The Law of Inheritance is the law and procedure under which beneficiaries become entitled to the property of a deceased person after death. Succession under the Nigerian family law is the process by which one person succeeds another in the occupation of an estate, that is, the process of a person becoming beneficiary entitled to a property or interest in property of a deceased person.
The three modes by which property passes from a person to persons entitled to succeed him are as follows:
a. Testate succession: This is the system whereby a deceased person predetermines his legal successors through the medium of a WILL or testament. Testate succession involves the making of a Will wherein the maker who is the testator leaves instructions regarding who succeeds to his estate or inherits his property.
b. Intestate succession: Here, customary rules of succession under various native laws and customs are used to determine, after the death of the deceased, who succeeds to his estate.
c. Administration of Estate: This is also under intestate succession. However, here, there is the intervention of the court through the appointment of certain categories of persons to administer the estate of a deceased person for the benefit of successors that may or may not include the administrator(s) according to the rules set down in Administration of Estate Laws applicable.
The document that Mr. Okutama has in mind is a Will and it is a legal document which contains the declaration of the wishes of a person which states how his property may be disposed upon his death and which takes effect after his death. The Supreme Court in Asika v. Atuanya (2014) All FWLR (Pt. 710) 1251, stated that a Will has two distinct meanings, the first being a metaphysical meaning denoting the sum of what a testator wishes or desires to happen after his death and the second meaning is physical and connotes the document in which the intention is expressed.
For the will that Mr. Okutama wants to make to be valid, Mr. Okutama must possess the requisite capacity. A person is held to possess the requisite capacity if he possesses the following:
a. He must be an adult who is not less than 18 years of age unless he is in actual military service.
b. He must possess a sound mind and memory at the time of making the will. The testator must be able to understand the effect of his wishes as expressed in the will, the extent of the property he is giving out; and whether or not he is giving it to the right persons. The testator must also not suffer from any mental disease that may impair his understanding or suffer from any delusions whatsoever. Banks v. Goodfellow (1870) L.R. 5 Q.B. 549.
c. He must make the Will of his own free will, that is, not subject to any undue influence, coercion or excessive pressure from other persons in making the will. The testator must also not be subject to the fraudulent and deceptive manipulations of other persons in the making of the will.
d. He must know and approve of the contents of the will he makes, that is, he must not be mistaken as to the contents of the will and must not be misled or fraudulently influenced to execute a will. In the Goods of Hunt (1875) LR 3 P & D 250.
There are different types of Wills depending on the legal jurisdictions in which they operate. The different types of will are:
a. Statutory Will: which is one made in accordance with the provisions of the regulatory laws for wills making in any jurisdiction.
b. Privileged Will: is a will which is not subject to the usual rules for making wills due to some special circumstance. Such a will is valid even though it does not comply with the formal requirements of the Wills Act in terms of form. The right to make a privileged Will is conferred on any soldier in actual military service and any mariner and airmen on actual military service by Section 11 of the Wills Act and extended by the Wills (Soldiers and Sailors) Act.
c. Conditional Will: is one wherein a testator states that he intends the will to take effect only when some specified condition has been satisfied. Unless and until the specified condition occurs, the will cannot take effect. In the Estate of Thomas (1939) 2 All E.R. 567.
d. Nuncupative will: This is an oral statement directing how property is to be distributed after the death of the maker. A nuncupative will is perfectly valid under customary law, provided that it is made before credible witnesses. Such will conveys the verbal directives of the deceased on how his estate is to be shared and this has a binding force on members of his family. These directives are effected by the elders in conformity with the prevailing native law and custom of the deceased. Except in cases of privileged wills and donation of gifts made orally in contemplation of death (donation mortis causa), oral statements directing how property should be distributed after death have no effect in law.
Yes, Nonye Diri will face the limitation of age. Even though Section 1 of the Wills Act provides that it shall be lawful for every person to devise, bequeath, all property or dispose of, by his will, executed in manner hereinafter required, all real estate and all personal estate which he shall be entitled to, either at law or in equity, at the time of his death, different sections of the various Wills Law provide that no will made by a person under the age of 18 years shall be valid. This disables Nonye Diri from being able to make a will.
However, were Nonye Diri a sailor, or in active military service, he would have been able to make a valid will at the age of 17. This is because by the provisions of the Wills (Soldiers and Sailors) Act, persons below 18 years are permitted to make wills provided that they are sailors or are in active military service in any branch of the armed forces.
No, the will made by Otunba Daniel Adegbose is not valid. This is because a the signing of the will by the testator is required to be in the presence of at least two witnesses who will attest to the fact that the testator signed the will, and also, each of them signing it in the presence of the other. Eze Amadi and Mrs. Victory Nze never attested to nor signed the will of Otunba Daniel Adegbose, therefore the will is invalid.
A will is required by law to be in the prescribed form which according to Section 9 of the Wills Act is:
a. The will must be in writing.
b. It must be signed by the testator or by someone else upon his instruction or direction on his behalf, in his presence, at the end or foot of the will.
c. The signing of the will or the acknowledgement of his signature by the testator must be done in the presence of at least two witnesses who are present at the same time to see the testator sign the will or acknowledge his signature.
d. Each witness must attest and sign the will after the signature of the testator in the presence of the testator.
The will is not valid. This is because in law, where a testator or testatrix makes a will and thereafter contracts a statutory marriage, the will earlier made is automatically revoked whether or not the testator intended the marriage to revoke the will. Section 18, Wills Act.
The rule is premised on the fact that the testator has an obligation to cater for the needs of the new family as well as the old one. The only exception to the rule as applied in Nigeria is a situation where the will was made in furtherance of a power of appointment to appoint property, which if not exercised would, by default of appointment pass the property to the testator’s heir, executor or successors in title.
This is not true. By Section 18 of the Wills Act, every will made by a man or woman is revoked by his or her subsequent marriage under the Act. However, the Supreme Court held in the case of Jadesimi v. Okotie-Eboh (1996) 2 NWLR 128, that the marriage contemplated under Section 18 of the Wills Act cannot conceivably include a subsequent statutory marriage between a man and a woman who prior to the statutory marriage were already validly married and living together as husband and wife under customary law when the will was made.
From the foregoing, where a will is made by a testator during the subsistence of a customary law marriage and the testator subsequently marries the wife of the customary law marriage under the Act, the will made will not be revoked by the marriage under the Act, because the subsequent marriage is between the same parties.
The marriage which can revoke or invalidate an existing will as contemplated under Section 18 of the Wills Act is marriage under the Act, that is, marriage between a man and a woman, who were of single status at the time of the marriage and therefore possessed the legal capacity to contract a marriage under the Marriage Act. Jadesimi v. Okotie-Eboh (1996) 2 NWLR 128.
There are four major ways by which a testator may revoke a will. They are as follows:
a. By making a superseding will: By law, an existing will can be revoked by a will made later in time by the same testator, provided that the later will is executed in the same manner as the earlier one. The testator must not expressly state that the later will revokes the former, the fact of making another will, not a codicil to an existing will, is enough to imply a revocation and particularly so where the terms of both wills are inconsistent or different. Section 20, Wills Act.
b. Intentional Revocation: This is where there is animus revocandi, that is, intention to revoke. A testator can revoke a will by expressly stating in writing that he has revoked his will and executes or signs the document in the same manner as the will, that is, in the presence of two witnesses who must also sign as witnesses. Section 20, Wills Act.
c. Destruction: A testator may also revoke his will by burning, tearing or otherwise destroying the will by himself or by some person, in his presence and by his direction, with the intention of revoking same. Destruction without the requisite intention to destroy or revoke the will makes revocation invalid and the will, shall remain very much alive in the face of the destruction. Section 20, Wills Act.
d. By subsequent marriage: Where a testator makes a will and thereafter contracts a statutory marriage, the will made is automatically revoked. The will stands revoked after a subsequent marriage whether or not the testator intended it to be revoked or not. Section 18, Wills Act.
Section 3 of the Wills Act provides that subject to any customary law relating thereto, it shall be lawful for every person to devise, bequeath or dispose of, by will, executed in the manner required by law, all real estate and all personal estate which he shall be entitled to either at law or in equity, at the time of his death which, if not so devised, bequeathed and disposed of would devolve upon the heir at law of him, or if he became entitled by descent, of his ancestor or upon his executor or administrator. This provision imposes customary practices and traditions relating to succession on the freedom of a testator to dispose of his estate as he pleases.
The legal effect and consequence is that a provision which neglects or intentionally disregards customary practices relating to the property reserved exclusively to certain persons or other inalienable property would be set aside. In the case of Idehen v. Idehen (1991) 6 NWLR (Pt. 198) 382 and Lawal-Osula v. Lawal-Osula (1995) 9 NWLR (Pt. 419) 259, the Supreme Court held that under Bini customary law of inheritance, only the first surviving son of a Bini man who performs the final burial rites of his deceased father is entitled to the dwelling house known as Igiogbe of his father, thus the Igiogbe could not be devised to any other person except the first son in compliance with the Wills Act.
Yes, this line of argument will hold in court. It is the law that a testator does not have the right to dispose by will, family land that has not been partitioned. Unless a family land has been partitioned, any purported attempt to devise it by will is invalid. Oke v. Oke (1974) 9 NSCC 148.
Obtaining letters of administration becomes necessary where a person died without making a will disposing of his estate. When this occurs, it becomes necessary to appoint personal representatives to manage the deceased’s estate and distribute same among beneficiaries and creditors, if any, according to the principles laid down in the various statutory laws.
No, the Administration of Estates Law does not automatically apply in all cases of intestacy. It only applies to the estate of a deceased intestate who was married under the Marriage Act. It does not apply to the estates of persons who are married under customary law or under statutory law outside the shores of Nigeria. It does not also apply to a non - Nigeria unless he was domiciled in the relevant State or the property owned by the deceased intestate non-Nigerian is landed property situate in the State where the law applies because of the lex situs rule.
For the Administration of Estates Law to apply to a deceased’s estate, the following conditions must be present:
a. The deceased intestate must be a person who was ordinarily subject to customary law, but deliberately chose to remove himself from the jurisdiction of customary law by contracting a marriage under the Marriage Act.
b. The deceased must have died intestate and has been survived by a wife or husband and children of a marriage which was contracted under the Act. Where the conditions above are present, the provisions of the Administration of Estates Law will govern the distribution of the estate provided that the nature of the property to be distributed is such that the deceased could have disposed of it by will if he had chosen to do so, irrespective of a customary law rule to the contrary, if there is any part of the estate to which the ownerless rule would apply and which the State would ordinarily have a right of claim, that part of the estate will not be claimed by the State, rather, that part of the estate will be distributed according to the rules of customary law and any real property which cannot be disposed by will due to customary law requirements must be distributed in accordance with the rule of customary law. Section 57 (2), Administration of Estates Act.
In distributing the estate of a deceased intestate to which the Administration of Estates Law applies, by Section 49(1) of the Administration of Estates Law, the following rules apply:
a. Where the only survivor of the deceased is a spouse, he or she is entitled to the deceased’s residuary estate which in effect comprises the entire property of the decease since no other distribution is made.
b. Where the survivors of the deceased include the spouse and children, the children are entitled to two thirds of the residuary estate to be held on trusts for them, while the spouse is entitled to all the personal chattels of the deceased, a net sum of money equivalent to the value of one third of the residuary estate free of death duties and costs and a life interest in one third of the residuary estate less the personal chattels and thereafter to be held on statutory trusts for the benefit of the children of the estate.
c. Where the survivors of the deceased include the spouse and the parents and or siblings of full blood, but without a child, the mode of distribution is as follows:
The spouse is entitled to all the personal chattels of the deceased.
The spouse is also entitled to the net sum of money equivalent to the value of one third of the residuary estate free of death duties and costs.
The spouse is also entitled to the absolute interest in half of the residuary estate less the personal chattels.
The parents of the deceased are entitled to the other half of the residuary estate less the personal chattels. If no parent survives the intestate, the siblings are entitled to the half on statutory trusts for them.
d. Where the survivors of the deceased are children or a child, such children are entitled to the deceased’s residuary estate to be held on statutory trusts for them.
e. Where there are no survivors at all, the estate of the deceased goes to the state as bona vocantia in which case, the estate would devolve under the rules of customary law to those entitled.
The rule in Cole v. Cole governs intestate succession in cases where the deceased contracted a valid statutory or Christian marriage outside Nigeria and by implication, outside the ambit of the repealed Section 36 of the Marriage Act of 1914, which governed the distribution of the estate of the deceased intestate married under the Act. The rule establishes that the very act of contracting a statutory marriage outside Nigeria removes the parties to the marriage from within the ambit of customary law in succession matters. Cole v. Cole (1898) 1 NLR 15. Though the decision in Cole v. Cole has been severely criticized over the years, it appears to be the law that governs intestate succession in the Northern and Eastern parts of Nigeria where there are currently no statutory laws on intestate succession on the same pedestal as the Administration of Estates Law.
The prevalent system of succession in customary law is intestate succession. Persons whose lives are governed by customary law have their estates distributed under the rules of the particular customary law to which they were subject to while alive, upon dying intestate.
Intestate succession among the Yorubas of Western Nigeria is based on customary rules that are non-discriminatory. This means that all the children, both legitimate and illegitimate, male and female of Olowu Aybara Olalekan are entitled to his estate irrespective of their sex. Salami v. Salami (1957) WNLR 10. The eldest son who is referred to as Dawodu will be saddled with the responsibility of managing the estate of the deceased. Lewis v. Bankole (1909) 1 NLR 82. The method of distribution of property is based on two systems which are:
a. Ori-Ojori (Per capita): Under the Ori-ojori system, the property of the deceased is shared among the children per child.
b. Idi-Igi (Per stripes): Here, the property is distributed on the basis of the number of wives of the deceased irrespective of the number of children each wife has.
Primogeniture is the predominant system of intestate succession under the customary laws of the Igbos of Eastern Nigeria. The eldest male child of an Igbo family known as the Okpala is the major channel of succession. When a man dies, his own eldest son succeeds to his estate with respect to his personal and disposable property. The eldest son also takes the place of his deceased father on the succession line with respect to the extended family property.
The following rules apply to the distribution of the estate of a deceased Igbo intestate:
a. The eldest surviving son succeeds exclusively to his father’s clothing and furniture, the dwelling house, that is, the obi and a separate piece of land exclusively as the right of the first-born son.
b. All monies are property for all the sons of the deceased jointly and the sons also inherit their father’s farming implement, tools and livestock. They also succeed jointly to the remaining lands and houses left by their father.
c. Where there are no sons, the right of succession falls to the eldest brother of full blood of the deceased.
d. Females, who are either widows or daughters have no right of inheritance with respect to real or landed property. They however have the right to be cared for by successors of their father until they marry or remarry as the case may be.
Succession in Northern Nigeria is predominantly based on Muslim religious law set out in the Quran. The estate of a deceased Muslim intestate is usually shared among those entitled to succeed him under the law. The sons of a deceased Muslim get equal shares while the females have half a share each. Under Moslem law, distribution of the estate of a deceased intestate is based exclusively on per capita system of distribution.
The rules of distribution of the estate of a deceased intestate of Northern Nigeria are as follows:
a. Widows are entitled to one quarter of the estate, where there are no children or grandchildren, and one-eighth if there are.
b. Surviving husbands inherit half the estate of deceased wives if there are no children and one quarter if there are children.
c. One daughter inherits half of the estate and more than one daughter get two thirds jointly in equal shares.
d. An only son gets the whole estate after settling existing liabilities.
e. Where there are other children, they jointly inherit the entire estate.
Probate refers to the legal process in which a will is reviewed to determine its validity and authenticity. Probate practice deals with the administration of the estate of a deceased person after his death. It involves, essentially, the grant of probate and letters of administration as the case may be.
There are three categories of grants under probate practice:
a. Grant of probate: This occurs where the deceased dies leaving a valid will which names executors of the estate of the deceased. The court grants probate to the executors as named in the will to give effect to the wishes of the testator.
b. Grant of letters of Administration with the Will annexed: Here, there is the existence of a valid will but the will does not appoint any executors, or the executors appointed in the will have died prior to the time application is made for probate. In other situations, it could be that the executors are not willing to serve in that capacity. The court in the exercise of its discretion grants letters of administration to persons who are interested in carrying out the wishes of the testator.
c. Grant of letters of administration without a will: This occurs where the deceased has died without making a will and thus has no executors to administer his estate.
The person who is legally entitled to the grant of probate is the executor. The High Court Rules of various states the order of priority to determine who is entitled to the grant of probate is stated. The order of priority for the grant of probate is thus:
a. The executor.
b. Any residuary legatee or devisee holding in trust for any other persons.
c. A residuary legatee or devisee for life.
d. A residuary legatee or devisee whose legacy is vested in interest
e. The ultimate residuary legatee or devisee including one entitled on the happening of a contingency, or where the residue is not wholly disposed of by the will.
f. A person entitled to share in the residue not disposed of by the will or his legal representative.
g. A legatee or devisee entitled to a share in the estate disposed of.
h. A specific legatee or devisee or creditor, a personal representative of any such person or where the estate is not wholly disposed of by will, any person who, notwithstanding that the amount of the estate is such that he has no immediate beneficial interest in it, may have a beneficial interest in the event of an accreditation to it.
i. A specific legatee or devisee entitled on the happening of a contingency, or a person having no interest under the will of the deceased who would have been entitled to a grant if the deceased had died wholly intestate.
Probate is usually granted after an application has been made to the Probate Registrar of the High Court of a State by an interested person, either in person or through his legal practitioner. The time within which probate is granted varies according to the provisions of the various High Court Civil Procedure Rules of each state.
Double probate arises where a person has applied for a grant of probate after a grant has earlier been given to an executor. The first grant is referred to as the original grant whilst the second grant is the second or double probate. Double arises where one of the executors is not available or is not ready to take up the grant immediately, neither is he willing to renounce the grant for one reason or the other, the executor may apply for a double probate. It also arises where the executor being of full age who was abroad when the other executors applied for probate, is back and applies for probate and in a situation where one of the executors of the will is a minor at the time the initial grant was made to others, such an executor can apply for a double grant upon attaining the age of maturity.
Where many executors who are adults have been appointed in a will and the others are minors, a grant of probate will be made to the adults immediately whilst the minors will be given a grant of double probate once they reach maturity.
A letter of administration is a document given by the court to a person known as the administrator or administratrix giving such person the right to access or lay claim to the deceased’s funds or property, it is required where a person has died without making a will regarding his property, or where a will made only applies to a part of his property and not the entire property. A letter of administration when granted entitles the administrator to manage the estate of the deceased by realizing and settling all debt and liabilities of the deceased and then distributing the leftover amongst the deceased’s family either in accordance with customary law where the deceased was subject to it during his lifetime or according to the order of the priority stipulated in the Administration of Estates Law.
The following are the powers of a personal representative:
a. Power to institute actions: A personal representative has the power to institute actions in order to protect the estate of the deceased. Similarly, any action against the deceased’s estate must be brought against the personal representatives.
b. Power to invest: Personal representatives have the power to invest the property of the deceased person.
c. Power to postpone distribution: Personal representatives have the power to postpone distribution of the estate of the deceased, though the usual practice is for personal representatives to commence the distribution of the estate of the deceased after death. The power of a personal representative to postpone the distribution of the estate of a deceased is discretionary and must have been done in the best interest of the deceased. This power is subject to the order of court which could be to authorize the immediate release of funds to the beneficiaries. Remi Okunowo v. Chief Funmilola Okunowo (2001) 2 LHCR (Pt. 9), 56.
d. Power of Sale: A personal representative has the power to sell, lease out or mortgage the property of the deceased to raise money. This may be done where funds are needed to administer the estate. The personal representatives in giving effect to the power of sale must all execute the deed of conveyance in respect of the property.
e. Power to appoint trustees for infant beneficiaries: Personal representatives have the power to appoint trustees for infant beneficiaries who are still minors. This power may also be contained in the will.
f. Power to continue the business of the estate: Personal representatives have the power to continue the business of the deceased’s estate so far as this is provided for in the will.
g. Power to insure property of the estate: Personal representatives are empowered to insure property of the deceased unless there is an express provision to the contrary.
The following are the duties which are expected of a personal representative:
a. Duty to prove the will: A personal representative is duty bound to ensure that the will is proved and this is carried out when a personal representative applies for probate. A personal representative in ensuring that the will is proved has to distribute the estate of the deceased among all the beneficiaries identified in the will or under the rules of intestacy.
b. Duty to collect assets of the estate: The primary duty of a personal representative is to protect the estate in a manner which is consistent with the wishes of the deceased. A personal representative is expected to open the estate, identify the property, collect the assets of estate, prepare an inventory of the property, pay various expenses and claim against the estate and eventually distribute the property to the appropriate persons.
c. Duty of care: The duty of a personal representative must be carried out with care in relation to creditors and beneficiaries. Every action must be for the benefit of the beneficiaries and no conflict of interest must arise. A personal representative must keep estate accounts showing the value of property as at the deceased’s death and the assets that are collected in thereafter.
d. Duty to pay liabilities: A personal representative has the duty to pay for funeral, testamentary and administration expenses. These entail the cost of obtaining grant of letters of administration, the cost of realizing the deceased’s assets and other administrative expenses such as solicitor’s fees and all other sundry fees.