By Ebun-Olu Adegboruwa, SAN
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 provsions 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.
The rancours that normally attend this matter have made it imperative to consider it as a topic for discussion. Ideally, the rational thing is for everyone to make plans for the sharing of his assets in a Will, wherein the mode of distribution of the estate of the deceased is well stated, to avoid unnecessary disputes.
Even at that, experience has shown that notwithstanding the best of intentions by a testator, people still find reasons to war amongst themselves, so long as money is involved.
In this regard, the estate of a first republic minister is still in court, decades after his death. And two of the best lawyers that Nigeria has ever produced wrote their Wills in such a way that no one would ever have thought of any controversy thereafter, but there have been contentions between their families upon their demise.
So, the question is what can be done to prevent the kind of disputes that attend the distribution of the estate of a deceased person?
If you can overcome fear and cultural hindrances, it is good to write a Will early enough, at least from age forty, when one has any reasonable asset worthy of preservation. Another option is to acquire assets in the joint names of the couple, for instance to buy land in the name of Mr. Joe Musa and Mrs. Jane Musa, being careful to ensure that both names are reflected separately and not as Mr and Mrs. Joe Musa.
Also, the couple could incorporate companies, allot shares thereof to themselves and their children and then acquire their assets in the name of the company. The fear always is about strangers and family members who deploy culture and tradition to deprive surviving spouses and children of the deceased person of their due entitlement.
In these cases, there will hardly be any controversy as upon the death of a spouse, the surviving wife or husband automatically takes over the assets and if it is in the name of the company, only the shareholders and directors can claim the assets of the company.
There is however a recent practice, whereby a man or woman shares his or her assets in his lifetime and see to the effective takeover thereof. In such a case, the beneficiaries take what is due to them during the lifetime of their benefactor, who is still alive to supervise the process. But the focus of this piece is on situations where the deceased died intestate without a Will.
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 gather together in the name of culture and tradition, to assume power of administration over 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.
Peharps 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, no matter the circumstance. It is like throwing the poor girl away into eternal bondage forever.
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 deceased spouse.
It is worse in Yoruba land, where the native law and custom of this tribe prescribes that a woman has no value in the scheme of things, but is regarded as part of the chattel of her deceased husband, to be shared along with his assets. If at all, she can only claim through her children.
In this day and age, how can any custom regard a human being with blood flowing in her as an asset to be distributed? And the courts have not helped matters, given that even the Supreme Court has upheld this repugnant custom as applicable to all traditional marriages in Yorubaland.
And I know it is the same for many other tribes, if not worse. So, 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 the intestate 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, wihout sharing 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, clothings, books, shoes, jewellery, 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 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.
From all that you have read so far, you would have seen 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.