X-Raying the Law Relating to Inheritance in Marriage

Last Will and testament document. sepia toned and vignette effect

X-Raying the Law Relating to Inheritance in Marriage

By Uche Ihediwa

The internecine scramble for the distribution of the property of a deceased person has become a serious societal problem that requires the urgent attention of the church, civil society organizations, Governments at all levels and the custodians of tradition. The struggle over inheritance of property has pitted children against their mother, against each other, nuclear families against rampaging, rapacious and capricious relations angling for their fathers patrimony, and resulted in the agonizing cries of widows traumatized by obnoxious customs that treat them as chattel despite their contribution to their late husbands assets, and also prevent daughters from inheriting their parent assets on grounds of gender.

In this paper, we shall look at the two types of marriage known to law, examine the distribution of property on intestacy for both types of marriage, the effect of wills on the rules of inheritance before proffering a general advice on the best route prospective testators should take. As a preliminary point, may we briefly define some terms that would be encountered in the course of this paper:-

(a)       Testate:   A person who made a Will before dying is said to

                             have died testate

(b)     Intestate:    A person who dies without making a Will is said to

                             have died intestate

(c)      Will: A document made by a person to be used for sharing his property after his death

(d)     Inheritance:  All the assets of a deceased person upon death.

(e)     Succession:  The process of taking over the assets of a deceased person.

It is crucial to understanding the inheritance laws, that everyone knows the nature of his marriage. For our present discourse we would classify marriages into two viz: statutory marriage and marriage under native law and custom. A statutory marriage is one celebrated in accordance with the Marriage Act, Chapter M6 Laws of the Federation 2004. These types of marriages are loosely called white wedding and usually celebrated at the Marriage Registry or in a licensed place of worship after obtaining a permission to do so from the Marriage Registry. A certificate of marriage is usually issued to the couple and one of the certificates must be returned to the Marriage Registry within 7 (seven) days from its celebration where the marriage takes place in a church.

Native Law and Custom Marriage is any other type of marriage contracted outside the express provisions of the Marriage Act. In this category would include Marriages celebrated in a Catholic Church in accordance with the Roman Catholic Marriage rites with the consent of the couple irrespective of the fact that a certificate of marriage is issued by the Roman Catholic Church. In OBIEKWE VS. OBIEKWE1

a marriage celebrated in accordance with Roman Catholic rites was held to be a customary law marriage

The Methodist Church usually warns celebrants that its Marriage Certificate is not a substitute for Marriage Registry certificate. The church is simply telling the couple to go to the Marriage Registry and wed if they have not done so.

Also when couples marry under native law and custom and go for church blessing, it is a native law and custom marriage. In SETSE V. SETSE2

It was held that a church blessing of a marriage did not constitute a marriage under the Act.   

  1. (1963) ENLR 96

See also

AKPARANTA VS. AKPARANTA (1972)2 ECLSR 779.

MARTINS VS. ADENUGBA (1946)18 NLR 63

ANYAEGBUNAM VS. ANYAEGBUNAM (1973)4 SC 121

  1. (1959) GLR 155

See also MARAIZU V. MARAIZU (1973) ECS NLR 671

INHERITANCE UNDER NATIVE LAW AND CUSTOM UPON INTESTACY

YORUBA CUSTOM:

Under Yoruba native law and custom, upon the death of a man, he is succeeded by his eldest son (called the Dawodu) as the head of family; upon the death of the Dawodu, the eldest child (male or female) becomes the head of family. The distribution of the estate of the deceased follows the ori ojori or the idi-igi system. Ori-ojori is distribution of the estate equally among all the children even if the deceased was polygamous. Idi-igi is distribution according to number of wives i.e. each wife constitutes a line of succession. The Dawodu decides the system of distribution to be adopted. In DANMOLE VS. DAWODU1 and AKINYEDE VS. OPERE2, It was held that wives do not inherit any property of their late husbands as they are regarded as property to be inherited. Coker3 wrote:

Among the Yorubas of Nigeria, the wives of a man constitute part of his …. Property”

Widows have no right to administer their late husband’s property4.

On the death of a woman, her property is inherited by her husband5 if the husband is late, her property would be inherited by her children6

  1. (1958)3 FSC 46
  2. (1968)1 ALL NLR 65.

See also SUBERU V. SUNMONU (1957)12 FSC 33

OSHILAJA V. OSHILAJA (1973) CCHCJ 11

  1. COKER “Family Property among the Yorubas” 1958

The eldest son is morally obligated to take care of the younger members of his late father’s family.

  1. AILERU & ORS VS. ANIBI (152)20 NLR 46

AKINUBI VS. AKINNU (1997)2 NWLR 144

  1. CAULCRICK VS. HARDING (1926)7 NLR 48.
  2. JOHNSON V. MACAULAY (1961) 1 ALL NLR 773

OLD MID-WESTERN STATE (EXCLUDING IGBO AREAS)

In this area the property of the deceased man, vests in his eldest son exclusively after the son must have performed the second burial. If he fails to perform it before his demise, the next in line who performs it inherits the property. In OGIAMEN VS. OGIAMEN1 this custom was challenged on the grounds that it is repugnant to natural justice, equity and good conscience. The Supreme Court upheld the custom and declared “we see nothing wrong in this custom; we can only say that it is not unknown in some other highly civilized countries of the world”

NORTHERN NIGERIA

In the States that make up the former Northern Nigeria, two systems of native Law and custom operate i.e. indigenous native law and custom and Islamic Law. Under the indigenous system, the male children inherit their late father and or mother’s property, and after them, the brothers of the deceased. Females do not have inheritance rights. However, under Islamic Law, there is no discrimination as to sex. The Rules of inheritance are to be found in Chapter 4 verses 7,11 and 12 of the Quran. Chapter 4 verse 7 says:

Men shall have a share in what their parents and near relatives leave, and women shall have a share in what their parents and near relations leave; whether it be little or much, it is legally theirs” wives inherit ¼ if no child and 1/8 if there are children.

  1. (1967) NMLR 245

OLD EASTERN REGION INCLUDING ASABA

The native law and custom relating to inheritance is not uniform. Despite the disparity, one common trend that runs through all of them is that daughters have no right to inherit their father’s property1. (except coco-yams in Nnewi and their late mothers wardrobe) women are not entitled to manage the property2 of their late husbands as women are also the subject of inheritance. Widows may be allowed to reside in the property and farm in their late husbands farms until they remarry or die. If they are of good behaviour.

On the death of a man, his eldest son (Diokpala) succeeds him as the head of family and holds the late fathers property in trust for all the sons3.

The property of a married woman is usually inherited by husband. If the husband is later, it is inherited by the sons. Her daughters inherit her wardrobe

The Oliekpe custom was successfully challenged in the celebrated case of MOJEKWU VS. MOJEKWU4. The Court of Appeal held that the custom is contrary to natural justice, equity and good conscience. Niki Tobi JCA said:

“…the Nnewi “Oli-ekpe” custom relied upon by the Appellant are not consistent with our civilized world in which we live today including the appellant ….. Oliekpe custom of Nnewi is repugnant to natural justice equity and good conscience”5

In Ohafia, Abiriba, Eda, inheritance is matrilineal. On the death of a man, his estate is inheritance by:

  1. His brothers of the same mother in order of seniority. They need not to be of the same father; or failing this,
  2. By his sister of the same mother; or failing this,
  3. By the children of the eldest sister of the same mother.
  1. See NEZIANYA VS. OKAGBUE (1963)1 ALL NLR 352
  2. EJIAMIKE VS. EJIAMIKE (1972)2 ECSLR 11
  3. UGBOMA VS. IBENEME (1967) FNLR 251
  4. (1997)7 NWLR (PT 512) 283
  5. Ibid at page 308

In this area a woman’s property acquired before marriage passes to her maternal relations, while those acquired during marriage pass to her husband.

An exception to the rule that women do not inherit their father’s property occurs when the “Nrachi” custom has been performed on a woman. The “Nrachi” custom is said to occur when a daughter of a man who dies without a male issue, is mandated to remain unmarried in her late father’s house for the purpose of bearing a male child who would bear the fathers name and continue the late father lineage.

INHERITANCE UNDER THE MARRIAGE ACT – UPON INTESTACY

When a married person dies intestate, the distribution of the intestate’s estate is governed by the Administration of estate law of the state where he was domiciled upon his death. Domicile simple means a person’s permanent home. A person can only have one domicile at any given point in time. You can only acquire a new domicile if you have abandoned an old one.

So if a man resident in Lagos State dies, the Administration of Estate Law of Lagos State would apply to the distribution of his property1. Please note that if a man domiciled in Lagos or a particular state, dies while visiting or holidaying in another state, the law of the place where he lived would be applied in the distribution of his estate. Old Anambra State (Enugu & Anambra) is governed by the Administration and Succession (Estates of Deceased persons) LAW chapter 4 Laws of Anambra State 1986. Abia is governed by the Administration of Estates Law of Abia State chapter 48 Laws of Abia State, 2010. Because of the technical nature of these rules, we have reproduced them and attached them as schedule to this paper. We shall pause here to look at some of the rules.

  1. See OBUZEZ VS. OBUZEZ (2007)10 NWLR (PT 1043)430
  2. See also SALUBI V. NWARIAKU (2003)7 NWLR (PT 819) 426

From our discussion, above, it is clear that the Laws governing inheritance under Customary Law and under Statutory Law are cumbersome, highly technical and may still result in expensive litigation and wars of acrimony or attrition between family members and the extended family.

The best way for a person to dictate the way in which he would like his estate to be distributed after his death is by making a will.

WILL

A will is simply a document made by a person giving directions on how his property is to be shared upon his death. The will speaks from the death of a person. The maker called testator, is at liberty to amend it, revoke it, and rewrite it before death. Marriage subsequent to a will revokes the will except it was expressly made in contemplation of marriage. In the case of IGBOIDU V. IGBOIDU1

The Court of Appeal clearly stated that a person’s Will should be allowed to govern the distribution of his estate without interference.

The State Laws requirements for making Wills as provided by the relevant laws are sufficiently similar. They are:

  1. It must be in writing,

  2. Signed by the testator at the foot of the will

  3. The signing of the Will by the testator must be witnessed by two persons at the same time,

  4. The witnesses must sign as witnesses to the Will. It is advisable that they sign in the presence of each other but failure to abide by this requirement will not vitiate a Will

  1. (1999) 1 NWLR (pt 585)27

In addition, the testator must be

  • 18 years and above for Lagos State but 21 years and above in other states;
  • Have the mental capacity to make the Will. That is he is of sound mind not necessarily sound health. It is advisable to get medical certificate of fitness for very old people, sick persons and a person suffering from insanity. An insane person can make a will during his lucid interval. A blind person can also make a Will by fixing his mark on it after it has been read over by a Solicitor,
  • There should be no undue influence on the testator. Undue influence means pressure exerted on the testator to make him do something contrary to his wish.

The making of a Will by members of the Armed Forces is governed by Armed Forces Decree No. 105 of 1993. These categories of persons and seamen do not need to comply with the formal requirements of the State Law in making their Wills. They can make oral Wills (nuncupative Wills) in some states except Lagos. The freedom to make a will is limited for persons governed by Islamic Law. Under the Wasiya System, a moslem can only make a Will in relation to 1/3 of his personal estate. A Bini or Itsekiri person cannot make a Will that would prevent the 1st son from succeeding to the testator’s personal house (Igiobe) when he dies. In Anambra State a beneficiary (wife or child under 18 years or in school) who feels short changed by the Will of a deceased person as it relates to maintenance can apply to Court – for variation of the testamentary provisions within six months from the death of the testator. The Court is empowered to make any order it considers just in the particular circumstances of the case.

CONCLUSION

From the above discussion it is clear that customary Law rules relating to intestacy may be contrary to equity and good conscience in certain areas. The fact that a custom has applied for so many years should not deter people who feel aggrieved by it from challenging it. If the daughters in Mojekwu V. Mojekwu did not challenge, the “Oliekpe” custom, it would still be applied till this day. This is because custom is dynamic and most of these practices even if recognized by our Courts, were done at a time Section 42 (1)(a) of the Constitution of the Federal Republic of Nigeria 1999 had not been enacted or the decisions were reached without recourse to this constitutional provision Section 42(1)(a)provides:

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 a 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, place of origin sex, religions or political opinions are not made subject;

It is clear that where a Nigerian can show by evidence that a particular custom in his locality is discriminatory and does not apply to other Nigerians, the Courts will set aside the custom. This is a wake-up call for activists.

Testators are advised to be sure of the Law applicable to the distribution of their properties on their death and take steps to correct any anomaly they consider contrary to their wishes. In this respect, they must be sure of the nature of their marriage and the law applicable to it. People are strongly advised to make wills for the distribution of their property since death is a necessary end that will come when it will come.  Making a Will does not attract death and it can always be revised from time to time. Given its technical nature, if you wish to make a will, consult a Lawyer.

Uche C. Ihediwa Esq.

Barrister & Solicitor

 

DISTRIBUTION OF RESIDUARY ESTATE IN ABIA STATE

  1. If the intestate leaves a spouse but- The residuary estate shall be held in

          (a)    no issue, and trust for the surviving spouse absolutely

        (b)   no parent, or brother or sister of the whole blood or issue of a brother or sister of the whole blood.

  1. If the intestate leaves a spouse and- The surviving spouse shall take the

         (a)  issue, but personal effect absolutely and, in

         (b) no parents or brother or sister addition, the residuary estate of the of the whole blood or issue of intestate equivalent to the value of one brother or sister of the blood third of the residuary estate, the reminder

Of the residuary estate shall be held as to the other two-thirds, on the statutory trust for the issue of the intestate.

  1. If the interstate leaves a spouse and- The surviving spouse shall take the

            (a)        issue and personal effects absolutely, and, in addition

            (b)        parents (whether or not he the residuary estate of the intestate leaves brother or sister of the equivalent to the value of one-quarter of whole blood or issue of such residuary estate, the remainder of the brother or sister of the whole blood residuary estate shall be held:

  • As to one quarter upon trust for parents of the intestate during their individual lives and thereafter held on statutory trusts for the issue of the intestate, and;
  • As to the remaining three-quarters on statutory trusts for the issue of the intestate
  1. If the intestate leaves a spouse and- The surviving spouse shall take the

         (a) parents and one or more of the personal effects absolutely, and, in following, that is to say, a brother      addition, the residuary estate of the or sister of the  whole blood;  intestate equivalent to the value of  but two-thirds of the residuary estate free of costs, the remainder of the residuary estate

(b)        no issue  shall be held-

  • Where the intestate leaves one parent or both parents (whether or not he leaves brother or sisters of the intestate or their issue also survive) in trust for the parent absolutely or, a the case may be, for the two parents in equal shares absolutely;
  • Where the intestate leaves no parent, on the statutory trust for the brothers and sisters of the whole blood of the intestate.
  1. If the intestate leaves issue but no surviving spouse the residuary estate of the intestate shall be held-
  • As to one-third to the parents of the intestate for life and subject to such life interest, on statutory trusts for the issue of the intestate, and
  • In default of any person taking an absolute interest under the foregoing provisions, the residuary estate of the intestate shall be distributed in accordance with the customary laws that would apply to the deceased person’s estate as if this law had not been passed.

Applicable Method of Distribution in Anambra State

Rule 1  –  Leaves a spouse but no children,

The surviving spouse takes absolutely.

 Or parents or brothers or sisters

But if the surviving spouse is the wife and

Of the whole blood   the deceased left half brothers, then the

Wife’s interest would be for life or until she remarries. After that, the half brothers will take. Children of late half brothers will take what is due to their late parent.

Rule 2 – leaves spouse and children

1/3 goes to spouse. But if a wife that whether parents and brothers  interest vests for life or until she remarries.

Are alive or not  2/3 to children equally including the wife’s 1/3 if it vests. Where no children, then to the grand children.

Rule 3 –   leaves no child, but leaves  spouse – 2/3 to spouse. 1/3 to brother & sisters of spouse, parent(s), brother and the whole blood. If spouse is a woman, wife sister of the whole blood  interest is for life or when she remarries and children of brothers and 2/3 will eventually vest in siblings or Sisters of the whole blood siblings children, if no siblings and children of siblings, the 1/3 will vest’s in parent(s). when wife’s interest expires.

Rule 4 –            leaves no spouse –   2/3 will go to the children.

Children and or grandchildren   1/6 to the parents 1/6 to the brothers and sisters

Rules 5 –          Leaves no spouse, no children    2/3 to both parents absolutely.

or grandchildren but leaves   1/3 to brothers and sisters. If no brother or bother parents                         sister, this 1/3 will go to the parents

Rules 6  –   Leaves only one parent with               2/3 to the parent, 1/3 to brothers and brothers & sisters                            sisters. If no brothers or sister, then the 1/3 will go to the surviving parent

Rule 7 –            No spouse, no child, no parent.  It will go to

  • Brothers and sisters of the full blood;
  • If (a) fails, then to the half brothers and sisters
  • If (b) fails to grandparents;
  • If (c) fails to the uncles and aunties; of the whole blood
  • If (d) fails to Uncles aunties of half brothers & sisters.

Rule 8 –            if all fails   the head of family will take and provide for

those the deceased usually made provisions for or expected to make provisional for.

SUCCESSION UNDER INTESTACY RULES AND ADMINISTRATION OF ESTATES LAW OF LAGOS STATE

This applies to people who are married under the Marriage Act and die without a Will. Many states have enacted Administration of Estates Law to govern the distribution of the estate of a person who dies in this circumstance. In Lagos State, there is the Administration of Estates Law, Chapter 3 of Lagos State 2004. Anambra and Abia laws are reflected herein.

Section 49(5) read in conjunction with Section 49(i) and 1(3) of the Act makes it clear that when a person dies in Lagos, his estate i.e. the ones that belong to him not family property will be distributed in accordance with the Law except there is an existing order of a Customary Court to the Country. This will apply where the person died while domiciled in Lagos State or where the property is in Lagos State.

Method of Distribution

Rule 1  –           Leaves a spouse but no parent,  the surviving spouse takes the whole issue, or brothers or sisters of the               estate.

whole blood or children of the

brother or sister of the whole blood

Rule 2 –            Leaves children with a spouse           Spouse takes all personal chattels.

1/3 residue for life children take 2/3 of residue. On the death of the surviving spouse the 1/3 goes to the children

Rule 3 –     leaves no child, but leaves parent,     (a)        spouse takes chattel + 2/3 brother or sister of the whole blood of the residue

Or children of the brother or sister

 Of the whole blood

(b)        ½ of remaining 1/3 to spouse

½ of remaining to parents

(c)        if no parent then the ½ of the 1/3 in (b) above would go to the siblings of the whole blood or to children of siblings of the whole blood

Rule 4 –            leave issue without spouse –   The children inherit absolutely.

Rules 5 –          Leaves no child or spouse  but both parents are alive

Estate goes to both parents

 Rules 6 –          No child, no spouse but one surviving parent – parent takes absolutely

Rule 7 –            No child, no spouse, no parent.

  • To brother and sister of the whole blood;
  • If none under (a) then to half brothers and sister;
  • If (b) fails then to the grand parents in equal shares;
  • If (c) fails to the uncles and aunties’ of the whole blood;
  • If (d) fails to children of uncles and anties of the whole blood
  • Where (e) fails it becomes bonavacantia. It goes to the State. Note the state may divide it amongst the kindred or other persons the deceased used to care for when he was alive.

Add a Comment

Your email address will not be published. Required fields are marked *