Generational wealth and legacy transfer – Part 4
Intestate without surviving husband or wife
If the intestate leaves no husband or wife the residuary estate will be held for the issue of the intestate, that is the children. The problem here always is when the children are still minors, it is always a challenge to determine who manages on their behalf in the absence of their biological parents.
Intestate without surviving husband or wife or issue
If the intestate leaves no husband or wife and no issue but both parents, then the residuary estate will be held for the father and mother in equal shares absolutely. If the intestate leaves only one parent, the residuary will be held for the surviving parent absolutely.
Intestate without husband or wife or issue or parent.
If the intestate leaves no surviving husband or wife or parent or issue, then the residuary estate will be held for the following persons living at the death of the intestate, in the following order and manner, namely:
First, brothers and sisters of the whole blood and where there is no brother or sister of the whole blood, then brothers and sisters of the half blood. If the intestate leaves no brother or sister of the whole or half blood, then to the grandparents of the intestate, and if more than one survive the intestate, in equal shares.
If the intestate leaves no brother or sister of the whole or half blood and no grandparents, then to the uncles and aunts of the intestate, first to those of the whole blood and if none, then to those of the half blood.
Intestate without survivors
If the intestate died without a survivor, the residuary estate of the intestate shall belong to the State as bona vacantia, and in lieu of any right to escheat.
The danger of planlessness
From all that you have read so far, you would have heard that sharing the estate of a person who dies without a Will, will most likely run into controversies. You would therefore do best to avoid that, by either proceeding to write your WILL immediately or take any of the steps that I have suggested herein, before strangers take over your estate after you have gone. Let me share with you a practical example.
On Friday, January 17, 2020, the Supreme Court handed down a decision which highlighted the dangers of customary marriage, in the case of Delphine Zikere Okonkwo v. Amaka Ezeaku & Administrator-General/Public Trustee, Enugu State. It bordered on the estate of a renowned Senior lawyer and prolific author.
In this case, the Senior lawyer married under native law and custom in 1976 and the couple had one female child. Subsequently in 1988 the couple separated and remained so till the death of the Senior lawyer in 2005.
The marriage was not formally dissolved in accordance with the native law and custom under which they got married. During the period of the separation, the Senior lawyer got married to another woman in 1992, under native law and custom and they had two children. Sometime in 1988, he swore to an affidavit wherein he deposed inter alia that the latter woman was his lawful wife and that he had no other wife. Upon his death without a Will, his estate was placed under the management of the Administrator-General/Public Trustee.
The first wife, standing on her marriage with the deceased which was not formally dissolved, sought to partake in the distribution of the estate of the deceased as managed by the second wife. The case traveled from the High Court to the Supreme Court, which court held that the affidavit of the deceased was not sufficient as it did not in any way expropriate the estate of the deceased to his second wife.
The court held that without a formal dissolution of the customary marriage to the first wife according to native law and custom before contracting another marriage also under native law and custom, the first wife is entitled to partake in the sharing of the estate of the deceased. Although the decision of the Supreme Court is sound in law, the lesson in it is that it does not reflect the wishes of the deceased. This can be avoided through writing a WILL.
The enduring legacy
The pertinent question to ask is: what kind of legacy do I want to leave for my generation? and as men and fathers, the greatest legacy is that of raising children in the fear of God and of the law, embracing contentment in all endeavours, either in private or public office and to be mindful always of the reputation of his/her forebears. In light of the above, there is no doubt that one must plan towards the inevitable, in which no one except God, knows the date, time and details.
Adegboruwa is a Senior Advocate of Nigeria (SAN).