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Generational wealth and legacy transfer – Part 3

By Ebun-Olu Adegboruwa
23 May 2022   |   2:24 am
Customary law embodies the belief system and way of life practiced by a group of people which they regard as binding on them. Nigeria is made of over 250 ethnic groups and each have customs that are particular or specific to them.

Illustration of wealth

Customary Succession
Customary law embodies the belief system and way of life practiced by a group of people which they regard as binding on them. Nigeria is made of over 250 ethnic groups and each have customs that are particular or specific to them. The customary law applicable to a person generally, is the law of his/her place of origin. Customary succession is therefore transfer done in accordance with the native law, customs, traditions and belief of the particular people which is binding and enforceable. This would therefore ordinarily apply in the absence of a Will being made by the deceased.

Administration Of Estates
Human affairs are never predictable, at least in relation to the payment of the compulsory debt that we owe our maker, to leave this world one day, through death. It is an inevitable appointment that everyone must keep, but the issue is always the time of that appointment, which is known to God Himself alone. Because death could come unexpectedly, the law has made provisions for the mode of distribution of the estate of a person who departs unexpectedly without making adequate provisions for the sharing of his or her assets amongst the survivors.

Under and by virtue of section 7 of the Administration of Estates Law of Lagos State, 2015, “where a person dies intestate under this Law in respect of the real and personal estate, that estate will be deemed to have been vested, from the date of the death until administration is granted, in the Chief Judge …” This to me is most unfortunate, but the law is clear that survivors and family members of a man or woman who died without a Will have no power over his or her estate until administration has been granted by the Court.

In practice however, once a person dies, the family gathers together in the name of culture and tradition, to assume power of administration of the estate, especially for the purpose of distribution, amongst the survivors. Different States across the federation have different laws regulating the administration of estates but most States in the South West of Nigeria have similar laws to that of Lagos State quoted above. In some cases, decisions are taken by family members of the deceased that are patently inequitable but most people have come to accept this as normal, in order not to be branded as a witch or a greedy survivor. 

A case was reported some years back of a prominent politician who died suddenly, leaving a wife with little children. Whilst the wife was still mourning her husband, the family gathered together and decided to send her back to her own family, they ejected her from the husband’s house forcefully, accusing her of killing their son. In some other cases, brothers or sisters of the deceased are granted power of administration over his estate over and above his wife and children.

Perhaps the first thing to take note of is the nature of marriage to be contracted. Based on my personal experience in court cases on this issue, it is best never to give out your daughter through customary marriage alone, no matter the circumstance, without following it up with the requisite statutory protection. It is like throwing the poor girl away into eternal bondage. Most cultures in Nigeria have no regard for the status of the woman in marriage, either as an equitable investor or a stakeholder in the family or even as a survivor and potential beneficiary of the assets of the deceased spouse. This is the prevailing culture in Yorubaland, as with most other cultures, as illustrated in the case of AKINNUBI & ANOR V. AKINNUBI & ORS (1997) LPELR-352 (SC):

“Now, under Yoruba customary law, a widow under an intestacy is regarded as part of the estate of her deceased husband to be administered or inherited by the deceased’s family; she could neither be entitled to apply for a grant of letters of administration nor to be appointed as co-administratrix of her deceased husband’s estate.” Per ONU, J.S.C.

 
This has also been demonstrated in the death of a prominent traditional ruler in the South-West, with various interpretations of how his estate will be distributed.

The starting point is to always insist on a legal marriage, with the evidence of a certificate from the appropriate Marriage Registry, in order to protect the couple, in case of any eventuality. This is because marriage itself plays a significant role in the distribution of the estate of a dead person as no one can exclude the lawful spouse of a person from benefitting.

Section 46 of the Administration of Estates Law governs the mode of distribution of the residuary estate of a deceased person who died intestate. They are in the following categories:

Surviving husband or wife
If the intestate leaves a husband or wife without any issue (child), no parent, or brother or sister of the whole blood, or children of a brother or sister of the whole blood, then the surviving husband or wife takes the residuary estate absolutely. In other words, where a man dies without a child, has no parent or brother or sister of the same parent (or even their children), then his surviving wife takes his residuary estate exclusively, without sharing the same with anybody.

Surviving husband or wife and children
If the intestate leaves issue (child), whether or not he leaves parent or brother or sister of the whole blood, the husband or wife will take the personal chattels (cars, clothing, books, shoes, jewelleries, furniture, pictures, wines and such other assets of personal use) absolutely, and in addition, the husband or wife will take one third of the residuary estate whilst the surviving issue takes two-thirds thereof.

Surviving husband or wife with no issue
If the intestate leaves a surviving husband or wife, a parent, a brother or sister of the whole blood or their issue but leaves no issue of his own, then the surviving husband or wife takes the personal chattels absolutely, and in addition, also takes two-thirds of the residuary estate. Either one or both parents will take the remaining in equal shares absolutely, whether or not the intestate leaves a brother or sister of the whole blood. But where the intestate leaves no parent, the brothers and sisters of the whole blood take the remaining one-third in equal shares absolutely.
To be continued tomorrow
Adegboruwa is a Senior Advocate of Nigeria (SAN).

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