An heir is anyone who is entitled to inherit from a deceased person who died without leaving a last Will or Testament or other estate plan in care of a beneficiary. The status of an heir is very important in not only settling administration and distribution of an estate, but in determining who might be entitled to challenge or contest a Will where the deceased left one.
What is Succession?
Succession is the process of inheriting a title, office, property or real estate. The right of a person over his property, whether real or personal, survives his death and devolves on his personal representatives by operation of law, whether legally or customarily. These personal representatives may either be executors or administrators.
Executors are appointed where the deceased died “Testate” (i.e. where the deceased left a Will behind). Administrators are appointed where there is no Will through applying and obtaining Letters of Administration at the Probate Registry of a State. The law governing succession in Nigeria is generally divided into two broad categories as follows:
Testate – Written Wills and Nuncupative Wills,
Intestate – Non Customary Intestate and Intestate succession under Customary laws.
A Testator is a person who has made a Will. Halsbury’s Laws of England, 3rd Edn. Vol. 3a, p. 842 defines a Will or Testament as:
“The declaration in a prescribed manner of the intention of the person making it with regards to matter which he wishes to take effect upon or after his death”.
However, a Will cannot be of any effect until it is activated by the death of the Testator. In other words, the benefits conferred by a Will cannot take effect before the death of the Testator. In Nigeria, a statutory Will cannot be valid unless it complies with the rules of English common law as contained in the English Wills Act, 1837 or Wills Law 1959. See the cases of Thomas v. De Souza (1929) 9 NLR 81, Lawal v. Younan & Ors. (1961) 1 All NLR 245.
Writing is not an intrinsic feature of a customary law. However, where the written customary law Will was not drafted by a Solicitor, it must be proved to be genuine. To prove its validity, a party needs to show that the Testator was an adult, knew what he was doing and its effect and had made the Will in the presence of one or more adult witnesses. See the case of Shaw & Ors v. Kehinde & Anor (1947) 18 NLR 129. E.I Nwogugu, op. cit. at p. 309, Margaret C. Onokah op. cit 302-303.
A nuncupative Will is an oral declaration by the owner of the property of who is to have specified items of such property on his death. See the case of Ayinke v. Ibidunni (1959) 4 NWLR F.S.C 280, at pp. 281-282.
A nuncupative Will may be invalid if made in secret. Thus, a nuncupative will must be voluntarily and orally by a person in sound mind, in expectation of death in the presence of responsible and disinterested persons. An executor or executors are appointed by the deceased person to administer his estate upon his demise.
In Nigeria, there is no uniformity of applicable laws relating to Wills. The Nigerian legal system can best be described as a combination of Nigerian legislation, English Law, Customary Law (including Islamic Law) and judicial precedents.
Where a person dies without having made a Will or if the Will is invalid, then that part is dealt with as if there was an intestacy. The rules for division of property on intestate are as follows:
If the deceased is survived by:
Spouse/civil partner but no children – spouse/civil partner gets entire estate.
Spouse/civil partner and children – spouse/civil partner gets two-thirds, one third is divided equally between the children (if a child has already died his/her children take a share),
Parents, no spouse/civil partner or children – divided equally or entirely to one parent if only one survives,
Children, no spouse/civil partner, divided equally between children,
Brothers and sisters only – shared equally, the children of a deceased brother or sister takes the share,
Nieces and nephews only – divided equally between those surviving,
Other relatives – divided equally between nearest equal relationship,
No relatives – the state.
Intestate succession basically involves the applications of three systems of laws, which are as follows:
The common law,
The Administration of Estate Laws of various States,
Customary Laws and traditions of the local people.
See the case of Zaiden v. Zaiden (1974) 4 UILR 283.
Concept of Real Estate Distribution:
The administration of an estate is generally the means of distributing the assets (estate) of a deceased person among his family, friends and objects of his regard. This can be done either where the person died leaving behind a Will (testate) or without a Will (intestate).
There are various means by which a deceased’s estate can be administered, including under the Wills Act/Law, Customary Law and Islamic Law. The laws that govern the practice and procedure for the administration of estate are a combination of received English Laws (under the English Common Law) and State Laws (enacted by each State’s legislative assembly) applicable within each State.
In Nigeria, there are three (3) main forms of forced heirship or limitation to the general right of a Testator to dispose of his assets as he deems fit in the various Wills Law:
Under Customary Law: The limitation placed on the right to dispose assets is couched in various ways by the different Wills Laws. A good example is section 3 (1) of the Wills Law of Western Region, 1959 which states:
“Subject to any customary Law relating thereto, it shall be unlawful for any person to devise, bequeath or dispose of by his Will, executed in the manner hereinafter required, all real estate which he shall be entitled to either at law or in equity”.
By the above provision, the freedom of the Testator to dispose his property is fettered to accommodate customary laws and the courts have upheld such customary restrictions in several cases. See the case of Oke v. Oke (1974) 3 SC. 1, Idehen v. Idehen (1991) 6 NWLR (Pt. 198) 382. Thus, the Testator (under Bini customary laws) cannot devise his igi-ogbe (property where the Testator lived and died). There are also similar restrictions in the Wills Laws of Lagos, Kaduna, Plateau, Kwara and Jigawa States.
Limitation under Islam: Islam also places a restriction on the quantum of the Testator’s estate that can be disposed by Will. The Testator cannot give preferential treatment to or disinherit any of the children. See the case of, Adesubukan v. Yinusa (1971) All NLR.
Reasonable provision for dependents: The Wills Laws of some States (Lagos, Oyo and Abia have provisions within their laws that permit named persons who were being maintained either wholly or partly by the deceased immediately before the death of the deceased to apply to court for reasonable provision to be made for them under the estate of the deceased, even contrary to the desires of the Testator as expressed in the Will.
These limitations to the Testator’s rights infringe on certain rights guaranteed by the Constitution of the Federal Republic of Nigeria, which recognizes the right of the individual to acquire and own property in any part of the country (with corresponding and integral rights to alienate or otherwise dispose of such property). The limitation equally questions freedom of expression that a Testator exercises is making a Will.
Marital Property: Property acquired by either spouse during the course of a marriage is considered marital property. Under customary law, only men have the right to own land. Sharia law does not allow women access to real property. Under customary law, a widow cannot inherit marital property. However, a couple married under the Marriage Act, can own property in their individual names or jointly. See the case of Chinweze v. Mazi (1989) 1 SC (Pt. 11) 33 at 46.
However, property inheritance by females under the Nigerian Administration of Estate Laws, especially when it comes to a wife is practically seen as a “taboo”. In most customs and traditions, females and most especially wives are distributed as part of a deceased person’s asset. Not until recently, did the court condemn denial of female inheritance to property and give credence to a female child’s right of inheritance of a deceased father’s property.
In Ukeje v. Ukeje (2014) 11 NWLR (Pt. 1418) 384 on the constitutionality of Igbo Customary Law, the Supreme Court has voided the Igbo law and custom, which forbid a female from inheriting her late father’s estate.
Can a wife inherit late husband’s property?
The law of succession involves the transmission of the rights and obligations of the deceased person in respect of his estate to his heirs and successors. It equally deals with the rules governing the administration of the estate by the personal representatives of the deceased person including state participation in respect of the real estate situate within its territory and personal estate of the deceased person subject to its jurisdiction. Succession may be testate or intestate. Where a deceased person made a will, he is said to have died testate.
Where a deceased person did not make a will, he is said to have died intestate.
In customary law, this distinction is of marginal importance because under customary law, intestacy is the rule. The only consideration of a testate succession under customary law is a nuncupative will, also known as death bed declaration. Inheritance issues are varied across the length and breadth of Nigeria. The law of succession and inheritance is a reflection of the legal pluralism inherent in Nigeria.
In general, in cases of inheritance of property of a person who dies intestate in Nigeria, the personal customary law of the deceased, that is customary law to which the deceased was subject governs the distribution of his estate. The system of customary inheritance varies from one ethnic group to the other. The class of people who should benefit from intestate succession and the share of such beneficiary are not free from problems.
It is often stated that most married men die before their wife (wives) and that apparently leaves the estate of the man in care of the wife and basically his offspring, before the incursion of extended family and customary inheritance upon his demise. However, most customs do not allow a wife to inherit the property of the late husband. But, in the recent case of Anekwe & Anor v. Nweke (2014) LPELR-SC.129/2013, a surviving spouse is invariably the first in line to inherit if the decedent was married and she shares the estate with his living children. In Anekwe & Anor v. Nweke (2014) LPELR-SC.129/2013, the Supreme Court held:
“…I hasten to add at this point that the custom and practices of Awka people upon which the appellants have relied for their counter claim is hereby out rightly condemned in very strong terms. In other words, a custom of this nature in the 21st century societal setting will only tend to depict the absence of the realities of human civilization. It is punitive, uncivilized and only intended to protect the selfish perpetration of male dominance which is aimed at suppressing the right of the womenfolk in the given society. One would expect that the days of such obvious differential discrimination are over. Any culture that disinherits a daughter from her father’s estate or wife from her husband’s property by reason of God instituted gender differential should be punitively and decisively dealt with. The punishment should serve as a deterrent measure and ought to be meted out against the perpetrators of the culture and custom. For a widow of a man to be thrown out of her matrimonial home, where she had lived all her life with her late husband and children, by her late husband’s brothers on the ground that she had no male child, is indeed very barbaric, worrying and flesh skinning. It is indeed much more disturbing especially where the counsel representing such perpetrating clients, though learned, appear comfortable in identifying, endorsing and also approving of such a demeaning custom. In a similar circumstance as the case under consideration, this court in Nzekwu V. Nzekwu (1989) 3 SCNJ page 167 held amongst others and ruled “that the plaintiff had the right of possession of her late husband’s property and no member of her husband’s family has the right to dispose of it or otherwise whilst one is still alive… My noble Lords, the custom pleaded herein, and is a similar custom in some communities wherein a widow is reduced to chattel and part of the husband’s estate, constitutes, in my humble view, the height of man’s inhumanity to woman, his own mother, the mother of nations, the hand that rocks the cradle. The respondent is not responsible for having only female children. The craze for male children for which a woman could be denied her rights to her deceased husband or father’s property is not justified by practical realities of today’s world. Children, male or female, are gifts from the Creator for which the parents should be grateful. The custom of Awka people of Anambra State pleaded and relied on by the appellant is barbaric and takes the Awka community to the era of cave man. It is repugnant to natural justice, equity and good conscience and sought to be abolished…per OGUNBIYI, J.S.C. (Pp. 36-37, paras. A-B)”.
A wife has a right to inherit property from their deceased fathers and husbands and from any other person who devises property to them under their will. This right is guaranteed by section 43 of the Constitution which provides that every citizen of Nigeria shall have the right to acquire and own immovable property anywhere in Nigeria, while Section 42 of the Constitution prohibits discrimination on the basis of sex.
The courts have consistently protected the property rights of women and condemned customs and practices which tend to perpetuate discrimination against women. The Court of Appeal condemned the customary practice which discriminates against women as repugnant to natural justice, equity and good conscience in the locus classicus case of Augustine Nwafor Mojekwu v. Caroline Mgbafor Mojekwu (1997) 7 NWLR 288, under which the Olu-Ekpe custom of Anambra State, provides that only male children can inherit their father’s property. When a man dies leaving no male child behind, his brother inherits his property and if this brother dies, his own male child inherits the property. The court stated as follows in Mojekwu v. Mojekwu (supra) as follows:
“I will have no hesitation in declaring such customary law which discriminates against female children in terms of inheritance to be repugnant to natural justice, equity and good conscience… I have no difficulty in holding that the native law and custom of Umuanaga Awka which discriminates against female children of the same parent and favours the male child who inherits all the estate of their father to the exclusion of his female siblings to be repugnant to natural justice, equity and good conscience”.
Also, a woman who has no male child can still inherit her late husband’s property; indeed a woman without children can still inherit from her deceased husband. Female children can also inherit from their late father, and they cannot be discriminated against on the basis of sex. Thus, a custom which forbids a woman from dealing in land or to own movable and immovable properties in Nigeria will be declared invalid by the courts.
When a woman is deprived of the right to acquire property by inheritance by reason only of her being a woman, that amounts to discrimination and the law would not permit it. Thus, in the case of Motoh V. Motoh (2010) LPELR-8643 (CA), the courts have held that female children can also inherit from their late father and they cannot be discriminated against on the basis of sex.
So much so, in the case of Anekwe & Anor v. Nweke (2014) LPELR-SC.129/2013, have held that a wife can inherit the property of the late husband and have held in favour of women in property inheritance while condemning the issue of discrimination against women, when per Nikki Tobi, held as follows:
“Day after day, month after month and year after year, we hear of and read about customs, which discriminate against the womenfolk in this country. They are regarded as inferior to the menfolk. Why should it be so? All human beings, male and female, are born into a free world and are expected to participate freely, without any inhibition on grounds of sex; and that is constitutional. Any form of societal discrimination on grounds of sex, apart from being unconstitutional, is antithesis to a society built on the tenets of democracy, which we have freely chosen as a people….On my part, I have no difficulty in holding that ‘Oli-ekpe’ custom of Nnewi, is repugnant to natural justice, equity and good conscience…”
Accordingly, section 42 of the 1999 Constitution of the Federal Republic of Nigeria condemns discriminatory actions of any kind fellow citizens, especially women. Section 42 provides as follows:
“42 – (1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such person:-
Be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religion or political opinions are not made subject; or
Be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, place of origin, sex, religion or political opinions”.
The courts have seriously frowned at disinheriting a woman from the deceased husband’s estate upon his demise as a result of native laws and customs under property inheritance. It has been held to flagrantly violate the provisions of section 42 of the 1999 Constitution of the Federal Republic of Nigeria and repugnant to natural justice and good conscience.
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