Sale!

LAW OF SUCCESSION I

700 100

You can pay using Mobile USSD, Transfer, Cash or Card.

This PDF contains succinct yet detailed Key-Points on Principles of the law of Succession in Nigeria (First Semester). The contents are in line with outlines of Nigerian Universities (Faculties of Law) and recommended textbooks. Liberal and apt language used to facilitate a quick-grasp / understanding for Students and Practitioners.

Description

PREVIEW LAW OF SUCCESSION

Contents

MEANING OF SUCCESSION. 1

SOURCES OF LAW OF SUCCESSION. 2

FORMS OF CUSTOMARY LAWS ON SUCCESSION AND INHERITANCE.. 2

DISTRIBUTION UNDER STATUTORY LAW. 10

WILLS AND CODICILS. 10

TESTAMENTARY CAPACITY. 21

EXECUTORS. 27

ALTERATIONS, INTERLINEATION AND OBLITERATION. PAGE 32

MEANING OF SUCCESSION.

The law of succession involves the transmission of the rights and obligations of the deceased person in respect of this estate to his heirs and successors. It equally deals with the rules governing the administration of the estate by the personal representatives of the deceased person including state participation in respect of the real estate situate within its territory and personal estate of the deceased person subject to its jurisdiction[1]. See Re Marshalling.

Succession deals primarily with the distribution of a deceased person’s estate and his successors.

Succession may be:

  • Testate: where the deceased had written a Will before his death.
  • Intestate: where the deceased dies without a will.

If a person dies intestate but not under the Marriage Act, then the personal law of the person Will be used to administer the estate of that person-Nwogugu

If someone dies intestate but marries under the Act, his personal law has been displaced because statutory marriage takes precedence over all forms of inheritance-Okon V AG Cross River. In such a situation, his estate would be governed by the intestacy rule under the Administration of Estate Laws Section 49-which provides that spouses are entitled to one third of the whole asset as opposed to customary law.

Where he makes a Will, he is said to have died testate and the devolution of his property is to be regulated by the provision of his Will and the various Wills Laws and Acts.

SOURCES OF LAW OF SUCCESSION.

  1. Customary law: It is largely unwritten, diverse. It must pass the test of repugnancy-Edet V Essien, Section 18(3).
  2. Islamic Law.
  3. Statutes and legislations like: Wills Act 1837. Wills Amendment 1852. Wills Laws of 1959 (western Region)
  4. Cases laws.
  5. Textbooks, Opinion of Writers, Scholars, etc.

FORMS OF CUSTOMARY LAWS ON SUCCESSION AND INHERITANCE

According to Black’s Law Dictionary 7th Edition, the word “inheritance”, in simple terms, is “property received from an ancestor under the laws of intestacy”[2]. In addition, John Burke in his book[3] stated that the aforementioned word “…is also used in old books in the sense of hereditament and as such, could be divided into corporeal and incorporeal; real; personal and mixed; and finally, into entire and several”[4].

TIV: The Tiv people are located in the middle belt region of Nigeria. They are the fourth largest ethnic group in Nigeria numbering about two million. The Tivs are mostly found in Benue, Nasawara, and Taraba States of Nigeria.

Their rue of intestate succession is largely by primogeniture. The Eldest surviving son inherits his father’s estate after performing the final burial rites of his father. Other properties are shared by the other sons and grandsons (as the eldest surviving male child decides/directs). Where the eldest surviving male child is still an infant, the property is administered by the oldest male relative of the deceased man.

The mother’s (or a woman’s) personal movable properties are inherited by her daughters in law or (where none) it goes back to her family.

THE IGBOS Mostly Patrilineal based on the principle of Primogeniture i.e. succession by the first son of the male line who is known as the ‘Okpala’, ‘Diokpa’ or ‘Diokpala’. In polygamous families, the eldest sons of each of the wives may take part in the sharing of the property. This is referred to as ‘Usekwu’. The courts have constantly interpreted the inheritance by the eldest male child as being in trust for other members of the family. Bethel J in the case of Onwusike v. Onwusike[5] emphasized in various parts of his judgement that the eldest son administers his father’s undivided estate as a trustee-beneficiary on behalf of himself and his brothers. Also in Ejiamike V Ejiamike,[6] the court found an evidence that in accordance with Onitsha Customary Law, the eldest son has the right to manage and administer the real estate of his deceased father for the benefit of himself and his brothers.

If the deceased has no male child, it is usually his brothers that administer[7].

What is left for the women: Wives, have no right of succession to their fathers’ or husbands’ moveable and immoveable property. In fact some lineages regard them as property. In Ugboma v. Ibeneme,[8] it was held that in accordance with the general Igbo custom, women are not entitled to inherit land from their fathers. Consequently, female plaintiffs have no locus standi. Same point was noted in Nezianya v. Okagbue[9] except that she has a right to remain in the compound subject to good behaviour and she should not remarry. Nzekwu v. Nzekwu[10] the court maintained that the interest of the widow in the house is possessory and not proprietary so that she cannot dispose of it. Daughters, like wives, do not inherit under Igbo customary law. The only situation where a daughter can inherit is where, for example, she chooses to remain unmarried in her father’ house with the view to raising children in her father’s home. This is known as “nrachi” or “idegbe” institution. It usually happens when a deceased left behind a substantial estate, but no surviving sons or other male issue of the lineage to inherit it[11]. The idea behind this practice is to save the lineage from extinction. The daughter, as an “idegbe” or “nrachi” is entitled to inherit both movable and immovable property of her deceased father’s estate. The legal interest vests in her until she gives birth to her children. However, if she bears sons and daughters, the sons and not the daughters will succeed her in accordance with the rule of primogeniture.

For illegitimate Children, ‘Ime Nkpuke’, which, being interpreted, means pregnancy outside the matrimonial home. Such a child, when born, carries the status of illegitimacy. Where the natural father however acknowledges the child, the child may claim under the father’s estate notwithstanding the fact that father might not marry the child’s mother-Olulode v. Oviosu[12]. This situation is very much like the principle of legitimation[13]. See also Onwudinjo v. Onwudinjo[14] on the issue of legitimacy.

[1]         Babatunde Oni: “The Rights of Women to Inheritance under Nigerian Law: An Evaluation” Nigerian Journal of African Law (2008) 2 NJAL pg. 40.

[2]            Black’s Law Dictionary 7th Ed p 787

[3]            Jewitt’s Dictionary of English Law (Sweet and Maxwell, 2nd Ed.)

[4]            Culled from Group 7’s Work on Succession in Igbo Customary Law.

[5]            (1962)  ENLR 10

[6]            (1972)2, E.S.L.R. 11,; see also Ngwo V Onyejana (1963) 1 ALL NLR 352.

[7]            note the ‘Oli Ekpe’ custom which allows for the nearest male relation of the deceased to inherit his property where the deceased died without male issue, father or brothers.

[8]            (1976) F.N.L.R 251

[9]            (1963) 1 All N.L.R 352.

[10]         (1989) 2 N.W.L.R 373.

[11]         Culled from Group 7’s work.

[12]         (1968) 1 All NLR Part 31, Pg. 37

[13]         This is used to characterize the process by which a child born illegitimate acquires a legitimate status. This is achieved either by the subsequent marriage of the parents or acknowledgement by the child’s natural father.

[14]         (1963) 1 All N.L.R 235

 

…. THIS IS A PREVIEW. KINDLY DOWNLOAD THE FULL NOTE ABOVE