Oyo, Osun, Ondo, Ekiti, Edo, and Delta States) substantially mirrors the 1837 Act but with local adaptations. Practitioners must always check the applicable state law.

Customary Law Wills (Nuncupative Wills)

Under many Nigerian customary law systems, a will may be made orally. These are known as nuncupative wills. In Yoruba customary law, a man may on his deathbed declare before family members and elders how his property is to be distributed. The Supreme Court in Agidigbi v. Agidigbi (1996) 5 NWLR (Pt. 449) 420 affirmed the validity of customary-law wills made in accordance with local usage.

However, customary wills present serious evidentiary challenges. For mortgage professionals, the risk is acute: if a mortgaged property devolves through a contested customary will, the lender may face years of litigation before the rightful beneficiary is established.

Islamic Wills (Wasiyyah)

Under Islamic law, a Muslim may make a wasiyyah subject to two important limitations. First, the bequest cannot exceed one-third of the net estate after payment of debts. The remaining two-thirds is distributed according to the fixed Quranic shares (faraid). Second, a bequest cannot be made in favour of a person who is already an heir under the Quranic distribution rules, unless the other heirs consent after the testator’s death.

If a deceased Muslim mortgagor in Kano leaves a will bequeathing the mortgaged house to a non-heir, and the bequest exceeds one-third of the net estate, the Sharia court will reduce the bequest to one-third. The lender must then negotiate with multiple heirs to recover the outstanding debt.

Types of Wills

Nigerian law recognises several types of wills. An unprivileged will is the standard form. A privileged will is one made by a soldier in actual military service or a mariner at sea. A holographic will is one written entirely in the testator’s own handwriting. A joint will is a single document executed by two or more persons (typically spouses). A mutual will is an arrangement where two persons make wills in each other’s favour. A conditional will takes effect only upon the happening of a specified event.

Codicils

A codicil is a supplement or addition to an existing will. It may add new provisions, modify existing ones, or revoke particular clauses without disturbing the remainder of the will. A codicil must comply with the same formal requirements as a will: writing, signature, and attestation by two witnesses. When admitted to probate, a codicil is read together with the will as a single testamentary instrument.

A codicil is appropriate when the testator wishes to make minor changes. If the changes are substantial, it is usually better to execute an entirely new will with a revocation clause. Experienced estate solicitors advise clients to limit codicils to one or two; beyond that, the risk of inconsistency and litigation increases.

Revocation of Wills

A will may be revoked in four ways under Nigerian law. First, by a subsequent will or codicil that expressly or impliedly revokes the earlier instrument. It is standard practice to include a revocation clause in every new will. Second, by burning, tearing, or otherwise destroying the will with the intention of revoking it. Third, under the common law, a will is revoked by the testator’s subsequent marriage. This rule, codified in section 18 of the Wills Act 1837, applies only to marriages under the Marriage Act (statutory marriages), not to customary or Islamic marriages. Fourth, a will may be revoked by operation of law.

Probate and Letters of Administration

Probate

Probate is the legal process by which a court confirms the validity of a will and authorises the executor named in the will to administer the deceased’s estate. In Nigeria, probate is granted by the Probate Division of the High Court of the state in which the deceased was domiciled at the time of death. The application must be supported by the original will, a death certificate, an inventory of the deceased’s assets, and an oath of the executor.

The probate process in Nigeria can be lengthy. In Lagos, the typical turnaround is three to six months, though contested applications may take years. For mortgage lenders, this delay is significant because, until probate is granted, the executor has limited authority to deal with the estate assets.

Letters of Administration

Where a person dies intestate, or where the executor named in the will is unable or unwilling to act, the court issues letters of administration to a suitable person — typically the surviving spouse, a child, or another next of kin. The administrator performs the same functions as an executor but derives authority from the court’s grant rather than from the will. The administrator must post an administration bond as security for the faithful performance of duties.

An executor’s authority relates back to the date of death; an administrator’s authority begins only when the grant of letters of administration is made. This gap can create practical difficulties for mortgage lenders.

Intestate Succession in Nigeria

Intestacy is extremely common in Nigeria. Estimates suggest that fewer than five percent of Nigerian adults have executed a valid will.

Succession Under the Marriage Act

Where the deceased contracted a marriage under the Marriage Act, the estate is distributed according to the provisions of the applicable Administration of Estates Law. In Lagos State, if the deceased leaves a spouse and children, the spouse receives one-third of the personal estate and the children share two-thirds; if the deceased leaves a spouse but no children, the spouse receives one-half and the remainder passes to the deceased’s parents, siblings, or other next of kin.

Succession Under Customary Law

Where the deceased married under customary law, the estate is distributed according to the customary law of the deceased’s ethnic group. Under Yoruba customary law, the two principal systems are the Idi-Igi system (per stirpes) and the Ori-Ojori system (per capita). The Supreme Court’s landmark decision in Ukeje v. Ukeje (2014) 11 NWLR (Pt. 1418) 384 declared that any customary law that disinherits female children from their father’s estate is unconstitutional under section 42 of the 1999 Constitution. Under Igbo customary law, the traditional rule of primogeniture has also been altered by Ukeje v. Ukeje.

Succession Under Islamic Law

Islamic inheritance law (faraid) is mathematically precise. A surviving wife receives one-eighth of the estate if the deceased left children, or one-quarter if he did not; a surviving husband receives one-quarter if there are children, or one-half if there are none. The Supreme Court in Zaidan v. Mohssen (1973) 11 SC 1 affirmed that Islamic inheritance law is applicable to the estates of Muslims in Nigeria. In Suberu v. Sunmonu (1957) 2 FSC 33, the Federal Supreme Court held that Yoruba customary law of succession applied to the estate of a Yoruba Muslim who married under customary law.

For mortgage lenders, Islamic succession creates a particular challenge: multiplicity of heirs. A deceased mortgagor in Kaduna may leave ten or more co-owners, each holding a different fractional share.

Estate Administration and Mortgaged Property

Duties of Personal Representatives

The personal representative — whether executor or administrator — has a fiduciary duty to collect the assets of the estate, pay the debts, and distribute the residue to the beneficiaries. Among the debts that must be paid are the liabilities secured by mortgages on the estate’s property. The personal representative must decide whether to redeem the mortgage, sell the property, or transfer the property to a beneficiary who is willing and able to assume the mortgage.

Insurance and Mortgage Protection

Many Nigerian mortgage transactions include a mortgage protection insurance policy — a decreasing term life insurance policy that pays the outstanding mortgage balance if the borrower dies during the term. The National Insurance Commission (NAICOM) guidelines and the CBN’s Prudential Guidelines both encourage the inclusion of mortgage protection insurance as a condition of disbursement.

In practice, many Nigerian mortgages do not include mortgage protection insurance. In such cases, the estate must bear the full burden of the outstanding debt.

Impact on Mortgage Transactions: Practical Steps for Lenders

When a mortgagor dies, the lender should take the following practical steps:

Confirm the death and obtain a certified copy of the death certificate.

Notify the lender’s legal department and place the mortgage account on a deceased status.

Check whether a mortgage protection insurance policy is in place and initiate the claims process.

Identify the personal representative and request a copy of the grant of probate or letters of administration.

Communicate with the personal representative regarding the outstanding balance and the options available.

Ensure that the property insurance remains in force.

If a beneficiary wishes to assume the mortgage, conduct a fresh credit assessment.

If the property is to be sold by the personal representative, co-operate in providing the discharge documentation.

The overarching principle is that the mortgage survives the mortgagor’s death. The lender’s security interest in the property is not extinguished.

Case Study 1 — Death of a Lagos Mortgagor: Insurance Saves the Day

Mr. Chukwuemeka Obi, a 48-year-old bank executive, obtained a N95 million mortgage from AG Mortgage Bank in 2020 to purchase a four-bedroom semi-detached house in Lekki Phase 2, Lagos. The mortgage was for fifteen years at 19.5% per annum. As a condition of disbursement, AG Mortgage required Mr. Obi to obtain a mortgage protection insurance policy from Leadway Assurance.

In January 2026, Mr. Obi died suddenly of a cardiac arrest. At the time of death, the outstanding mortgage balance was N78 million. Mr. Obi left a will naming his wife Mrs. Ada Obi as sole beneficiary. The trust company applied for and obtained probate from the Lagos High Court Probate Registry within four months. Simultaneously, AG Mortgage notified Leadway Assurance of Mr. Obi’s death.

Leadway Assurance verified the policy, confirmed that premiums were current, and paid the outstanding balance of N78 million directly to AG Mortgage within eight weeks. AG Mortgage executed a deed of release, cancelled the mortgage registration, and returned the title documents to the trust company. The property passed to Mrs. Ada Obi free of the mortgage. Total time from death to discharge: approximately five months.

This case illustrates the value of mortgage protection insurance.

Case Study 2 — Intestacy Dispute Affecting Mortgaged Property in Kaduna

Alhaji Musa Abdullahi, a 62-year-old textile merchant in Kaduna, died intestate in March 2025. He left behind two wives, six sons, four daughters, and his elderly mother. His principal asset was a commercial property on Ahmadu Bello Way, Kaduna, which was subject to a N45 million mortgage. The outstanding balance at death was N32 million. There was no mortgage protection insurance.

Under Islamic inheritance law (faraid), each of the two wives was entitled to one-eighth of one-quarter of the estate, the mother to one-sixth, and the sons and daughters received residual shares in the ratio of 2:1. The resulting distribution gave each heir a small fractional interest in the property.

The primary mortgage bank found itself negotiating with thirteen heirs. After eighteen months, the bank exercised its power of sale. The property was sold at auction for N55 million. After deducting the outstanding balance, accrued interest, and selling costs, the surplus of N13 million was paid to the administrator for distribution among the thirteen heirs.

This case highlights the challenges of intestacy and Islamic succession for mortgage lenders.

Summary

A will is a revocable, written declaration of how a person’s property is to be distributed after death. In Nigeria, wills may be governed by the Wills Act 1837 and state Wills Laws, by customary law, or by Islamic law. Codicils supplement a will and must meet the same formal requirements. Wills may be revoked by subsequent will, destruction, marriage (under the Marriage Act only), or operation of law.

When a person dies testate, probate is obtained from the High Court. When a person dies intestate, letters of administration are granted to an administrator. The rules of intestate succession differ dramatically depending on whether the deceased married under the Marriage Act, customary law, or Islamic law. The Supreme Court’s decision in Ukeje v. Ukeje (2014) has declared gender-discriminatory customary succession rules unconstitutional.

For mortgage professionals, the mortgage survives the mortgagor’s death. The lender’s security interest binds the estate. Mortgage protection insurance is the single most effective tool for ensuring a smooth resolution.

KEY TAKEAWAYS

A will is revocable, takes effect on death, and disposes of the testator’s property; it must satisfy formal requirements under the Wills Act 1837 and state laws

Customary law permits oral (nuncupative) wills, but these are difficult to prove and frequently contested

Islamic wills (wasiyyah) cannot exceed one-third of the net estate and cannot benefit existing Quranic heirs without consent

A codicil supplements a will and must meet the same formal requirements; limit codicils to avoid confusion

Wills are revoked by subsequent will, destruction, marriage (statutory only), or operation of law

Intestate succession varies by personal law: Marriage Act, customary law, or Islamic faraid rules. Ukeje v. Ukeje (2014) outlaws gender-discriminatory customary succession

The mortgage survives the mortgagor’s death and binds the estate

Mortgage protection insurance is the most effective safeguard; lenders should require it as a condition of disbursement

Knowledge Check (10 Questions)

1. Which of the following is a fundamental characteristic of a will?

   1. It transfers property immediately upon execution
   2. It is irrevocable once signed
   3. It takes effect only upon the testator’s death
   4. It must be registered at the Lands Registry

2. Under the Wills Act 1837, a valid will requires attestation by:

   1. One witness
   2. Two witnesses present at the same time
   3. Three witnesses
   4. No witnesses if the will is typed

3. What happens if a beneficiary under a will witnesses the will?

   1. The entire will is void
   2. The will is valid but the gift to that beneficiary is void
   3. The witness is fined
   4. Nothing — it has no effect

4. Under Islamic law, a testamentary bequest (wasiyyah) may not exceed:

   1. One-half of the net estate
   2. One-quarter of the net estate
   3. One-third of the net estate
   4. Two-thirds of the net estate

5. The Supreme Court case of Ukeje v. Ukeje (2014) established that:

   1. Islamic succession overrides customary law
   2. Women cannot inherit mortgaged property
   3. Gender-discriminatory customary succession rules are unconstitutional
   4. Probate is no longer required in Lagos State

6. Probate is granted by the court to:

   1. The surviving spouse automatically
   2. The eldest son of the deceased
   3. The executor named in the will
   4. The mortgagee

7. Letters of administration are granted when:

   1. The deceased left a valid will with a named executor
   2. The deceased died intestate or the executor is unable to act
   3. The estate has no debts
   4. The deceased owned no property

8. When a mortgagor dies, the mortgage:

   1. Is automatically discharged
   2. Is void for frustration
   3. Survives and binds the estate
   4. Passes to the government

9. Mortgage protection insurance is designed to:

   1. Insure the property against fire
   2. Pay the outstanding mortgage balance if the borrower dies
   3. Guarantee the property’s market value
   4. Exempt the estate from probate fees

10. A codicil to a will must:

    1. Be notarised by a magistrate
    2. Meet the same formal requirements as a will
    3. Be witnessed by the beneficiaries
    4. Be filed at the Probate Registry within 30 days

Answers

Answers: 1. (c) 2. (b) 3. (b) 4. (c) 5. (c) 6. (c) 7. (b) 8. (c) 9. (b) 10. (b)

Further Reading

Wills Act 1837 (received into Nigerian law through reception statutes)

Administration of Estates Law (applicable in various states)

Wills Law, Cap W2, Laws of Western Nigeria

Land Use Act 1978

Banks v. Goodfellow (1870) LR 5 QB 549 — test for testamentary capacity

Agidigbi v. Agidigbi (1996) 5 NWLR (Pt. 449) 420 — customary-law wills

Ukeje v. Ukeje (2014) 11 NWLR (Pt. 1418) 384 — gender-discriminatory succession declared unconstitutional

Zaidan v. Mohssen (1973) 11 SC 1 — application of Islamic inheritance law

Suberu v. Sunmonu (1957) 2 FSC 33 — interplay between customary and Islamic succession

CBN Prudential Guidelines for Mortgage Lending

NAICOM Guidelines on Life Insurance and Mortgage Protection Policies

IMBL Nigeria Certification