From today, we will be considering a situation whereby a will is made where there are established customs regarding succession in parts of Nigeria. We will start from the western Nigeria.
Southwest
I am not aware of any restriction on Wills as far as the South Western Nigeria is concerned. As long as the Will is in compliance with the Law the Court will pronounce it valid.
However, it does not mean that Wills will not be challenged by the beneficiary and other persons interested in the estate but there is no specific custom restricting succession by Will in the Western part of Nigeria.
There have been cases where the first born has been disinherited in the Will and the Court upheld the validity of the Will.
Under the Yoruba Customary Law all the children of the deceased can inherit the estate of the deceased. It does not discriminate against the children born outside wedlock.
However, if there is a Will in which some children are expressly disinherited it will be upheld by the Court. The Yoruba Customs does not discriminate against genders.
Will under Benin custom
The customary law is well established that the first son of the testator is entitled to inherit the house where the testator hired and died. Such houses are referred to as ‘Igiogbe’.
This is recognised by Section 3 of the Wills Law of Edo State which provides ”subjects to any Customary Law relating thereto, it shall be lawful for every person to demise, bequeath or dispose by his Will executed in a manner hereinafter required all real and personal; estate which he shall be entitled to…”
In the case of Arase V. Arase the Supreme Court held “Under the Bini Native Law and Custom the eldest son of deceased is entitled to inherit without question the house or houses known as ‘Igiogbe’ in which the deceased/testator lived and died. This a testator cannot validly dispose of the ‘Igiogbe’ by his Will except to his eldest son surviving male child. Any devise of the Igiogbe to any other person is void.
It should be noted that the properly will not automatically pass to the eldest son on the demise of the father but after the completion of the second burial known as “Ukpomwan” which is funeral obsequies by members of the deceased family for the eldest son at request. It is only after this ceremony that first son can inherit the Igiogbe.
The father can make a Will and devise his properties to anyone he likes but he cannot devise the Igiogbe to anyone except his eldest son otherwise the devise will be void in respect of the Igiogbe only, though other parts Will will be upheld by the Court. This is a situation whereby the Wills Law has been subjected to the customary; this has been possible because the customary law has over the years passed the test of the repugnancy doctrine.
We will be looking at inheritance under the customary law of the south eastern part of Nigeria, with relevant superior courts decisions in the next edition. We cannot do that now because I do not want it published in fragments so a reader can follow it logically. I wish to appreciate some of my learned colleagues that have contacted to make one or two comments.
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