Let Your Will Be Done!

Most people in their lifetime, notwithstanding their economic or social standing acquire property of different kinds and quantity. Naturally however, most people are guided by the belief that that wealth should be accumulated, preserved and passed on to future generations. This is usually achieved with the creation and adoption of a properly articulated wealth transfer and succession plan. Under Nigerian law, this plan can be achieved with a Will.

Wills

A Will is a document used by a person (man or woman) to make a voluntary disposition of his/her property, real or personal, to preferred persons. The person making a Will is a Testator, and the person(s) entitled to the properties or benefits under a Will is the Beneficiary. The Testator has a right to make his Will freely and retains the right to change, amend or cancel the contents of his Will at any time during his lifetime. Furthermore, a Will takes effect only after the Testator passes on. With a Will, a Testator is deemed to have died testate whilst without a Will, a person is said to have died intestate and exposes his/her properties to the risk of being distributed in accordance with the laws applicable to place where he lived. Finally, whilst everyone is at liberty to utilize a Will for the disposition of their property, this freedom is limited by the customary law applicable to the Testator.

Nigerian Law and Custom of inheritance

In simple terms, customary law reflects the social attitudes and habits of various ethnic groups and derives its validity from the consent of the community which it governs. It is applicable only to people indigenous to the locality where such customary law applies. In Nigeria, customary law usually applies when a person dies intestate and the general rule where a person dies intestate is that his property passes on to his children as family property. The head of the family is the eldest male child of the deceased who will occupy the family house and hold it as a trustee for the other children, male or female. However, because of the multiplicity of languages and ethnic groups, there is no uniformity of rules. So, for the purposes of this article, we will focus on the administration of estate under the Bini law and custom, Yoruba law and custom and Ibo law and Custom.

Bini law and custom

The Bini customary law of inheritance adopts the doctrine of primogeniture. Therefore, in most cases, the eldest son inherits certain property of the deceased exclusively, while the other children are entitled to a portion of the remaining estate. The deceased’s eldest son is also entitled to inherit the house where the deceased lived and died otherwise called the “Igiogbe.” However, the Igiogbe does devolve to the eldest surviving son until the deceased’s second and final burial ceremonies have been performed.

Effectively, Bini law and custom places some limitation on the right of a Bini man to distribute his assets as he pleases. In other words, under Bini native Law and Custom, whilst a testator can dispose of his property in the manner he desires, he cannot, under any circumstance, devise the Igiogbe to anyone other than his eldest son. So, what happens where, a Bini man, devises his Igiogbe to his eldest son and the eldest son predeceases him? The simple answer is, his surviving eldest son will be next in line to inherit the Igiogbe. This is because, since the original eldest son to whom the Igiogbe was willed died before the testator, he becomes entitled to inherit the Igiogbe as the eldest surviving son.

Another question that perhaps begs an answer is whether a Bini man can exclude his eldest son completely from inheriting the Igiogbe? The answer to that, is no. The simple reason is that his power to make a Will is subject to the customary law relating to that property, hence he cannot validly exclude his eldest son from inheriting the Igiogbe. Effectively, Bini customary law will not permit a Testator to give the Igiogbe away as a gift. It must be passed on to his eldest surviving son.

Finally, one may also ask, can a Bini man have 2 (two) Igiogbe? In other words, do houses automatically earn the status of Igiogbe just because the deceased lived in all of them? The answer as explained by the courts is that, the Igiogbe is limited to the house the deceased lived and died and does not extend to other houses and vacant plots in the same compound.

Yoruba Law and Custom

In times, past, only a person’s siblings were entitled to inherit his/her property. Nowadays, this right is limited to the children of the deceased. So, if a person dies intestate, his children (male and female) inherit his/her estate as joint owners. The rule is that the eldest son (Dawodu) steps into his father’s shoes and has the responsibility of managing the estate for his own benefit and that of the family. However, a variation of the rule will become necessary upon the death of the Dawodu. This variation can be in either of two ways, namely, the Idi Igi (per stirpes) principle or the Ori Ojori (per capita) principle. In simple terms, the Idi Igi mode of distribution is one which prescribes an initial division of the estate amongst the wives in equal shares and then a further division of each wives share among her children in equal shares. With the Ori Ojori mode of distribution, the estate is divided amongst the children equally so that each child enjoys an equal share of the deceased’s property.

Igbo Law and Custom

With this part of the country, the rules are not uniform. However, there are some similarities that apply to all tribes within the region. Like the Binis, the law of primogeniture also applies. In other words, succession is through the eldest male child of the family who is called the Okpala, Diokpala or Diokpa who succeeds his father as head of the family and becomes entitled to special property by this status. One of such rights is the right to move into the house his father lived during his lifetime. He is also entitled to the use of the land within or around his father’s compound and to take benefit of all economic trees on it. In addition, he inherits his father’s occasional clothes with his walking stick and gets to keep his father’s personal ofo and other objects of worship. Where a traditional title can survive the holder, as eldest son he also inherits his father’s title.

Consequently, it is clear, that whilst a person can make a Will; the disposition of property through that Will must be in conformity with the law and custom of the Testator. In other words, a person has the right to elect a wealth transfer/distribution plan of his/her choosing. However, notwithstanding the plan deployed, there must be adherence to the relevant local law and custom to give legal effect to any such distribution.

OLUBUKOLA SEUN-OGUNTUGA