Introduction

We have all heard the word “Next of Kin”. It can be seen in documents like, bank forms, employment contracts and wills. The question then arises, who is a Next of Kin? What role do they actually play in a document and what are the implications of including a Next of Kin in a document. In this article, these questions and more will be explained but first let us define Wills.

What is a Will?

Will simply put is a written statement of how a person’s wealth and/ or properties (estate) should be shared in the event of such person’s death.

There is a common fear among people that writing a Will means you want to die, this is not the case. Writing a Will is a smart and safe way to ensure that the people you care about are protected especially in the event of your death using the wealth that you have acquired/accumulated over the years.

Qualities of a Valid Will

For a Will to be valid, there are a numbers of qualities that it must have;

1. The person writing it must be at least 18 years of age and must have the mental capacity to write it;
2. It must be in writing;
3. The person writing the Will (Testator) must execute i.e. sign the Will;
4. It must be attested to i.e. signed in the presence of two witnesses;
5. It must be kept at the probate registry (they are responsible for keeping Wills. They are like the bank for Wills); and
6. The executor of the Will must be an adult. The executor is the person responsible for carrying out the instructions contained in a Will.

What is the Implication of an Invalid Will?

If a Will is found to be invalid due to its inability to fulfil any of the qualities mentioned above, the Will will be treated as non existent and the estate will be distributed following the laws of Administration of Estate depending on the state.

What Laws Govern Wills in Nigeria?

There are various laws governing Wills in Nigeria;

1. Statutory Law (Wills Act, 1837 and various State’s Wills Law e.g. Lagos state);
2. Customary Law e.g. suit No. SC.271/1989 – Idehen Vs. Idehen;
3. Islamic Law e.g. Ajibaye Vs. Ajibaye where the testator (in gifting the bulk of his estate to his wife) stated; “notwithstanding the fact that I am a Muslim”… Court of Appeal still upheld that testator could not contravene the 1/3^rd law under Islamic law.

What/ Who is “Next of Kin”?

When people hear “Next of Kin”, what usually comes to mind is a column in their bank document or employment contract requesting for information on a NoK. That is most likely most people’s first experience with the term. However, that is not the only situation where a person is required to input their Next of Kin. Documents like school registration forms, hospital forms etc. would also require people to input the information of their Next of Kin. This information is required in order for the business or organisation where you work or attend can contact someone close to you in the event of an emergency or issue.

Who then is this mysterious Next of Kin and why are they so significant?

Next of Kin refers to a person’s closest living relative(s). Individuals who count as next of kin include those with a blood relation, such as children, or those with legal standing, such as spouses or adopted children.

This means, whoever is a person’s closest living relative(s), that is their next of kin.

Are Next of Kins also Beneficiaries?

To under this, we need to know who Beneficiaries are under the law. A Beneficiary can be defined as a person or entity named in a legal document, such as a will, trust, or insurance policy, to receive a benefit or asset from the estate of a deceased person.

From our definition of Next of Kin above, it is clear that Next of Kin is not necessarily a beneficiary as long as they have not been named as such in a legal document but if they are named as such, then a Next of Kin can also be a Beneficiary.

This mean, if Mr. Ola writes his wife’s name as his Next of Kin in his bank document, Mr. Ola’s money in his account will not automatically go to his wife unless Mr. Ola has expressly written in a legal document (e.g. A Will) that he wants his wife to be the beneficiary of the money in his account. Although there are exceptions like if Mr. Ola dies without writing a Will.

Therefore, all Next of Kins are not Beneficiaries and all Beneficiaries are not Next of Kin but Next of Kin can be Beneficiaries and Beneficiaries can be Next of Kin. Everything depends on the legal document that has been signed by the Testator.

What are the Legal Implications of including Next of Kin in a Will?

Next of Kin can only benefit from a Will if the Testator i.e. the person making the Will, expressly states such person, the Next of Kin, as a beneficiary. In a situation where the Testator does not name any of their Next of Kin as a beneficiary, then such person cannot benefit from the Will.

However, if a person dies without a Will i.e. intestate, then determining the Next of Kin will be necessary to know who is supposed to apply and collect a Letter of Administration from the Probate Registry. The Probate Registry is a department in every High Court in a state. A Letter of Administration once given, is used to administer the property of the deceased and it is based on the Administration of Estate Law of a given state.

Different states have their Administration of Estate laws and there’s a hierarchy for who can apply for a letter of administration. Section 49 of the Administration of Estate Law, Lagos lists in hierarchy, the people who can apply for Letters of Administration.

Conclusion

It is important to reiterate that being a Next of Kin does not automatically guarantee that such NoK is a beneficiary of the Will of a Testator, therefore, if a Testator desires to grant a gift to his/her NoK, such Testator must clearly state that he/she wishes upon their death to gift whatever they desire to gift to the NoK. The Testator should also state the name, description, address and occupation of the Next of Kin properly to ensure that the property or gift is given to the right person.

Written by Modupe