The experts at Sceptre Law can help you with your estate planning needs. We understand the importance of not allowing your hardearned assets go to waste in the event of a person’s demise. In view of the fact that only death and taxes are certain, we provide advise aimed at structure and certainty in estate planning and management, so that in the event of demise, your loved ones are more than adequately catered for. This is why we offer expert Estate planning advisory services on drafting of wills, setting up of private trusts etc

Estate Planning is about planning for the disposition of all assets owned by a person on his/her demise. Estate Planning includes using any instrument to ensure that your assets are settled into your Estate in accordance with your instructions. It also covers management of personal affairs in case of incapacity.  Two major estate-planning instruments are Wills and Trust.

Wills

A Will is a legal declaration by which a person appoints one or more persons called Executors to manage his/her Estate and support the distribution of his/her assets upon his demise.

WILLS AND PROBATE

The firm provides guidance on the drafting of different types of wills which match the Client’s needs, execution of a will, alterations, interlineations and obliterations of a will, appointment of executors and trustees, proving of a will and grant of probate, where there is a will. We guide our clients through the process of obtaining letters of administration where there is no will.

We have an experienced team who understand who can take under a will (beneficiaries), revocation and revival of a will, the duties, remuneration, liabilities of executors & trustees, power of the beneficiaries

We draft the required specialized documentation where a person dies without a will, where we facilitate the obtaining of letters of Administration or the revocation of such grants.  Our clients rely on our expertise to advice on who can make a will, relevant information to prepare wills, of due executions of wills, of witnessing and attesting wills and of proving wills and codicils etc.   

A will takes effect at death and upon being read, any executor appointed therein derives his authority from the will. The court has held in a plethora of cases that “it does not have the legal optics through which to look at a will until the will is proved in the form provided by law”. Proving of a will is called the grant of probate. Proving a will can be done in two forms namely: common form-(where there is no opposition as to the validity of the will or the applicant’s right and no caveat has been lodged) or the Solemn form – where there is a challenge to the validity of the will or the applicant’s right. Proving a will in Solemn form is usually done in open court and the court makes a judgment for or against the challenge. However in common form, the executors apply for a set of application forms, which once filled and signed, will be submitted with the requested accompanying documents that will include the photographs, means of identification of the Executors etc.  Subsequently, a Bank certificate is issued to be presented to all the banks to disclose money, shares/stock of the deceased person. Where the Estate includes properties, we work with the Valuation Unit of the Registry to inspect the properties,  obtain  fair valuation assessment and raise assessment of estate duties/taxes on behalf of our clients. We also work with the Probate Registry through the verification process, after which payment is made. The Executors will be asked to attest that they shall do as expected by the Will; and sign against their names as stamped on the original Will. This is called marking of the will. A Grant of Probate is then prepared and signed and sealed by the Probate Registrar and issued to the applicant (usually the executor).

Where the deceased person did not write a Will, we can on their beneficiaries’ behalf apply for letters of administration. The Administration of Estates Law of Lagos State lists the order of priority of persons who could be granted letters of Administration as follows; spouse of the deceased, children of the deceased, parents of the deceased, siblings of full blood or their children, siblings of half blood or their children where the half siblings died during the deceased’s lifetime, grandparents, uncles and aunts of full blood or their children and creditors of the deceased. Where none of these groups apply, then the Administrator General can apply. 

We have successfully handled cases where a testator’s mental capacity is challenged and proved the sound mind of a testator by proffering evidence that the instructions were written by the testator himself through medical evidence by doctors who had examined the testator, written correspondences of the testator during the time the will was made and witness testimony on testator’s habits and activities during that time.

We also understand and often guide our clients through the legal requirements to ensure their actions do not contradict their instructions, as so often happens in cases where a beneficiary in a will is also the witness who attests the will. We advise our clients on the technicalities involved in recognition of a will under the law, such as the provisions of Section 8 of the Wills Law of Lagos state, to the effect that a person attesting a Will who benefits under the same Will loses any property of benefit assigned, except where the benefit in the will is confirmed by another will or codicil which is not attested by the beneficiary. The nullity of the benefits also extends to the witness’ spouse.

We advise on laws and regulations guiding the restrictions on Testamentary freedom i.e. the absolute and unfettered right of a person to freely dispose his estate as he sees fit. Section 2 of the Wills Law of Lagos State provides that where a wife or children survive a person, they can apply to the court within 6 months for an order on grounds that the disposition in the Will does not make reasonable financial provision for the applicant. The Wills Law of Kaduna, Abia and Oyo also has similar provisions; but extend to parent, brother, sister of the deceased who were maintained by the deceased before his death.

We also understand and can guide our clients on Legacy and Device. Legacies are gifts of movable or personal property effected by Will. Devices are gifts of immovable assets or interest in land. We advise on the different types of legacies most relevant to our clients; Specific legacy, General legacy, Demonstrative legacy, Pecuniary legacy, Absolute legacy, Alternate legacy, Accumulated legacy, Contingent legacy, Modal legacy, Residuary legacy, Conditional legacy and Annuity, their differences, advantages of each and the circumstances where legacies or gifts may fail (i.e. Ademption, Lapse, Abatement) and how to circumvent those instances.

Where a Will has been read and probate obtained, the grant may be resealed to make it effective within different states in Nigeria where the deceased had property. By Order 55 Rule 69 of the High Court of Lagos State Civil Procedure Rules 2004, the Probate Registry will require that an application for resealing be made by the person to whom the grant was made or by any person authorised in writing to apply on his behalf. The relevant  probate taxes are paid in the different states where the deceased had left landed property.

The firm undertakes on behalf of its clients that Estate duty has been paid in respect of the estate, and in the case of letters of administration, that security has been given in a sum sufficient to cover the property, in the State to which the letters of administration relates, to satisfy the court to grant an order re-sealing a probate or letter of administration. 

MAKING A WILL WHEN YOU HAVE ASSETS ABROAD

The firm also has considerable and far reaching ability in dealing with cases where a Client owns assets situated abroad or bank accounts with a foreign bank or even shares in an overseas company. In these cases, we provide guidance depending on the nature of the assets and the country in which they are situated. We understand that some countries have forced heirship succession rule, which may conflict with a testator’s wishes in relation to disposition of property. We advise on the pros and cons of a Foreign Will (a second Will), where and if needed. We also ensure that the Wills are consistent with each other and does not have the unintentional effect of revoking any Will made earlier by our client.

We also advice on whether there are any deadlines in overseas jurisdictions for filing documents or making inheritance tax payments, who has the authority to act in relation to the foreign assets, fluctuation in the exchange rate which would affect the value of the asset, the most cost-effective way of repatriating the foreign assets in compliance with the laws of the foreign country either by obtaining a grant of probate or resealing a foreign grant which provides executors with the authority to administer and ultimately distribute assets to beneficiaries of the estate.

TRUSTEE

A Trust is relationship mostly created by a Will which vests the legal title of the deceased person’s real or personal properties in another, called the Trustee, who holds the legal title on behalf of his designated Beneficiaries. A trustee makes decisions to maintain the estate of the deceased, while it is held in trust, before it is transferred to the beneficiaries. The executor on the other hand, executes the actions in the Will. A trustee can also be an executor. In order for a trust to be valid, there must be an intention to create a trust, clear identification of the subject of the trust and specific beneficiaries.

The breadth of our experience enables us to guide and direct our clients on who has the legal capacity to create a trust, who can be appointed a trustee, liability of a trustee, removal of a trustee, remedies available to an aggrieved beneficiary in event of breach of trust and even appraise the taxation of trusts. A person creating a Trust must have the legal capacity to do so which often includes being a person or group of persons who can hold legal or equitable interest in real property. The yardstick for legal capacity for an individual is being of legal age and sound mind.  Persons who are below legal age can create trusts over legal and equitable interest in only personal property and equitable interest in real property. Furthermore, legal capacity also extends to who can be appointed trustee. To have legal capacity a person must be an adult person of sound mind, or a body corporate authorized to hold a property.

We regularly advise clients on which trust of the two types of trusts there are, that would be most suited to their peculiar circumstance.  A living Trust which is created during a Settlor’s lifetime and takes effect during the lifetime of the Settlor such that the Settlor benefits from the Living Trust while still alive.  A Living Trust covers three aspects of a Settlor’s life: when the Settlor is alive & well, when the Settlor becomes incapacitated and when the Settlor dies. This type of trust ensures that the Settlor’s assets/properties are managed and distributed according to his instructions, while dispensing with court supervision and involvement, while saving expenses and time of the beneficiaries. In this type of trust, the trustees will be named as parties to the trust deed/instrument and the trust is constituted upon vesting of the trust property in the trustees. The major advantage of a Living Trust is that probate is completely dispensed with upon the Settlor’s demise.

On the other hand, there is a Testamentary Trust, which is created as part of a Will and becomes active after the Settlor’s demise. With a Testamentary Trust, properties must go through probate before they become subject to the Trust. In this type of trust, the first trustees are appointed by the testator in the will and upon the death of the trustees, their personal representatives become trustees, except otherwise provided in the Will. This is often created for infant beneficiaries where assets become distributable upon the death of the parents.

Where Trust is a Client’s chosen instrument of estate planning, the firm as Trustees pays all debts and expenses, collects assets payable to the estate or Trust, handles tax issues, manages assets (including selling assets to pay expenses and taxes), invests trust money, distributes income and assets to beneficiaries, render accounts and provides information on the trust property among other things.

Taxation of trusts in Nigeria

The  firm has tax experts that advise on applicable tax laws on Trusts in Nigeria, especially regarding the Part 1 of the second schedule to Personal Income Tax Act whereby  the income of a trust is taxed after the deduction of expenses and beneficiaries’ income have been made to the beneficiaries. The income of the trustee in his personal capacity is also taxable under this legislation.

TAXATION OF THE BENEFICIARY

An essential element of a trust is the existence of a  beneficiary entitled to the trust fund and the income from the trustfund. A beneficiary’s entitlement or income, under a trust, is payable after the deduction of administrative expenses, and such income is taxable in the hands of the beneficiary. A beneficiary’s income is taxable when it arises and is apportioned.

There is no specific statute governing private trust in Nigeria, hence reliance is placed on received English law. However, trust companies and banks are becoming more aware of the importance of having trust structures in place. Some people also prefer to set up trusts in offshore jurisdictions that have more favourable tax regimes, and to avoid local regulations altogether. The firm provides  domestic and international tax advisory services in this regard.