Generational wealth and legacy transfer: A legal perspective (2)

Customary succession

Customary law embodies the belief system and way of life practiced by a group of people which they regard as binding on them. Nigeria is made of over 250 ethnic groups and each have customs that are particular or specific to them. The customary law applicable to a person generally, is the law of his/her place of origin. Customary succession is therefore transfer done in accordance with the native law, customs, traditions and belief of the particular people which is binding and enforceable. This would therefore ordinarily apply in the absence of a Will being made by the deceased.

Administration of estates

Human affairs are never predictable, at least in relation to the payment of the compulsory debt that we owe our maker, to leave this world one day, through death. It is an inevitable appointment that everyone must keep, but the issue is always the time of that appointment, which is known to God Himself alone. Because death could come unexpectedly, the law has made provisions for the mode of distribution of the estate of a person who departs unexpectedly without making adequate provisions for the sharing of his or her assets amongst the survivors.

Under and by virtue of section 7 of the Administration of Estates Law of Lagos State, 2015, “where a person dies intestate under this Law in respect of the real and personal estate, that estate will be deemed to have been vested, from the date of the death until administration is granted, in the Chief Judge …” This to me is most unfortunate, but the law is clear that survivors and family members of a man or woman who died without a Will have no power over his or her estate until administration has been granted by the Court.

In practice however, once a person dies, the family gathers together in the name of culture and tradition, to assume power of administration of the estate, especially for the purpose of distribution, amongst the survivors. Different States across the federation have different laws regulating the administration of estates but most States in the South West of Nigeria have similar laws to that of Lagos State quoted above. In some cases, decisions are taken by family members of the deceased that are patently inequitable but most people have come to accept this as normal, in order not to be branded as a witch or a greedy survivor.

A case was reported some years back of a prominent politician who died suddenly, leaving a wife with little children. Whilst the wife was still mourning her husband, the family gathered together and decided to send her back to her own family, they ejected her from the husband’s house forcefully, accusing her of killing their son. In some other cases, brothers or sisters of the deceased are granted power of administration over his estate over and above his wife and children.

Perhaps the first thing to take note of is the nature of marriage to be contracted. Based on my personal experience in court cases on this issue, it is best never to give out your daughter through customary marriage alone, no matter the circumstance, without following it up with the requisite statutory protection. It is like throwing the poor girl away into eternal bondage. Most cultures in Nigeria have no regard for the status of the woman in marriage, either as an equitable investor or a stakeholder in the family or even as a survivor and potential beneficiary of the assets of the deceased spouse. This is the prevailing culture in Yorubaland, as with most other cultures, as illustrated in the case of AKINNUBI & ANOR V. AKINNUBI & ORS (1997) LPELR-352 (SC):

“Now, under Yoruba customary law, a widow under an intestacy is regarded as part of the estate of her deceased husband to be administered or inherited by the deceased’s family; she could neither be entitled to apply for a grant of letters of administration nor to be appointed as co-administratrix of her deceased husband’s estate.” Per ONU, J.S.C.

This has also been demonstrated in the death of a prominent traditional ruler in the South-West, with various interpretations of how his estate will be distributed.

The starting point is to always insist on a legal marriage, with the evidence of a certificate from the appropriate Marriage Registry, in order to protect the couple, in case of any eventuality. This is because marriage itself plays a significant role in the distribution of the estate of a dead person as no one can exclude the lawful spouse of a person from benefitting.

Section 46 of the Administration of Estates Law governs the mode of distribution of the residuary estate of a deceased person who died intestate. They are in the following categories:

Surviving husband or wife

If the intestate leaves a husband or wife without any issue (child), no parent, or brother or sister of the whole blood, or children of a brother or sister of the whole blood, then the surviving husband or wife takes the residuary estate absolutely. In other words, where a man dies without a child, has no parent or brother or sister of the same parent (or even their children), then his surviving wife takes his residuary estate exclusively, without sharing the same with anybody.

Surviving husband or wife and children

If the intestate leaves issue (child), whether or not he leaves parent or brother or sister of the whole blood, the husband or wife will take the personal chattels (cars, clothing, books, shoes, jewelleries, furniture, pictures, wines and such other assets of personal use) absolutely, and in addition, the husband or wife will take one third of the residuary estate whilst the surviving issue takes two-thirds thereof.

Surviving husband or wife with no issue

If the intestate leaves a surviving husband or wife, a parent, a brother or sister of the whole blood or their issue but leaves no issue of his own, then the surviving husband or wife takes the personal chattels absolutely, and in addition, also takes two-thirds of the residuary estate. Either one or both parents will take the remaining in equal shares absolutely, whether or not the intestate leaves a brother or sister of the whole blood. But where the intestate leaves no parent, the brothers and sisters of the whole blood take the remaining one-third in equal shares absolutely.

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.

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