If you die without leaving a valid will, you are said to have died intestate. What happens to an estate where the deceased does not leave a will is dependent on the nature of his marriage in his lifetime.
– WHERE THE DECEASED MARRIED UNDER THE MARRIAGE ACT
For a man who died without a will and who married under the marriage Act, the provision of the law prescribes who will receive the deceased’s property. The law of intestate succession favours the surviving spouse and children to the exclusion of extended family.
– WHERE THE DECEASED MARRIED UNDER CUSTOMARY LAW
Where a man (now deceased) married under customary law, his estate (in the absence of a will) will be distributed according to customary law. Customary law rules relating to the distribution of a deceased’s estate are as diversified as the number of ethnic groups in existence. However, the customary law rules which will apply to a given person will depend on the deceased’s ethnic group. The basic rule of succession upon intestacy where the deceased is subject to customary law is that his self-acquired property devolves upon his children as family property, leaving the widow with nothing. This rule is apparently universal in Nigeria traditional societies.
Amongst certain ethnic groups, the rule is that the deceased’s property devolves on the eldest son. This rule which is known as the rule of primogeniture is the enjoyment of seniority by birth as the firstborn among several children in the same family. It is the superior or exclusive right possessed by the eldest son and particularly his right to succeed to the estate of his ancestor by right of his seniority by birth, to the exclusion of the other younger sons.
The Bini law of succession offers a striking example. Under Benin custom, the property of a deceased person devolves on the eldest surviving son who has performed all the burial rites subject to any gift the father may have made during his lifetime to his other children or to outsiders.
Under Igbo customary law, when a man dies, all his properties pass to his sons and where there are no male children, the deceased’s brothers or uncles inherit as trustees or custodians to administer the deceased’s estate for the benefit of the deceased’s family. However, reality is that such brothers and uncles most often take over the deceased’s property and disinherit the deceased’s nuclear family.
Also, in most of eastern Nigeria, a widow cannot inherit her husband’s estate when he dies. She is considered as a chattel or part of the deceased’s property to be inherited by his heir.
We must be mindful of a recent landmark Supreme Court Judgement (2014) where Justice Bode Rhodes-Vivour, who read the lead Judgement, held that no matter the circumstance of the birth of a female child, such a child is entitled to an inheritance from her late father’s estate. Consequently, he averred, the Igbo Customary law which disentitles a female child from partaking in the sharing of her deceased father’s estate, is in breach of section 42 (1) and (2) of the constitution, a fundamental rights provision guaranteed to every Nigeria. The landmark judgement, therefore, declared the discriminatory customary law, void.
The Supreme Court ruling is a victory for gender equality in Nigeria. However, the implementation of the judgement is likely to be fraught with difficulties because the inheritance custom it voided is deep-rooted and likely to be resisted by the men folk in traditional communities.
This Supreme Court Judgement is a watershed that will go a long way in enhancing the status of women in the country. But it will only be beneficial when women are ready to fight for the right that it has granted them.
Amongst the Idomas and the Igalas of the middle belt of Nigeria, the brother of the deceased, as next of kin, inherits the deceased’s property, including the deceased’s wife and children.
It is necessary at this point to sound a note of warning and give a word of advice. To avoid the type of family dispute, intrigues and the kind of litigation which play out regularly, it is advisable to consult a lawyer and prepare a will so that you do not pass on intestacy, leaving behind problems for the family to slug out.
– PREVENTING OPPRESSIVE TENDENCIES OF RELATIVES
We ought not to conclude this article without underscoring the fact that making a will offers the greatest recipe against the oppressive tendencies of relative and humiliating experiences of helpless widows in our society. You can’t afford to leave anything to chance. This author has heard many high-ranking persons boast that such a situation cannot arise in their own extended family. Please, do not be fooled as this can and is happening more frequently than you could imagine. Please, do not be caught napping.
When you make a will, whether you are male or female, you can speak silently but authoritatively from the grave as regards who gets what from the estate you left behind.
Making a will today means you would have secured the life and future of your family. Regret will be minimized and the pain of separation would be reduced.
– REALITY CHECK
In view of the certainty of death, you and I cannot afford to pretend that physical life is a continuum since each person will answer the ultimate call one of these days; the least we can do to secure our assets and the future of our loved ones is to act IMMEDIATELY by settling this issue while we have breath. No more procrastination. Call up your lawyer TODAY!
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