Table of Contents
Introduction
Intestacy occurs when a person dies without leaving a valid will. It refers to the condition of an estate (i.e., the property of a deceased at the time of death) of a deceased person who has not made a valid will.
Recall our session on testate succession where we discussed the requirements of a valid will? Where A prepares a ‘will’ which does not meet the requirements of Section 9 of the Wills Act, A will have died intestate. The same rules which applies to someone who didn’t prepare a will will also apply to A, despite the fact that A left a will behind. Thus, it is necessary to ensure that any will prepared complies with the requirement of the Act.
Intestacy
Intestacy may be partial or total. It is partial intestacy where the deceased prepares a valid will which distributes some of the deceased assets, but fails to properly dispose of some other assets in the deceased estate. The assets which are not mentioned under the will, will be distributed according to the rules of intestacy. Total intestacy on the other hand, refers to a situation where the deceased left no valid will. In such a case, the entire estate will be distributed under intestacy laws.
With intestacy, the deceased estate is distributed in accordance with the laws, rather than the personal wishes of the deceased. In Nigeria, the legal framework governing intestate inheritance is influenced by various factors, including the individual’s religion, ethnic background, and state laws. It includes Statutory Laws, Customary Laws and Islamic Laws. This part highlights the statutory and customary laws on intestate inheritance.
Statutory Laws
Intestate inheritance in Nigeria is primarily governed by the Administration of Estates Laws of different states in Nigeria, which outlines how estates are to be managed and distributed. When a person dies intestate, the estate of the deceased automatically vests in the Chief Judge of the state where the property is situated, until a grant of letters if administration (LOA) is issued by the court. The application for the grant will be made by persons listed in Section 49 of the Administration of Estates Law of Lagos State in accordance with the hierarchy as discussed in Part 1.
Upon the grant of the LOA, the Administrator will be able to manage and distribute the estate of the deceased. The first point of action for the Administrator would be to settle the outstanding liabilities and obligations of the deceased. This will include payment of funeral expenses, executor’s fees, relevant taxes; repayment of loans and debts of the deceased; and distribution of specific gifts made by the deceased during his/her lifetime (this usually occurs in cases of partial intestacy).
The remaining property of the deceased after settling the above liabilities and obligations is called the residuary estate.
Section 49 of the Administration of Estates Law of Lagos State provides guidance on how the residuary estate of a deceased person who died intestate should be distributed. This largely depends on who survives the deceased.
The table below shows how the residuary estate should be distributed:
| Surviving Spouse Only | The surviving spouse inherits the entire residuary estate absolutely. |
| No Surviving Spouse, Only Children | The children inherits the entire residuary estate absolutely. |
| Surviving Spouse and Children | The spouse is entitled to all the personal chattels of the deceased. This generally includes the personal belongings of the deceased such as clothes and accessories, vehicles, furniture, household hoods, etc.The spouse is also entitled to one-third of the residuary estate (excluding personal chattels).The remaining two-thirds will be split evenly among the children. |
| No Spouse, No Children, But Parents | The residuary estate is divided equally between the father and mother. |
| Surviving Spouse, No Children, But Parents or Siblings | The spouse takes all the personal chattels of the deceased.Two-third of the residuary estate (excluding personal chattels) is paid to the surviving spouse. The remaining one-third is split evenly with the spouse taking half and the remaining half distributed to the parents (or the siblings where no parent survives the deceased). |
| No Spouse, No Children, No Parents, But Siblings or Other Relatives | If there is no spouse, children, or parents, the residuary estate is distributed in the following order:Brothers and SistersStep Brothers and SistersGrandparents, if any.Uncles and AuntsStep Uncles and Aunts. |
| No Surviving Relatives | If no one qualifies to inherit the estate under the earlier provisions, the residuary estate reverts to the government as bona vacantia. However, the State may use its discretion to provide for any dependents or others for whom the deceased might reasonably have been expected to make provision. |
The above shows that the deceased spouse and children are the primary beneficiaries and in the absence of a spouse or children, the estate goes to other relatives like parents, siblings, or next of kin. This structure ensures that the estate is distributed based on the closest familial connections.
It is worth noting that the statutory laws (i.e., the administration of estate laws of various states), will not apply where the intestate deceased is subject to Customary Laws or Islamic Laws.
Whether a person is subject to customary law is determined by a combination of factors, focusing on ethnic background and community affiliation. The customary laws of a society will generally apply to the indigenes of that society. However, for matters of inheritance the type of marriage a person has contracted determines whether a person would remain governed by customary laws.
The Supreme Court in Olowu v. Olowu (1985), held that once a man has married under the Marriage Act, the issue of inheritance is to be governed by the Administration of Estates Law, and customary law does not apply. Thus, a person married under the Marriage Act will be generally seen as having elected to be governed by statutory law in matters of succession and inheritance, and the provisions of the Administration of Estate Law highlighted above will generally take precedence over customary law, even if the person would otherwise be subject to customary law by ethnicity.
Customary Laws
In addition to statutory laws, customary laws also play significant roles in intestacy. As mentioned above, statutory laws will not apply to intestate deceased who are subject to customary laws. If a person contracts a marriage under customary law, they are generally considered to be subject to the customary law of their ethnic group in matters of intestacy. Nigeria, being a multi-cultural society with hundreds of ethnicity, has various customs and laws relating to inheritance. In this article, we will address the Benin, Igbo, and Yoruba customary law on inheritance.
Benin Customary Law
The Benin customary law of succession is distinctive and follows the principle of primogeniture, which emphasizes the inheritance rights of the eldest son, particularly regarding the family home known as the Igiogbe (the house where the deceased lived and died). The eldest son receives the Igiogbe, while the other properties are distributed among the other children. The eldest son’s inheritance rights to the Igiogbe are tied to the performance of the father’s final burial rites. Without completing these, the eldest son cannot inherit the Igiogbe.
In cases such as Imaruaheru & Anor v. Aiguokunrughian & Ors (1990), the Supreme Court reaffirmed the customary law that the eldest son inherits the Igiogbe after the final burial rites, solidifying the importance of the eldest son’s role in the family and estate management. However, in recent cases, Omo-Osagie v. Imoize (2007), Aisien v. Irunmola (2016) – the Court of Appeal has emphasized the need of considering all heirs’ interests and allowing for a fair and just distribution of the estate.
Widows are generally not direct beneficiaries but serve as “gates” through which their children, particularly male offspring, claim inheritance (the Urho System). The property is often distributed per stirpes (according to the number of wives the deceased had).
Igbo Customary Law
In Igbo culture, inheritance is predominantly governed by patrilineal customs, where property is typically passed down through male descendants.
Traditionally, Igbo customary law on inheritance followed the principle of primogeniture, favoring male offspring over females, particularly in the distribution of land. The eldest son typically inherited the largest portion of his father’s land, while the other sons shared the remainder. If there were no sons, the deceased’s land would go to his brothers.
This practice excluded daughters, as they were expected to marry and move to their husband’s family, relinquishing claims to their father’s property. An exception to the exclusion of daughters exists through the nrachi or idigbe practice, where daughters who choose to remain single and reside in their father’s house can inherit property to continue the family legacy if no male heirs exist.
However the nrachi custom has been renounced by the courts in Muojekwu v Ejikeme (2000) as been repugnant to natural justice, equity and good conscience. Similarly, the Supreme Court in Ukeje v Ukeje (2014) declared that the Igbo custom that prevents a female from inheriting her father’s property is unconstitutional. In the case of Ikemson v. Ikemson (2008) the Supreme Court addressed the rights of widows under customary law. The court held that a widow could inherit her deceased husband’s property, particularly when children were involved. This ruling challenged traditional norms that often excluded women from inheritance and acknowledged their rights in a contemporary context.
Yoruba Customary Law
The Yoruba customary law of inheritance and succession follows principles that emphasize equality among the deceased’s children (both male and female) as validated in Lewis v. Bankole (1908), but with the eldest son, called the Dawodu, playing a special role in managing the estate and acts as the head of the family. Property may be shared per stirpes (Idi Igi), whereby property is divided by family branches, meaning each branch (representing a wife’s children) receives an equal share, or per capita (Ori Ojori), where each individual child receives an equal share, regardless of their mother’s branch.
In Danmole v. Dawodu (1958), the court clarified that Idi-Igi is the default method of sharing, but in cases of disagreement, the family head may opt for Ori Ojori. As established in Adedoyin v. Simeon (1929) if a deceased man has no children, his siblings by the same mother have the right to inherit his property. If the deceased has no children or siblings, the surviving parent inherits the property. If only one parent survives, that parent takes everything.
Challenges Associated with Intestacy in Nigeria
The distribution of an intestate estate can lead to disputes, particularly when family dynamics are involved. Below are some key challenges associated with intestacy: in Nigeria:
1. Complexity of Legal Framework
- Multiple Laws: As discussed above, intestate succession may be governed by different laws depending on the deceased’s background, religion, marriage or the type of property involved, and this can often lead to confusion.
- Inconsistencies: The principles of intestate succession vary significantly between different ethnic groups and religions, leading to inconsistencies and potential conflicts in inheritance rights.
- Ignorance of Rights: The effect of having a complex legal framework is that many individuals will remain unaware of their rights under intestate succession laws, particularly under statutory laws. This lack of awareness can lead to disputes and loss of property.
2. Discrimination in Inheritance Rights
- Gender Disparities:This is usually the case where the deceased is not governed by the Administration of Estate Laws. As displayed above, customary laws often discriminate against women, limiting their inheritance rights.
- Primogeniture: Many ethnic groups adhere to the primogeniture principle, which favors the eldest son in the inheritance of property, thereby marginalizing other children and relatives.
3. Disputes Among Heirs
- Family Conflicts: The absence of a will often results in disputes among surviving family members over the distribution of the deceased’s estate. These conflicts can lead to prolonged legal battles and emotional distress within families.
- Interference from Extended Family: Customary law may allow extended family members to claim a share of the deceased’s estate, complicating matters and leading to further disputes.
4. Administrative Challenges
- Lengthy Processes: The process of administering an intestate estate can be lengthy and bureaucratic, leading to delays in the distribution of assets to rightful heirs.
- Corruption: Corruption within legal and administrative systems can impede the equitable distribution of an intestate estate, with some heirs being unfairly marginalized.
5. Limited Legal Protection
- Unrecognized Customary Practices: Customary laws may not always be recognized or enforced in formal legal settings, leading to situations where customary inheritance rights are ignored.
- Inadequate Legal Framework: The existing laws governing intestacy may be inadequate or outdated, failing to address contemporary issues of inheritance, such as the rights of children born out of wedlock or cohabiting partners.
6. Cultural Resistance to Change
- Traditional Values: There may be strong resistance to changing customary practices, even when they are discriminatory or unfair. This cultural inertia can hinder efforts to reform intestate succession laws to ensure equity.
Conclusion – Inheritance under a Will V. Inheritance Outside a Will
Testate inheritance recognises the deceased’s values, minimize legal complexity and protect dependents and beneficiaries. The importance of testacy over intestacy lies in the control, clarity, and peace of mind it provides to individuals and their families. By establishing a valid will, the deceased can ensure that their wishes are respected, minimize disputes among heirs, and create a structured plan for their estate’s future, which will lead to smoother transitions and stronger family relationships following a loved one’s death.
Intestacy on the other hand, may be beneficial to individuals with a small estate, especially where there is no land or high value assets, as it eliminates the legal cost of preparing a will, depositing and admitting the will to probate. Proponents of intestacy argue that intestacy helps preserve family land and ensure distribution of family property remain within close relative ties.
Having discussed the legal framework governing testate and intestate inheritance, the ultimate choice between testate succession and intestacy lies with the individual who would decide based on his or her individual circumstances, preferences, and cultural considerations.
