Docstoc

LEGAL ASPECTS OF ADMINISTRATION OF ESTATE IN NIGERIA

Document Sample
LEGAL ASPECTS OF ADMINISTRATION OF ESTATE IN NIGERIA Powered By Docstoc
					                                        CHAPTER 1

                                     INTRODUCTION
The administration of estate is generally a means whereby a deceased estate is been

shared or administered among his family. When a man dies, he does so in one if the two

circumstances, with regard to the property or estate he leaves behind, namely testate

and intestate. A man dies testate if at the time of his death, he has a valid will by which

he disposes of his property. He dies intestate if he had no will at all, or his will turns out

to be invalid. In each case, the law has detailed and indeed complete provisions for the

administration and distribution of the deceased’s property.


When a man dies, all his powers over his estate devolve on other persons called personal

representatives. Where he makes a valid will in which he appoints executors to

administer and distribute his estate, the executors are his personal representatives.

Where he makes no will i.e. if he dies intestate, or if having made a will, he appoints no

executors or the will turns out to be invalid, certain persons on application are appointed

by the court to administer the estate. These persons are known as administrators.


This project shall be divided into five chapters. In chapter One, we shall discuss the ideas

of property generally and the historical background of the administration of estate in

Nigeria. In chapter Two, we shall discuss the administration of estate in Nigeria, under

which we shall talk about the administration of estate on testate succession (Wills),

intestate succession, customary law and Islamic law.


The Grant and revocation of letters of administration shall be discussed in Chapter Three,

and the procedure for the application of letters of administration and the parties bound

thereby, probate practice and Revocation of grant.
                                                                                      Page | 1
We shall be discussing, the distribution of estate, under the administration of estate in

Chapter Four, where we shall discuss the mode of distribution under the Act, Customary

law and Islamic law.


Finally in Chapter Five, observations shall be made, conclusion drawn and

recommendation given.




1.1     THE IDEA OF PROPERTY


There are two types of property namely real and personal property. Most of the legal

concepts and rules associated with both types of property are derived from English

Common law. Modern law has incorporated many of this concepts and rules into

statutes, which define the types and rights of ownership in real and personal property.


Property may be held in a number of forms, such as through joint ownership, community

property, sole ownership or lease. These different types of ownership may complicate an

owner’s ability to exercise property rights unilaterally. For example, if two people own a

single piece of land as joint tenants then, depending on the law in the jurisdiction, each

may have limited recourse for the actions of the other. For example, one of the owners

might sell their interest in the property to a stranger whom the other owner does not

particularly like.


Legal systems have evolved to cover transactions and disputes that arise over the

possession, used, transfer and disposal of property, most particularly involving contracts.

Positive law defines such rights and the judiciary is used to adjudicate and to enforce

property rights.

                                                                                   Page | 2
1.2     DEFINITION OF THE TERM PROPERTY


Property is any physical or intangible entity that is owned by a person or jointly by a

group of persons. In Roman law, property is defined as follows: ‘jus utendi et abutendi re

sua, quatenus iuris ratio patitur’, that is the right to use and abuse a thing within the limit

of the Law.1 In the strict legal sense, property is an aggregate of rights which are

guaranteed and protected by the government and the term property include not only

ownership and possession but also the right of use and enjoyment for lawful purposes.2


Property was also defined as one’s exclusive right to possess, use, and dispose of a thing

as well as the object, benefits or prerogative which constitute the subject matter of that

right.3 Depending on the nature of property, an owner of property has the right to

consume, sell, rent, mortgage, transfer, exchange or destroy their property, and or to

exclude others from doing these things.


Property Law, in systems derive from English Common Law, is divided into personal and

real property.




1.2.1   PERSONAL PROPERTY


Personal property can be divided into two major categories – tangible and intangible

property. Tangible property includes such items as animals, merchandise and jewellery.

Intangible property includes such right as stock, bonds, patents, and copyright.




1
  P. J Proudhon, Commentary 1989 in Ch. 2
2
  Black’s Law Dictionary, 5th Ed. 1979
3
  Barron’s Law Dictionary, 2nd Ed. 1984
                                                                                       Page | 3
Possession is a property interest under which an individual to the exclusion of all others is

able to exercise power over something. It is a basic property right that entitles the

possessor to continue peaceful possession against everyone else except someone with

superior right. It also gives the possessor the right to recover personal property (often

called chattel) that has been wrongfully taken and the right to recover damages against

wrong doers.


To have possession, an individual must have a degree of actual control over the object,

coupled with intent to possess the object and exclude others from possessing it. The law

recognises two types of possession: Actual and Constructive possession.


Actual possession exist when an individual knowingly has direct physical control over an

object at a given time, Constructive possession on the other hand is the power and intent

of an individual to control a particular item, even though it is not physically in that

person’s control. We have some personal property which have been lost, mislaid and

abandoned.


Personal property is considered to be lost if the owner has involuntarily parted with it

and does not know its location. Mislead property is that which and owner intentionally

places somewhere with the idea that he will eventually be able to find it again but

subsequently forgets where it have been placed. Abandoned property is property to

which the owner has intentionally relinquished all rights. Lost or mislead property

continues to be owned by the person who lost or mislead it. When a person finds lost

goods, the finder is entitled to possession against everyone with the exception of the

true owner.



                                                                                     Page | 4
Confusion and Accession govern the acquisition of or loss of title to personal property,

by virtue of its being blended with, altered by, improved by, or commingled with the

property of others. In CONFUSION, the personal property of several different owners is

commingled so that it cannot be separated and returned to its rightful owner, but the

property retains its original characteristics. Any fungible (interchangeable) goods, such

as grain or produce, can be the subject of confusion. In ACCESSION, the personal

property of one owner is physically integrated with the property of another so that it

becomes a constituent part of it, losing any separate identity. Accession can make the

personal property of one owner become substantially more valuable chattel as a result of

the work of another person. This occurs when the personal property becomes an entirely

new chattel, such as when grapes are made into wine or timber is made into furniture.

Subject it the doctrine of accession, personal property can become real property through

its transformation into a fixture. A fixture is a movable item that was originally personal

property but has become attached to, and associated with, the land and therefore is

considered a part of the real property. For example, a chandelier mounted on the ceiling

of a house becomes a fixture.




1.2.2   REAL PROPERTY


In modern real estate law, real property can be conveyed by a deed, with the intention of

the person conveying the property, the grantor, that the deed takes effect as a

conveyance. The deed must be recorded to give notice as to who legally holds title to the

property. Real property is termed realty, real estate and immovable property. In real



                                                                                   Page | 5
property, an estate is the degree, nature and extent of an individual’s ownership in real

estate.




1.2.3     THE TRANSFER OF PROPERTY


The most usual way of acquiring an interest in property is as the result of a consensual

transaction with the previous owner, e.g. a sale or a gift. Dispositions by Will may also be

regarded as consensual transactions since the effect of a Will is to provide for the

distribution of a deceased person’s property to nominated beneficiaries. A person may

also obtain an interest in property under a trust established for his or her benefit by the

owner of the property. It is also possible for property to pass from one person to another

independently of the consent of the property owner. For example, this occurs when a

person dies intestate, goes bankrupt, or has the property taken in execution of court

judgment.


Finally, different parties may claim an interest in property by mistake or fraud, with the

claims being inconsistent of each other. For example, the party creating or transferring

an interest may have a valid title, but intentionally or negligently create several interests

wholly or partially inconsistent with each other. A court resolves the dispute by

adjudicating the priorities of the interest.




                                                                                     Page | 6
1.3    HISTORICAL BACKGROUND OF ADMINISTRATION OF ESTATE LAW IN NIGERIA


Many systems did not allow testamentary freedom often in ancient societies; the

deceased’s property was automatically divided amongst his family subject to a certain

amount which was reserved for spiritual purposes. For example, in certain ancient

cultures, it was buried with him, e.g. the Gbagyi community in Nigeria or under

Christianity; it was supposed to be left for charitable purposes. With the beginning of the

separation of the church and state, part left to charity became the part a person could

leave as he wished. In many systems of law, the ability to leave your property as you

wish is still curtailed by law, particularly by the demand that part of it are divided

amongst the family.


The devolution of property was historically different according to whether it was land or

personal property that was being dealt with. The systems were, in broad terms,

governed and administered by the Crown and church respectively. The administration of

the deceased’s personal estate was originally carried out by the church, but it passed

gradually into the hand of the deceased’s family being overseen at first by the church and

then by the lay court.


The system of administration of estate and setting out what the deceased wanted to

happen to his property evolved from the Anglo-Saxon spoken word to the formalities

laid down by the Statute of Frauds of 1677 which required a Will, in most circumstances,

to be in writing. However, the formalities required for Wills differed according to the

type of property involved until they were unified under the Wills Act of 1837, which

remains the basis for the current law. All restrictions or testamentary freedom were

gradually removed by the end of the 19th century when such freedom did exist until it

                                                                                   Page | 7
was limited by the introduction of Family provision Legislation by before the Second

World War.


Under the English Common Law, via the reception laws or under state laws, these laws

were enacted to govern the administration of a deceased’s estate in the state. An

example of a state law is the Administration of Estate Law of Lagos State. Lagos State as

well as most western states incorporated the provisions of the Administration of Estate

Law of Western Nigeria 1959, where the state laws of administration of estate are

applicable, Customary Laws are applicable.




                                                                                 Page | 8
                                               CHAPTER 2


2.0        ADMINISTRATION OF ESTATE IN NIGERIA


The administration of estate of a deceased in Nigeria may be regulated by the testate

and intestate disposition. In either of the situations, there have always been

controversies as to the final disposition of the property. The courts have had to

intricately balance the interest of beneficiaries and the enforced intendment of the

deceased. This chapter will therefore examine the various issues involved in the

administration of the estate of a deceased person.




2.1        ADMINISTRATION OF ESTATE ON TESTATE SUCCESSION


The best way for a person to dictate the way in which he would like his estate to be

distributed after his death is by making a Will. By making a Will, a person can leave

specific instructions as to how his estate should be administered and to whom it should

be distributed. The testator has the liberty to dispose of his property in the way he like

and no one can modify the Will. The Court of Appeal held in a decided case that a

testator’s wishes must prevail.4


A Will is defined as a document by which a person makes a disposition of his property,

real or personal, to take effect after his death.5 A Will can also be said to be a legal

document with instructions for the disposal of one’s money or property after one’s

death. A person is said to have died testate haven made a Will before dying. A Will can be



4
    Igboidu V. Igboidu (1999) 1 NWLR Pt 585 p. 27
5
    Osborne’s Concise Law Dictionary, 7th Ed. By Roger Bird, Sweet & Maxwell
                                                                                  Page | 9
ambulatory and revocable. It is said to be ambulatory when it takes effect from the death

of the testator. Consequently, any property dealt with within a Will but disposed by the

testator before his death cannot be affected by the Will. Conversely, property acquired

after the making of the Will may be disposed under its terms.


A Will may be completely revoked, altered or added to by the testator during his lifetime

so long as he complies with the appropriate formalities. It is a mere declaration of the

testator’s intention until his death, thus the Will can be changed as many times as desired

by the testator. The testator must have executed the Will as if it is his last Will and

testament – Aminus Testandi. This is lacking where the testator is insane or was

compelled to execute the Will, but not in the case of a privileged Will. Based on a general

rule, the date of the testator’s death serves as a reference point of giving effect to the

provisions of the Will. A testator can dispose all the property he is entitled to at the time

of his death.6 However, property which cannot be disposed of by the testator under the

applicable customary law cannot be disposed by Will, for instance an unpartitioned

family land in which the testator has no demarcated interest. Generally, testate

succession is regulated by law, and these laws vary from state to state in Nigeria.


It is a settled legal requirement that a Will must be in writing in other to be enforceable

or effective.7 Writing in the context of a Will has been construed to be any type of writing

or print. A Will may be written on a material, it may be typed, printed or lithographed and

according to the judgement given in a decided case, it could be partly typed and

complemented with ordinary writing, either in ink or pencil.8



6
  Thompson Oke V. Robinson Oke (1974) 1 All NLR 255
7
  S.9 Wills Act 1837, S.6 Wills Law 1958, S.67 Succession Law Edict 1987
8
  Goods of Adams (1872) LR 2 P&D 367
                                                                                      Page | 10
A Will must be signed by the testator or by someone in his presence and by his direction

(the person signing can sign in his own name or that of the testator) at the foot or end.

However, a testator may affix his signature at or after or following or under or beside the

signature of the witnesses if there is room at the bottom of the previous completed

page.9 A thumb print was accepted as a good mode of executing a Will.10 Where an

illiterate executes a Will, a special attestation clause should be inserted there in to show

that the content of the Will was read to the illiterate testator who appeared to

understand and approve it. The same is applicable if it is a blind testator. In both cases,

the law demands that the testator must have knowledge and approval of the content of

the Will before probate is granted.11 In other laws such as S.7 of the Wills Law in Lagos,

Oyo, Ogun, Ondo and Bendel states and S.71(1) of the Succession Law Edict 1987, every

Will shall be valid with respect to position of the testator’s signature.


The Will must be signed in the presence of two or more witnesses present at the same

time and who subsequently attest to the Will.12 The witnesses shall sign after the testator

and not before his signature. The witnesses do not need to sign in each other’s presence

but must attest in the presence of the testator. Any adult who can see and testify to the

fact of the execution either by the testator himself or by some other person in his

presence and direction or by the acknowledgment of his signature can be a witness.13


All alterations made after the execution of a Will must be executed in the same way as

the Will itself. The testator and his witnesses are required to sign in the margin opposite



9
   Wills Amendment Act 1852
10
   Estate of Randle (1962) All NLR 130
11
   Instiful V. Christain (1951) 3 WACA 345
12
   S. 9 Wills Law 1958, S.6 Wills Act 1837, S. 70 Succession Law Edict 1987
13
   Estate of Gibson (1949) 2 All E.R 90
                                                                                   Page | 11
the alteration or at the foot or end of or opposite a memorandum referring to such

alteration and written at the end or some other part of the Will.14




2.1.1    CAPACITY TO MAKE A WILL


Every person has a capacity to make a will,15 but there are exceptions to these rules. A

person under the age of 18 years does not have capacity to make a Will.16 There is an

exception where the infant is in actual military service and by law qualified to make

privileged Will. A privileged Will is not expected to conform to the requirements of a Will

by law, both as to capacity and form. Any soldier in actual military service or any mariner

or seaman being at sea may dispose of his personal estate without complying with the

requirements of the Act.17 The Wills Act 1918 extended the scope to include members of

the Royal Air force within the definition of a soldier and allowed privileged testators to

dispose of real property in England and Wales. Members of her Majesty’s Naval or Marine

Forces can make privileged Wills if they were in actual military service irrespective of

whether they were at sea or not. These Statutes form part of the law in Lagos, Northern

and some Southern states. However, in Ogun, Oyo, Ondo and Bendel state, s. 9 of the

Wills Law consolidates the provisions of 1837 and 1918 Act.18 The law extends the

privilege to any member of the air force and mariner or seaman being at sea. One of the

conditions is that the Act requires soldiers, who must be in actual military service,




14
   S. 21 Wills Act 1837, S. 1 Wills Law 1958, S. 82 Succession Law Edict 1987
15
   Wills Act 1837 as amended and Wills Law 1852
16
   S. 61 (1) Succession Law Edict 1987
17
   S. 2 Wills Act 1837
18
   Wills Act 1918
                                                                                  Page | 12
interpreted to mean services in connection with military operation or training for such

operation which is imminent.19


Persons, who are of unsound mind, do not have the capacity to make a Will. Mental

capacity is determined when the Will is made.20 A Will made during a lucid period remains

valid even though the testator subsequently becomes of unsound mind. There is a

presumption in favour of the testator’s capacity. However, if evidence of his

unsoundness is adduced, the burden to establish his capacity is on the party who set up

the Will. Blind and illiterate persons have capacity to make a Will, however care must be

taken to avoid fraud. Where the testator is an illiterate, the thumb print with the

testator’s name written beneath the mark is used.




2.1.2 PRESUMPTION OF DUE EXECUTION


The law presumes that, that which is required to be done has indeed been done. This is

otherwise known as ‘the presumption of regularity’ it is founded on the Latin maxim

‘omnia praesumuntar rita esse acta’. The presumption is used to support a Will, which it

would otherwise have been inequitable to deny probate. Such a Will should, however,

appear on the face of it to have prima facie complied with the statute requirement of the

law with regards to executing and witnessing. The court invariably uses presumption to

ensure that the wishes of the testator are carried out and effect given to the content of

the Will.21 Where it was stated that two things may be laid down as general principles.




19
   Re Wiingham (1949) 187
20
   Balonwu V. Nezianya (1959) 3 ENLR 40, S. 69 (2) Succession Law Edict 1987
21
   Goods of Peverett (1902) 205
                                                                                  Page | 13
       1. The first is that the court is always extremely anxious to give effect to the wishes

           of person if satisfied that they really are their testamentary wishes; and

       2. The court will not allow a matter of form to stand in the way if the element of

           execution has been fulfilled.


A will was made in the year 1890 by the testator who died in 1905.22 The executrix took

no steps to prove the Will and died in 1924. The plaintiff found the document in 1925 in a

desk which had been in possession of the executrix up to the time of her death. Both the

attesting witnesses were dead. All the signatures were proved to be those of the

respective persons alleged to have executed any witnessed the Will. The Court of Appeal

held that the maxim ‘omnia praesumuntar rita esse acta’ applied and accordingly without

further evidence presumed the document was duly executed and that the testator knew

and approved of the content. Also, in a decided case,23 a holograph Will, the only

testamentary document found after the testator’s death, consisted of a small single

sheet of writing paper. On one side appeared the date and the words ‘I give all I possess

to my cousin Mary, Jane and John Harnett’, followed by the signature of the testator. On

the other side and upside down, two names of persons were written in different hand

writing. There was no attestation clause and no indication why these two names were on

the back of the document. The sole surviving cousin now sought to propound the Will.

There was no evidence as to the identity of the two persons who signed at the back of

the document. Held, applying the maxim, probate would be granted since the only

practical reasons why the names of two persons were on the back of the document must

be that they were for the purpose of attesting the Will.


22
     David V. Mayhew (1927) 264
23
     Re Denning Harrett V. Elliot (1958) 2 All ER 1
                                                                                        Page | 14
The presumption can be rebutted by:


     1. Direct evidence of attesting witnesses negates due execution and rebuts

         presumption of due execution.24

     2. Positive evidence of one of the witnesses may rebut.25




2.1.3    REVOCATION OF A WILL


A new Will observing the formal requirements may revoke an earlier Will.26 Revocation

may be by an express clause or from the wording of the Will. The revocation is implied

were the provisions of the new Will are consistent with those of the earlier one.


Burning, tearing or otherwise destroying the same by the testator or by some person in

his presence and by his direction with the intention of revoking a Will, revokes the

same.27


Every Will made by a man or a woman shall be revoked by his or her marriage.28

Marriages celebrated under Customary Law are an exception. There is no revocation

where the Will is made in the exercise of a power of appointment and the property

thereby appointed would pass in default of an appointment to the testator’s heir,

executor, administrator, or statutory next-of-kin. In this situation, revocation by marriage

is restricted to those cases in which the instrument creating the power provides that in

default of appointment the property is to devolve as an intestacy.


24
   Croft V.Croft 11 LT 781, Glover V. Smith (1886) 57 LT 60
25
   Noding V. Alliston (1850) 14 JUR 904
26
   S.20 Wills Act 1837, S.17 Wills Law 1852, S.81 Succession Law Edict 1987
27
   S.17 Wills Law 1958, S.20 Wills Act 1837, S.81 (1) Succession Law Edict 1987
28
   S.18 Wills Act 1987, S.15 Wills Law 1958, S. 79 (1) Succession Law Edict 1987
                                                                                    Page | 15
A Will may be revoked by re-executing the same or executing a codicil which show an

intention to revive the same.29 A Will revoked by destruction cannot be revived.




2.1.4      WILLS UNDER CUSTOMARY LAW


Most customary Law Wills are oral declarations made voluntarily by the testator during

his lifetime. It has to be made by a person of sound mind, in expectation of death, in the

presence of responsible and disinterested persons. While the presence of witnesses is

necessary (not for the purpose of validity but for proof of declaration), they do not have

to be disinterested. The number of witnesses is not laid down, but evidence of more than

one should be satisfactory especially if they are not beneficiaries. Oral Wills under

customary law are described as nuncupative Wills.


Disposition of property by Will is known as ‘Ike-ekpe’ under Igbo customary law. An oral

declaration deals with disposition of property as well as gives direction as to the mode of

burial and funeral ceremonies to be performed for the testator. The subject of the Will

must be specified so as to be easily identified and the beneficiary must be clearly

identified. A person cannot dispose of that which he does not own, thus the property

must be disposable, undivided interest in family or communal life cannot be disposed of

by Will; however any property individually owned by the testator’s family is not essential

in the testamentary disposition of private property in Nigeria. This may be relevant in

respect to the testamentary disposition of family property. The testator of a customary

law will have a free hand in the choice of the beneficiary, who may be a member of his

family or a stranger.

29
     S.19 Wills Law 1958, S.22 Wills Act 1837, S.83 Succession Law Edict 1987
                                                                                   Page | 16
The Nigerian courts have repeatedly held that the reduction into writing of an essentially

customary law transaction does not alter its nature. Writing is no more than mere

evidence of the transaction.30 Thus, it should not affect the nature of the disposition.

Moreover, writing per se is not conclusive evidence that the English form is intended by

the testator. If it is written but does not comply with the requirements of the Wills Act, it

would be treated as valid under customary law.




2.2        ADMINISTRATION OF ESTATE ON INTESTATE SUCCESSION


Where a person does not make a Will, that person is said to have died intestate and his

estate is subject to rules of distribution whether they coincide with his wishes or not.

There are two types of rules of distribution of a person’s estate if he dies intestate. These

rules of distribution are applicable depending on whether the deceased was subject to

customary law or statutory law during his lifetime. Where a person subject to customary

law dies intestate, his estate will be distributed according to his native law and custom or

Islamic law if he is a Muslim. On the other hand, where a person is subject to statutory

law and dies intestate, his estate will be distributed according to the provisions of any

local enactment relating to administration of estate, and where none exist, the common

law intestacy rules will apply.


There are basically three systems of law governing intestate succession in Nigeria. These

are Common Law, Laws of various state and customary Laws.




30
     Rotibi V.Savage (1984) 17 NLR 77, Nwabuoku V. Ottih (1961) 1 ALL NLR 487
                                                                                    Page | 17
Customary law in this context includes Muslim law.31 The factor, which determines which

system is to apply in every case, is the type of marriage contracted by the intestate

person. In the case of Muslims the religion practised by the deceased is also relevant.

Thus if a person contracts a Christian (monogamous) marriage outside Nigeria, the

Common Law of England governs the distribution of his estate. If he contracts a

statutory (Act) marriage in Nigeria, then if he dies domiciled in Lagos or in any of the

states comprising the old western region, then the administration of estate laws will

govern.32 If he contracts a statutory marriage, but dies domiciled in any of the states

comprising the former northern or eastern regions, which are yet to enact their own law

on non-customary succession, then the common law will also govern the distribution of

his estate.33


Finally, if the intestate person was an indigenous Nigerian and he did not contract a

Christian or an Act marriage or even if he did, and no issue or spouse of such a marriage

survived him, his estate will be distributed in accordance with the relevant customary

law. If the intestate was a Muslim, then Islamic law would govern, this is mostly valid in

respect of movable property. The distribution of an immovable property of intestate

person is governed by the Lex Situs i.e. the law of the place where land is situated. Even

here again, there could be further refinements, if the person is one subject to customary

law, or Islamic law, then his personal law will apply, irrespective of the Lex situs.


The 1959 Laws does not apply to situations where a Nigerian who is subject to customary

law contracts a monogamous marriage outside Nigeria. The reasonable solution will be

to apply the provisions of the administration of estate law rather than English Law.
31
   Zaidan V. Zaidan (1974) 4 U I L R 283
32
   Laws of western Nigeria 1959 Cap 1
33
   Administrator-General V. Egbuna & Ors. 18 NLR 1
                                                                                        Page | 18
The provisions of S.36 of the Marriage Act were limited to the colony of Lagos, then a

territory under the direct rule of the Britain Government. When Nigeria became

independent in 1960, Lagos became a Federal territory and S.36 continued to apply to it.

However, after the creation of Lagos state in 1967, the new state government decided to

review it Laws and one of its earliest acts was the repeal of S. 36 of the Marriage Act. This

it did by S.1 of the Lagos state (applicable Laws) amendment edict (1972). 34 By this law,

the administration of estate law of western region was made applicable to the Lagos

state. In 1973, when the laws of Lagos state were promulgated, the administration of

estate law was re-enacted as chapter 1 in the 1994 laws of Lagos state, the current

comprehensive laws governing Lagos. In other words, S.36 of the Marriage Act has not

been an existing law since 1972 and it is therefore not surprising that the current Laws of

the Federation of Nigeria, chapter 218, which is a re-enactment of the marriage

ordinance, contains no provision whatsoever on succession. The provisions of the former

S.36 were deleted and the current S.36 deals with fees to be paid during various aspects

of the process of concluding a statutory marriage. The court of Appeal Benin was said to

be applying a non-existing Law, when it applied S.36 to the distribution of Late Chief T. E.

A. Salubi’s estate.35


For a very long time there were no Nigerian statutes governing the distribution of the

estate of intestates. In the Northern and Eastern states consequently, the Common law
                                      36
rule laid down in Cole V. Cole             which states that ‘when a person who contracts a

Christian marriage outside Nigeria, subsequently dies intestate, domiciled in Nigeria, his




34
   Edict No. 11 of 1972
35
   Dr. T.E.A Salubi V. Mrs Benedicta Nwariakwu & Ors (1997) 5 NWLR pt 505
36
   (1898) 1 NLR 15
                                                                                    Page | 19
estate will be distributed in accordance with English Common law’ continued to apply in

those parts of Nigeria.


The issue of the applicable law in the east (and by inference of north) came up in the

Administrator General V. Egbuna.37 It will be recalled that in Egbuna’s case, it was argued

by the respondent that as S.36 was only applicable to the colony of Lagos, to the

deceased’s personal estate should be distributed in accordance with English law.

Although no local legislation applied to eastern Nigeria, resort could be added to the

Common law and in this case, the rule in Cole V. Cole seemed appropriate in that it

involved general principles as to the application of customary law to such a case. This is

the most unsatisfactory state of affairs for by the application of Cole V. Cole, the law

presumes that a Nigerian marrying towards the end of the twentieth century could

intend that on his death intestate, his property should be distributed by a law enacted in

England in 1670.


Finally, it should be noted that when attempting to determine the law applicable to the

distribution of the estate of an intestate in Nigeria, the following rules should be borne in

mind.


       1. Immovable property is governed by the lex situs, including the conflict of law

           rules of the lex situs.

       2. Movable property is governed by the law of domicile of the intestate at the time

           of his death.

       3. If the immovable property is based in Lagos, Ogun, Oyo, Ondo or Bendel state,

           the administration of estate law applies, when customary law does not apply.


37
     18 NLR 1
                                                                                    Page | 20
      4. If the property involved are movable and the intestate died domiciled in any of

         the five states listed in (3) above, then the administration of estate law applies

         irrespective of the location of the property.

      5. If the immovable property is based in any of the northern or eastern states, the

         rules in Cole V. Cole will apply, and realty will go to the heir at law.

      6. If the person died domiciled in any of the northern or eastern states, then in

         respect of movable property, the law of the state in which he died domiciled will

         apply, irrespective of the location of the property.

      7. It is still possible for the immovable property of an intestate to be distributed in

         accordance with one law, and his movable property by another law.

      8. Where the deceased was subject to customary law, customary law will apply to

         the distribution of his estate, if he was married under customary law at the time

         of his death or if he was not married at all at the time of his death and left no issue

         of a statutory marriage.




2.3      ADMINISTRATION OF ESTATE UNDER CUSTOMARY LAW


The administration of estate under customary law is essentially intestate succession.

Succession under Customary Law applies only to the estate of a person who is subject to

Customary Law, who dies without leaving surviving him, a spouse or a child of a statutory

or Christian marriage. The rules of succession under the customary systems of Nigeria are

as varied as the ethnic groups themselves, so all the discussions shall therefore be limited

to broad generalizations and classifications.




                                                                                       Page | 21
In the Yoruba area for example, succession is based on the concept of family property,

whilst in other parts, particularly amongst the Ibos, and parts of Edo and Delta state, the

concept of male succession prevailed until the Court of Appeal declared such

discrimination ran contrary to natural justice, equity, and good conscience. In other parts

the concepts is that of primogeniture, i.e. succession by the eldest male child. Some

systems have a mixture of concepts.


Nigeria has over 250 different ethnic groups and an even greater number of customary

laws. The distribution of a deceased’s estate under customary law is based on the

customary doctrines of inheritance and succession of property. These doctrines are

governed by the canons of lineal descent along paternal or maternal lines. Paternal lines

are lines of descent traced through the father while maternal lines are lines traced

through the mother. For example, the line of descent governing inheritance of the

people in Yoruba land is paternal, while that governing the people of Afikpo, Abriba and

Ohafia in the eastern part of Nigeria is maternal. It should be noted that the customary

law that will be applied in most cases would be the customary law of the deceased, and

this is so even when he died resident outside his home area, or left landed property

outside his ethnic area. The lex situs rule in respect of land subject to Customary Law is

applied subject to the provision in all High Court Laws that although in land matters

generally the Customary law shall be the Customary Law of the place where the land is

situated, in cases and matters arising from inheritance, the appropriate customary law

shall be the customary law applying to the deceased.38




38
     Tapa V. Kuka (1945) 18 NLR 5
                                                                                  Page | 22
It would also appear from the decision of Brookes, J. in the Estate of Alaya,39 that on the

death intestate of a Muslim from the southern part of Nigeria and from the non-Muslim

part of the north, the devolution of his estate will be governed by his customary law and

not Muslim law. The court held in this case that Ijebu-ode (in which in fact Muslims are in

the majority) ‘is not a Mohammedan country’. This is due no doubt to the continued

domination or prevalence of customary law over Muslim law in the lives of even the

Muslims in that area. It would appear that ‘Mohammedan country’ in the country

context, is strictly, the Muslim North of Nigeria. This is further confirmed by the court’s

view that the Maliki code is limited to the Northern Emirates. However, the question as

to what is the deceased’s customary law could raise intractable difficulties in some cases.

What, for example, is the customary law of a man who having left his place of origin,

settles in another land amongst a different people, who have a totally different language

and customary law from his place of origin?


The obvious answer that he carries his customary law with him does not necessarily

resolve the problem. What if by his conduct, the deceased abandoned his previous way

of life and embraced the customs and way of life of his new found home until his death?

What would be the customary law of his descendants, seven generations later?


The decision of the Supreme Court in a case40 to the effect that a person belonging

originally to one ethnic group could be a process involving time , association, marriage,

personal wishes and manner of life, become assimilated into and thereby legally acquire

the status of another ethnic group, is of great significance, for it broke new ground, gave

legal backing to the promotion of social and national integration and established very

39
     (1946) 18 NLR 88
40
     Adeniyi Olowu & Ors V. Olabowale Olowu & Anor (1985) 3 Nwlr Pt. 12 p. 372
                                                                                  Page | 23
clearly for the benefit of legal philosophers and theoreticians, that courts in fact make

laws.


Previously, it was believed that no Nigerian could legally change his ethnic group. The

prevailing attitude was, ‘once an Ibo, always an Ibo’, irrespective of the fact that the

family of the propositus had settled amongst the Yorubas of Oyo town seven

generations previously. The settler’s family would retain links with its ‘motherland’ no

matter how tenuous. The dead of the family would be conveyed ‘home’ for burial. Even if

the settler’s family wanted to join the ethnic group of the host community, the host

community would not allow them to forget that they were strangers.




2.4        ADMINISTRATION OF ESTATE UNDER ISLAMIC LAW


Islam is unique among religious Laws in that, unlike common law, it is predicated neither

on a tangible church structure nor on a specific state format.41 Islamic jurisprudence, with

its unique roots, also differs substantially from the legal traditions of Western Europe.

Islamic law is not a monolithic body of rules and regulations. Rather, there are several

different ‘Islamic Laws’ depending upon whether one is a traditional Sunni, a secular

Sunni, a shite, or one of a number of smaller Islamic schools of thought. The breadth of

discrepancies that exist between Shi’a Islam, the minority view, and Sunni Islam, the

majority, along with its seven primary sub-schools of Islamic interpretation, is too great

to discuss in a short format. For that reason, I rely primarily on traditional Sunni Islamic

law for the Islamic perspective as I look at the narrow area of succession in Islam.



41
     Joseph Schahct, An Introduction to Islamic Law, 2 (Oxford University Press, 1964)
                                                                                         Page | 24
The underlying principle of the law of succession in Islam is a composite regulations as to

who inherits and who is to be inherited, as well as what shares go to their heirs. Islam like

all other cultures and religion recognizes that death of a person brings about transfer of

most of his rights and obligations to his survivors. The transmissible rights to

compensation etc. and such rights as may relate to transmissible obligations those,

which are capable of being satisfied out of the deceased’s estate. Thus, what can be

inherited is the reminder of the estate after the payments of funeral expenses discharge

of debts and obligations, and settlement of Wills.


To understand the Islamic laws of inheritance as a whole, it is necessary to consider the

system of inheritance that operated within Arabian Peninsula prior to the revelation of

the Quranic injunctions on inheritance. Although we do not have the exact details of the

system that operated prior to the Quranic revelations we do know that the system of

inheritance was confined to the male agnate relatives (asaba) of the deceased. In this old

customary system only the male agnates (asaba) were entitled to inherit. Amongst the

male agnates there were rules of priority which determined which of the surviving male

agnates were entitled to inherit. It is likely that the rules of priority that operates

amongst the asaba in sharia are a carry-over of the old customary agnatic system. In

Islamic law, the son takes priority over the father, who in turn takes priority over the

brothers, who in turn takes priority over the paternal uncles.


Unlike succession in the West, Islam’s reform in inheritance modified the traditional

agnate, or patrilineal, method of succession. Whereas all other ancient laws favoured

exclusion of female heirs and her matrilineal lines of descent or comradeship in arms, the

Islamic system was founded on two bases, natural, bi-lineal relationship through

                                                                                    Page | 25
marriage. It elevated the female to a ‘sharer’, albeit at one-half the share, of the male.

This status was unlike any other culture of its region and time in its recognition of the

right of a female relative to inherit. It thus altered the traditional law of primogeniture,

promoting a more equitable division among the successors. Again, the right of Will was

recognized but held in check by listing the fight to only a third of the total estate that is

left. Every Muslim is urged by the prophet to write his Will as soon as possible and to

have it certified by two qualified witnesses.


Inheritance under Islamic law is ordained by Allah and, therefore, should be complied

with by every Muslim on earth. The law is basically contained in two parts of the same

chapter – An-Nisah. Q4:11 – 12, 176, although other chapters talked about it as well. As

could be discerned, it contains five legal regulations about inheritance. The law stipulates

that:


   i.      both men and women have a share in it

   ii.     it must be divided among all heirs, however little or insignificant the share may

           be, so much so that if a piece of cloth is left, this must be cut in such piece that

           each heir that is entitled shall have a piece. On the other hand, the law permits

           an heir to buy the share of other heirs, only by natural consent.

   iii.    The law applies to all sought of property

   iv.     The right of inheritance becomes valid only when the deceased leaves some

           property behind without a hindrance of a debt.

   v.      The law also implies that the near in blood is nearer in heritage i.e. that when

           the nearest relatives are alive, the distant relative have no rights to

           inheritance.

                                                                                     Page | 26
                                         CHAPTER 3


3.1        GRANT AND REVOCATION OF LETTERS OF ADMINISTRATION


A grant of representation is an order of the court which confirms (in the case of an

executor) or confers (in the case of an administrator) the authority of the personal

representative to administer the estate of the deceased and which indicates the terms

on which the estate of the deceased and which indicates the terms on which the estate is

to be administered. In the case of an uncontested Will, the process of obtaining a grant is

administrative and merely involves the lodging of certain documents as required by law

at the probate registry of the High Court.


There are broadly three types of grants:


      i.   Probate, which is issued when there is a valid Will and one or more executors have

           been appointed by the testator.

      ii. Administration with Will annexed which is issued where there is a Will, but no

           executor is appointed under the Will, or even if one or more is appointed none of

           them has accepted the appointment or survived the testator.

      iii. Administration which issued where the deceased died intestate or where his Will

           was invalid.


Letters of administration, can be revoked if the beneficiaries on whose behalf he was

administering the estate being minors at the time of the grant, have subsequently

become adults and therefore in a position to administer the estate themselves. In such a

situation the beneficiaries can apply to court for a revocation of the letters of



                                                                                    Page | 27
administration issued to the Administrator-General and the appointment of some form

their numbers as the administrators of the estate.


Another circumstance where the letters of administration can be revoked is provided for

in s.20 of the Administrator-General’s Law. This arises if an executor or next of kin of the

deceased who has not been personally served with a citation or who has not had actual

notice of it in order to establish his claim to probate of such a Will or Letters of

Administration, subsequently establishes to the satisfaction of the court a claim to

probate of such a Will or to such letters of administration in preference to the

Administrator-General. In such a case, the court may revoke any probate or letters of

administration granted the Administrator-General and grant them to such an executor or

next-of-kin as the case may be. Before the court can exercise its powers in this regard,

such application by the executor or next-of-kin must have been within six months of the

grant of letters of administration to the Administrator-General and the court must be

satisfied that the applicant has not been guilty of unreasonable delay in making the

application.




3.1    PROCEDURE FOR THE APPLICATION OF LETTERS OF ADMINISTRATION


Letters of administration is a formal document issued by a court appointing a manager of

the assets and liabilities of the estate of the deceased in certain situations. Where the

deceased left no Will or the executor named in a Will is unable or unwilling to serve, the

courts must appoint an administrator. This appointment is made by issuing a short

document called letters of administration, which is a decree that serves as evidence of

the administrator’s authority.
                                                                                   Page | 28
If certain persons have applied for a grant of letters of administration in respect of an

estate and are unable to establish their claims to the grant or fail to give any required

security, the court may grant letters of administration to the Administrator-General.

Where the administration of the estate is not completed within 18 months after the grant

of letters of administration, the Administrator-general must file an interim statement of

account in court which the interested parties are entitled to examine. When the estate of

a deceased person is at risk of dissipation and wastage etc., as a result of dispute

between executors or between executors and beneficiaries, the court is empowered to

appoint an administrator pendente lite, to manage the estate pending the determination

of the dispute in a court of law. Such an appointee does not need to apply for letters of

administration since the court will take judicial notice of the appointment.


In respond to a challenge of the authority of an administrator pendente lite to operate in

the absence of letters of administration, the Court of Appeal in Lagos declared thus (per

Aderemi J.C.A):


       ‘His appointment to my mind carries the force of law. My understanding of

       the contention of the cross-appellants is that because the administrator

       pendente lite has not formally applied for and obtained letters of

       administration, he lacks the legal capacity to perform the functions

       appurtenant to his office with relation to the estate of the deceased. With

       due respect, I cannot conceive any other force of law which is higher than

       that given by the court in the course of the appointment….’




                                                                                 Page | 29
Lastly, a court has extensive discretionary powers to matters relating to the

administration of estate, particularly in intestate persons, and also revoking letters of

administration.




3.2     IMPORTANCE OF LETTERS OF ADMINISTRATION AND PARTIES BOUND THEREBY


By section 26 of the Administration of Estate Law, ‘ the court shall have regard to the

fights of all persons interested in the estate of the deceased person or in the proceeds of

the sale thereof, and in particular, administration with the Will annexed may be granted

through a devisee or legatee.’ Thus the first group of persons most entitled to letters of

administration are the beneficiaries of the estate. Usually, this would be the children and

the spouses. But other relations are eligible. This includes brothers, sisters, half-brothers,

half-sisters, aunts, uncles, nephews, nieces, and in some cases friends. Anyone entitled.

Kazeem, J. took the view that anyone entitled to inherit on the deceased’s intestacy is
                                                        42
entitled to a grant of letters of administration.            He therefore accepted all relations

listed43 which in addition to the list above includes parents or grandparents. This is in fact

with a law44 which states that where the deceased died wholly as to his estate,

administration shall be granted to one or more person interested in the residuary estate

of the deceased if they make application for the purpose.45 Thus a complete stranger is

prima facie not entitled to a grant of letters of administration.




42
   Joseph Okesole & Ors V. Emily Olabisi & Anor, Unreported, High Court of Lagos State, Lagos Judicial
Division (Kazeem, J. 24th October 1975) Suit No. LD/640/74.
43
   S.49(1)(e) Administration of Estate Law 1959
44
   S.26(1)(a) Administration of Estate Law 1959
45
   Dadson Ogbe V. Dadson Ogbe, Unreported, Uche Omo, J. High Court of Midwestern State Warri Judicial,
4th November 1976. Suit No. W/135/75
                                                                                            Page | 30
A wife is pre-eminently entitled to apply for letters of administration with regards to her

deceased husband’s estate46. In the final analysis, the choice of which amongst all eligible

persons should obtain a grant is a matter for the courts discretion. The court has a

discretion as to persons to whom letters of administration is to be granted and such

discretion is to be exercised on the basis of materials before it and with due regard to the

rights of all persons interested in the estate of the deceased person or proceeds of the

sales thereof.47


The court granted letters of administration to the brothers of the deceased’s first wife

(who died before the deceased) in preference to the widow of the deceased and mother

of the deceased’s two children.48 This was due to the patent interest of the grantee in

the estate and his clearly demonstrated integrity and sense of responsibility and sense of

responsibility. It should be noted that a grant of administration of the personal estate of

a person who dies intestate, does not cover the real or immovable estate of the

deceased. The authority of the grantee of such letters of administration is unlimited to

the personal estate of the intestate.


A respondent, who claimed to be the brother of the deceased, Patrick Tanyi, obtained a

letter of administration in respect of Patrick’s personal estate after the latter’s death.

Patrick’s only wife, married to him under customary law, was living with him at the time

of his death. The property the couple lived in belonged to Patrick. After Patrick’s death,

the respondent attempted to take over the entire property of Patrick, on the basis of the

letter of administration.49 The respondent succeeded at the trial court and at the Court


46
   Okon V. Administrator-General of Cross River State (1992) 6 NWLR (Pt. 248) p. 473
47
   Asere V. Asere (1992) 6 NWLR pt. 197 at 316
48
   Aruwaji V. Asaboro, Unreported, High Court Lagos State Suit No. LD/715/71
49
   Christina Ugu V. Andrew Tabi (1997) 7 NWLR pt. 513 at 368
                                                                                       Page | 31
of Appeal, but at the Supreme Court, a grant of letters of administration in respect of

personal estates does not cover the administration of real property.




3.3    PROBATE PRACTICE


Probate practice is a neglected area of practice for most legal practitioners in Nigeria.

Work related to probate succession and trust is handled by the law firms. In some

instances overlap may occur where issues relating to litigation, family law or tax are

involved.


After a testator has died, a probate proceeding may be initiated in court to determine the

validity of the Will or Wills that the testator may have created, i.e. which will satisfy the

legal requirements and to appoint an executor.


Probate is the process of providing and registering in the courts the last Will of a

deceased person. It is usually the executor of the Will who administers the estate and

handles the disposal of the deceased assets and debts. In order to get authority to do

this, the executor may have to obtain a legal document called a ‘grant of probate’.




TYPES OF PROBATE PRACTICE


Probate practice can be compartmentalised into contentious and non-contentious

practice.


Non-contentious probate practice can be described as practice involved with the

obtaining of probate or administration in a non-litigious way.

                                                                                    Page | 32
Obtaining probate under non-contentious probate practice is also known as obtaining

probate in common form and the process is governed by the probate Non-contentious

Procedures Rules.50 The procedure involved in obtaining a grant of probate or a letter of

administration in a probate registry has already been discussed.


Anyone interested in a deceased’s estate may file a notice in court to prohibit the

issuance of a grant of representation.51 A notice to prohibit grant is effective for three

months and may be renewed from time to time, but it does not affect a grant made on

the day the notice is filed. Similarly a caveat may be entered by any person who intends

to prevent the issuance of a grant without notice to himself. A person who enters a

caveat is called a caveator. A caveator must state his interest in the estate and the court

must be satisfied with his interest to permit the caveator’s application. A caveat prevents

the sealing of a grant until the objections of the caveator have been dealt with but it

does not affect a grant made on the day caveat is entered. The caveat is entered in the

probate registry with the approval of Chief/Probate Registrar.


A caveat was entered in the probate registry by a beneficiary of a deceased’s Will (the

caveator). Subsequently, the other beneficiaries of the Will instituted an action against

the caveator and judgment was entered in their favour.52 The caveator appealed against

the judgment of the trial court but pending the appeal, the probate registrar, relying on

the trial court’s decision, issued a grant to the other beneficiaries of the appeal, the

Supreme Court held that no grant could be sealed by the Probate Registrar if he is aware




50
   Order 58 Pt. II High Court of Lagos State (Civil Procedure) Rules & Order 50 of the Uniform Court Rules.
51
   Order 58 Rules 13 & 14 of the High Court of Lagos State (Civil Procedure) Rules & Order 49 Rules 13 & 14 of
the Uniform Court Rules.
52
   Dan Jumbo V. Dan Jumbo (1999) 11 NWLR pt 627 p. 445
                                                                                                   Page | 33
of an effective caveat even where an appeal by the caveator in respect of that caveat is

pending in court.


While under Lagos State High Court Rules, a caveat is valid for three months after which

time it ceases to have effect,53 under the Uniform Court Rules, a caveat will remain if

force for six months. A caveator may withdraw his caveat and must give notice of his

withdrawal at the Probate Registry.54 The Chief/Probate registrar has the discretion to

discontinue a caveat whenever he thinks fit to do so.


A warning as a notice can be made to a caveator. It is entered by a person whose

application for a grant has been stopped by a caveat. The person making the warning is

known as ‘the person warning’. The warning is made to the caveator to appear before

the Probate Registry within eight (8) days from the day the warning is served on the

caveator. The caveator must give the reasons for the caveat or state any contrary

interest he may have in respect of the deceased’s estate.55 If the caveator fails to appear

before the Probate Registry, the person warning may notify the Probate Registry that

the warning had been duly served on the caveator’s and the caveat thus ceases to have

any effect.56


Equally, a search may be carried out in situations where a person wishes to know when a

grant was issued. The aim of the search is not to prevent the issuance of the grant, but to

know when legal proceedings against the personnel representatives of the estate can be




53
   Order 58 Rule 77(8) High Court of Lagos State (Civil Procedure) Rules.
54
   Order 58 Rule 77(8) High Court of Lagos State (Civil Procedure) Rules & Order 50 Rule 57 of the Uniform
Court Rules.
55
   Order 58 Rule 77 (7), (8) & (9) High Court of Lagos State (Civil Procedure) Rules.
56
   Order 58 Rule 77 (11) High Court of Lagos State (Civil Procedure) Rules & Order 50 Rule 57 (11) Uniform
Court Rules.
                                                                                               Page | 34
instituted. A search may also be necessary when the title to certain properties is under

investigations. Finally, a citation may be taken out.


A citation is a notice made by a citor to any person cited in the document. A citor must be

a person interested in the deceased’s estate. A citation requires the person cited in the

notice to appear before the Probate Registry within eight days to obtain or refuse

probate or administration or to prove the validity of the document alleged to be a Will.57

A citor is usually a person who will be entitled to a grant in the event of the person cited

renouncing his right thereto.58 A person cited must appear before the Chief/Probate

Registry for an order, for a grant to himself. Where a person cited in a citation has

appeared before the Chief/Probate Registrar must have failed to apply for a grant, the

citor can apply to the Chief/Probate Registrar for a summon for the appropriate order to

be served on the person cited. A citor must first enter a caveat in the probate Registry

before entering a citation.59


Contentious probate practice, on the other hand, involves an aggrieved party litigating

on certain areas of probate by instituting legal actions in the court. A probate

practitioner when dealing with contentious probate matters must from the begging have

a strategy or game-plan. The issues involved in the potential litigation will need to be

examined so that materials can be collected to determine the nature of the claim to be

filed. Solicitors must anticipate at the outset, the likely consequences of any litigation, if

for example a Will is proved invalid, it will be expected that the person challenging the


57
   Order 58 Rule 77 (1) High Court of Lagos State (Civil Procedure) Rules & Order 50 Rule 59 (1) Uniform
Court Rules.
58
   Order 58 Rule 78 & 79 High Court of Lagos State (Civil Procedure) Rules & Order 50 Rule 58 & 50 Uniform
Court Rules.
59
   Order 58 Rule 78 (7) High Court of Lagos State (Civil Procedure) Rules & Order 50 Rule 58 (7) Uniform
Court Rules.
                                                                                                Page | 35
validity of the Will, would be a beneficiary under the rules of intestacy or customary law,

whichever is applicable. Certainly, such a person should be in a better position than if the

Will was left unchallenged.


Where litigation in probate actions is begun by writ of summons, such a course of action

shall be preceded by the filing of an affidavit by one of the plaintiffs. 60 The affidavit must

show whether the plaintiff is claiming as a creditor, executor, administrator, residuary

legatee or legatee, next-of-kin, devisee, or in any other character.


Finally, the State High Court have jurisdiction to hear and determine any civil proceeding

in the state including probate matters. The High Court of Lagos State for example, has

the power to adjudicate on matters relating to probate cases and proceedings in

conforming with the law and practice in England.61 Suits in respect of administration and

probate matters are instituted and carried on the same manner, subject to the same

rules and procedure as suits in respect of ordinary civil claims.62




3.4     REVOCATION OF GRANT


Where an executor or administrator of an estate demonstrates a clear lack of interest or

commitment resulting in poor administration of the estate, the grant may be revoked on

application to court. In the GOODS OF WILLIAM LOVEDAY,63 Jeanne, P. stated as follows

in the course of his judgment.




60
   Order 6 Rule 5 High Court of Lagos State (Civil Procedure) Rules.
61
   S. 16 High Court law of Lagos State Cap. 60 L.L.S of 1994
62
   Order 58 Rule 15 & 99 High Court of Lagos State (Civil Procedure) Rules.
63
   (1900) Probate Div. 156, 363, 374
                                                                                     Page | 36
           ‘After all, the real object which the court must always keep in view is the due

           and proper administration of the estate and the interest of the parties

           beneficially entitled thereto, and I can see no good reason why the court

           should not take fresh action in regard to an estate where it is made clear that

           its previous grant has turned out abortive or ineffective. If the court has in

           certain circumstances made grants in the belief and hope that the person

           appointed would properly and fully administer the estate, and if it turns out

           that the person so appointed will not or cannot administer, I do not see why

           the court should not revoke an inoperative grant and make a fresh grant.’


One obvious grant on which an administrator’s authority can be revoked is that of

negligence and dereliction of duty on his part.64 A grant can also be revoked if it was

obtained by falsehood i.e. where the grantee does not stand in relation to the deceased

as he asserted in his application for grant of letters of administration. Thus, it is stated in

the Halsbury’s Law of England as follows ‘a grant may be revoked where it has been

obtained upon a false objection, whether made fraudulently or in ignorance where the false

suggestion obscures a defect in title of grant.’ Thus, such a false suggestion will lead to a

revocation if it has a decisive effect on the court in making the original grant. If it did not

have any effect or if the effect was minor, then he court may not exercise its power to

revoke. In Lasekan V. Lasekan,65 the widow of the deceased falsely claimed in her

application that she was the mother of the two children of the deceased. The court did

not revoke her grant, partly because the plaintiff’s children did not seek the relief and

also because she would still have been eligible as a widow, simpliciter to obtain a grant.


64
     Aderigbe V. Aderigbe, Unreported, High Court, 342, 344, 347 & 372
65
     Unreported Suit No. LD/727?71, Lagos State High Court, 324, 344, 347 & 372
                                                                                        Page | 37
Finally, a court has the power to revoke a grant of representation.66 The court’s power to

revoke a grant of probate depends on the courts inherent jurisdiction. The court may

revoke a grant of administration.67 The National Committee concluded in certain that

there was no need to include any further provisions in the draft legislation relating to the

court’s power to revoke a grant.




66
     Para. 301 (1) (a), Supreme Court Act 1970
67
     S.66 (a) Probate and Administration Act, 1898
                                                                                   Page | 38
                                                CHAPTER 4


4.0        DISTRIBUTION OF ESTATE UNDER ADMINISTRATION OF ESTATE


There are various means in which a deceased’s estate can be administered. This chapter

therefore discusses the various means of the administration of a deceased’s estate.




4.1        MODE OF DISTRIBUTION UNDER THE ACT


The manner of distributing a deceased’s estate and the priority of persons to which the

estate is distributed by intestate succession is being provided for.68 If the intestate leaves

a husband or wife, and leaves no issue and no parents or brother or sisters of the whole

blood or issue of a brother or sisters of the whole blood, the residuary estate shall be

held in trust for the surviving husband or wife absolutely. In the circumstance where the

deceased person leaves only a surviving spouse and no other relation, the surviving

spouse takes the whole estate absolutely. If the intestate leaves an issue, the surviving

husband or wife shall take the personal chattels absolutely and, in addition, the

residuary estate of the intestate shall stand charged with the payment of a net sum of

money equivalent to the value of one-third of the residuary estate free of death duties

and costs, to the surviving husband or wife with interest there and from the date of the

death at the rate of two and a half naira per annum until paid or appropriated and

subject to providing for that sum and the interest thereon, the residuary estate, other

than the personal chattels shall be held as to one-third upon trust for the surviving

husband or wife during his or her live and subject to such life interest, on the statutory


68
     S.49 (1) Administration of Estate Law of Lagos State.
                                                                                     Page | 39
trust for the issue of the intestate and as to the other two-thirds on the statutory trusts

for the issue of the intestate.


Where the intestate dies leaving a spouse and issue, the surviving spouse takes all the

personal chattels as well as the right to the monetary equivalent of one-third of the

residuary estate with a two and a half naira per annum interest, the interest is to be paid

out of the estate’s income. The remaining two-thirds of the residuary estate id divided

between the issue and the surviving spouse (for life) upon trust at two-thirds and one-

third share respectively. When the surviving spouse dies, the one-third share goes to the

issue of the intestate. If the intestate leaves a parent, a brother or sister of the whole

blood, or issue of a brother or sister of the whole blood, but leaves no issue. The

surviving husband or wife shall take the personal chattel absolutely and, in addition, the

residuary estate of the intestate other than the personal chattel shall stand charged with

the payment of a net sum of money equivalent to the whole of two-thirds of the

residuary estate free from costs to the surviving husband or wife with interest thereon

form the date of the death at the rate of two and a half naira percent per annum until

paid or appropriated, and subject to providing for that sum and the interest thereon, the

residuary estate other than the personal chattels shall be held as to one-half of the trust

for the surviving husband or wife absolutely and as to other half, where the intestate

leaves one parent or both parents where or not brothers or sisters of the intestate or

their issue also survives the trust for the parents absolutely or, as the case may be, for

the two parents in equal shares absolutely. Also where the intestate leaves no parent, or

the statutory trust for the brothers and sisters of the whole blood of the intestate. When

an intestate dies without leaving an issue but leaves a spouse and parent or parents, or

any sibling of whole blood or issue of such chattel absolutely as well as the monetary
                                                                                  Page | 40
equivalent of two-thirds of the residuary estate with two and a half naira per annum

interest. The remaining one-third of the residuary estate would be held in trust in equal

shares, one-half of it for the surviving spouse and the other half for the parent or parents

or whence no parents, for the siblings of whole blood, or the issue of such siblings. If the

intestate leaves issues but no husband or wife the residuary estate of the intestate shall

be held on the statutory trust for the issue of the intestate. Where the intestate dies,

leaving no souse but leaves issues, the residuary estate will be held on statutory trust for

the issue. If the intestate leaves no husband or wife and no issue but both parents, then

the residuary estate of the intestate shall be held in trust for the father and mother in

equal shares absolutely. Where the intestate dies leaving no spouse and no issue but only

parents, the parents are entitled to the residuary estate in equal shares absolutely. If the

intestate leaves no husband or wife, and no issue and no parents, the residuary estate of

the intestate shall be held in trust for the following persons, living at the death of the

intestate, and in the following order and manner namely.


Firstly, on the statutory trust of the brothers and sisters of the whole blood of the

intestate, but if no person takes an absolutely vested interest under such trust, then

secondly, on the statutory trust for the brothers and sisters of the half blood of the

intestate, but if no person takes an absolutely vested interest under such trust, thirdly for

the grandparents of the intestate and if more than one survives the intestate, in equal

shares but if there is no member of this class, fourthly, on the statutory trusts for the

uncles and aunts of the intestate being brother or sisters of the whole blood as a parent

of the intestate, but if no person takes and absolutely vested interest under such trusts,

then fifthly, on the statutory trust for the uncles and aunts of the intestate being

brothers and sisters of the half blood of a parent of the intestate.
                                                                                    Page | 41
Where the intestate died leaving no spouse and no issue or parent, the residuary estate

goes to the following persons who must be living at the time of the intestate’s death in

order of priority.


  i.    Brothers and sisters of the whole blood

  ii.   Brothers and sisters of the half blood

 iii.   Grandparents in equal shares and if only one grandparent, he or she will take

        absolutely.

 iv.    Uncles and aunts of the whole blood

 v.     Uncles and aunts of the half blood




Finally, the residuary issues held on statutory trusts for all the persons listed except the

grandparents. In default of any person taking an absolute interest under the foregoing

provisions, the residuary estate of the intestate shall belong to the state as bona

vacantia, and in lieu of any right of escheat. Where there are no beneficiaries to the

intestate’s estate, the residuary estate will belong to the state.




4.2     MODE OF DISTRIBUTION UNDER CUSTOMARY LAW


In the systems of customary law, to which the children succeed to their parent’s estate

to the exclusion of other relations, there are basically two modes of distribution; per

stirpes, known among the Yorubas as idi-igi and per-capita, known as ori-ojori among the

Yorubas.



                                                                                   Page | 42
Under the idi-igi system, the deceased father’s property is shared into equal portions in

accordance with the number of wives who had children by him. The children of each wife

will then divide their portion as they like between themselves. This remains the basic

mode of distribution in Yoruba customary law. It is only when there is a dispute between

the children about the mode of distribution, that the head of the family is entitled to

decide whether or not to adopt the alternative mode of distribution, i.e. the ori-ojori, the

division of the estate amongst all the children in equal shares.69 In Danmole V Dawodu70

where this custom was challenged as been contrary to natural justice, equity and good

conscience, the Supreme Court rejected this views and confirmed that it was the

prevailing custom among the Yorubas and that it was not contrary to natural justice.

Having very carefully considered all the evidence now before us, I would hold that:


      i.    Idi-igi is an integral part of the Yoruba native law and custom relating to the

            distribution of intestate estates.

     ii.    That idi-igi is in full force and observance at the present time, and has now been

            abrogated.

     iii.   That idi-igi is the universal method of distribution except where there is a dispute

            among the descendants of the intestate as to the proportion into which the

            estate should be divided.

 iv.        That where there is such a dispute, the head of the family is empowered to and

            should decide whether ori-ojori ought, in that particular case, to be adopted

            instead of idi-igi.




69
     Danmole V. Dawodu (1958) 3 FSC 46; Administrator-General V. Olubamiwo (1971) 2 All NLR 77
70
     (1958) 3 FSC 46
                                                                                                 Page | 43
     v.    That ori-ojori is a relatively modern method of distribution adopted as an

           expedient to avoid litigation.


I would further hold that although, as the learned trial judge says, ‘equity is equity’, idi-igi

is not repugnant to the natural justice, equity and good conscience.in this particular case

to hold otherwise would be, in my view, to take a decision bearing the stamp of that

repugnant, because all interested parties originally agreed to idi-igi being adopted, and it

was thereafter observed for 10 years. This decision has been consistently followed ever

since and has been confirmed by the Supreme Court itself in G.B.A Akinyede & Ors V.

Yaya Mustapha & Ors.71 Indeed in this case, the Supreme Court appeared to have

strengthened the rule by stating that even after the family head has decided to adopt ori-

ojori method, he is free to revert to the idi-igi system subsequently. The family head in

this case originally adopted the ori-ojori system because it would benefit the younger

members of the family who were still undergoing various forms of education. It was held

that he was entitled to revert back to the idi-igi system after these younger members of

the family had completed their education, 27 years later in spite of its legally unassailable

position, it is coming under increasing attacks. Adefarasin J. having upheld the idi-igi

system as the prevailing one added ‘my personal view is that the distribution by the idi-igi

system is unfair and leads to great hardship! Nevertheless, it is the acceptable Yoruba

custom which applies in this case’.72 It should be noted that the idi-igi system is an

exclusive Yoruba system.


The rules of customary law on distribution in Ibo land are not uniform; however, certain

similarities can be identified. In Ibo land, when a man dies, all his property passes to the

71
     Unreported, 28/2/68, Suit No. SC. 216/1967
72
     Salako V. Salako, Unreported, High Court of Lagos State, Suit No. M/160/62, decided on 13th May 1965
                                                                                                   Page | 44
eldest son, ‘okpala’, and where he has more than one wife, the eldest son of the wives

inherit jointly. The eldest son must manage and administer the estate on trust for the

benefit of the whole family, his brothers especially. The eldest son inherits his father’s

personal staff, ‘ofo’, other items of worship; his title if any existed prior to his death and

the ‘obi’ or place where his father lived before his death. Where there is no issue, the

deceased’s brother or uncle inherits, but only as a trustee or custodian to administer the

deceased’s estate for the benefit of the deceased’s family.73 The distribution of the

deceased’s personal estate will depend on the particular Ibo community where he is

from.


In the case of a married Ibo woman, her maiden family will inherit her property, which

was acquired before marriage. Her husband will inherit the property acquired during her

marriage. In most parts of the east of Nigeria, a widow cannot inherit her husband’s

estate when he dies and in fact she is sometimes regarded as property to be inherited by

his heir.


In Idoma Law and Custom, the brother of the deceased as next-of-kin inherits the

deceased’s property including the wife and children. This is known as levirate marriage.

The Supreme Court upheld the contention that a married woman has no right to succeed

to the property of her deceased husband under the customary law of Onitsha.74 Other

persons who cannot inherit include illegitimate children and members of the Osu caste.

An Osu is a person sacrificed or whose ancestor is sacrificed to a god. The Osu caste




73
     Ngwo & Nwojie V. Onyejana (1964) 1 All NLR 352
74
     Nezianya V. Okagbue (19963) All NLR 358
                                                                                     Page | 45
system was abolished in 1956 by the Abolition of Osu System Law, though it still exists in

practice.75 Also prohibited from inheriting are murderers and strangers.


In some part of the north, it is generally accepted that the first in line as heirs to a

deceased person’s property are his sons and the next, his brothers. Females are excluded

from inheriting a deceased man’s property although they inherit their mother’s entire

movable properties. Land, whether owned by a man or a woman is inherited by the

males of the family.


Finally, some customary law system share property according to the number of children,

and not necessarily according to the number of wives. Any variations that may exist are

based either on seniority, the eldest getting larger portions or according to sex, males

getting larger portions than females.




4.3        MODE OF DISTRIBUTION UNDER ISLAMIC LAW


Islamic law has been accepted as part of Nigeria’s customary law only to the extent that

it relates to a person’s personal law. The rules of inheritance under Islamic law govern

and are applicable to persons who are Muslims and subject themselves to sharia law.

Where this is so, such a person must show a clear intention that Islamic law should apply

to his estate when he dies, otherwise, the native law and custom of his community will

apply. The court held in a decided case76 that intestate succession of a Yoruba Muslim is

governed by Yoruba customary law rather than Islamic law of inheritance is based on the

fact that the deceased’s property should be used primarily to support those persons who

75
     S. 42, 1999 Constitution FRN.
76
     Molade V. Ojumola (1942) 8 NSCC 236
                                                                                 Page | 46
he was obliged to first support in his life time and who has greatly suffered by his death.

For this reason, Islamic law does not recognise rules like primogeniture nor does it

discriminate against women unlike other customary law systems, women have been

granted their share in the deceased’s property and their rights are recognised in the Holy

Quran,77 it says ‘men shall have a share in what their parents and near relatives leave, and

women shall have a share in what their parents and near relative leaves, whether it been

little or much, it is legally theirs.’ The rules of distribution under Islamic law say that men

shall inherit twice as much as females. If there be more than two females, they shall have

two-third of the inheritance, but if there be only one, she shall inherit the half. Parents

shall inherit a sixth each if the deceased has a child, but if he has no children and his

parents be his heirs, then his mother shall have a third. If he has brothers and sisters, his

mother shall have a sixth after the payment of any bequest he may have bequeathed or

of debt. You know not whether your parents or children are more beneficial to you. But

this is the law of Allah. And you shall inherit the half of what your wife leaves if they die

childless, but if they leave children, a quarter of what they leave shall be yours, after the

payment of any bequest they may bequeath or debt. Your wife shall inherit one-quarter

of what you have if you die childless. But if you have children, they shall inherit one-eight,

after the payment of any bequest you may have bequeathed or of debt. If a man or a

woman leaves neither children nor parents and have a brother or a sister, they shall each

inherit one-sixth. But if there be more, they shall equally share the third of the estate,

after the payment of any bequest that may have been bequeathed or debt without

prejudice to the right of the heirs.78



77
     Chapter 4 verse 7
78
     The Holy Quran Chapter 4 verses 11 7 12, Ch. 4 V. 176
                                                                                      Page | 47
Islamic law also recognises the use of Wills, called wasiya. The power of the deceased to

dispose of his property through a Will is allowed but this is restricted to only one-third of

his property left after funeral expenses, payments of debts and other cost have been

deducted from his estate i.e. the net estate. A Will from the Islamic point of view is a

divine institution since its exercise is regulated by the Quran. It offers to the testator the

means of correcting to a certain extent the law of succession, and of enabling some of

those relatives who are excluded from inheritance to obtain a share in his property, and

of recognising the services rendered to him by a stranger, or finally, the Islamic

injunctions provide that the power to make Will should not be exercised to the injury of

the lawful heirs.




                                                                                     Page | 48
                                       CHAPTER 5


5.0    CONCLUSION/ OBSERVATION


When we talk about the administration of estate in Nigeria, we cannot do so without

talking about the Will. Making a will wherein one’s family is well taken care of, it offers

the greatest recipe to the oppressive tendencies of rapacious relatives and humiliating

experiences of potential widows and orphans in our society. Yet when a man or woman

makes a Will he or she can speak silently but authoritatively from the grave as regards

who gets what from the estate left behind. Lest one is misunderstood, a well-balanced

Will reckons with the interest of everyone fairly and equitably and within the limit of

available resources. Such a Will caters for both the nuclear and the extended family but

with special preference for the former.


On a sober note, considering the certainty of death, there is no need to pretend that we

are here to stay. The point is, if we destined to answer the call someday, sometime and

when we least expect, it underscores the need to act fast and settle this matter without

delay. Whatever it is that we can do to safeguard the future and destiny of members of

our families, while we are still alive, we should do. Therefore making a Will is a veritable

medium of coming to terms with the welfare of our families who will outlive us.


Finally, if you have made a Will today, you would have secured the future of your family.

You would minimize the tears of regret and the pain of separation. Surely, you will be a

happier person across the bridge. Don’t postpone it, decide quickly and give your family a

smile from the grave through a Will, only so will the estate you left behind would be

properly administered.


                                                                                   Page | 49
5.2    RECOMMENDATIONS


People should be enlightened the more about the administration of estate and

encouraged to make Wills. If a man makes a Will before his death, Assurance of disposal

of property according to one’s wishes after his death is guaranteed. It also minimizes, if

not eliminates, incidence of quarrel, controversy attendant upon distribution of the

property of the deceased. The testator will have the liberty to determine his solicitor,

executor or trustee as well as his children’s guardian(s), keys at bay imposters, busy-

bodies and indolent relatives who want to reap where they did not sow.


Communities should be encouraged to make appropriate by-laws that deal with

customary rules of estate administration. This is more urgent in cases where a person

dies without a Will and the customary rules are not well settled.


Finally, the probate registries of the various jurisdictions should be upgraded to cope

with current situations. This hopefully, should be carried out within the general scheme

of putting the judiciary in the proper position to cope with the modern dispensation.




                                                                                 Page | 50
                                       BIBLIOGRAPHY

Proudhon, P. J, Commentary 1989 in Ch. 2

Black’s Law Dictionary, 5th Ed. 1979

Barron’s Law Dictionary, 2nd Ed. 1984

Osborne’s Concise Law Dictionary, 7th Ed. By Roger Bird, Sweet & Maxwell

Joseph S. – An Introduction to Islamic Law, Oxford University Press, 1964

Itse S. – Nigerian Law of Succession; Malthouse Pres Ltd, Lagos 2006

Olayide A. – Cases and Texts on Equity Trusts and Administration of Estates; Mabrochi

International Co. Ltd, Lagos 2003.

Animashaun T.O.G and Oyeneyin A.B – Law of Succession Wills and probate in Nigeria –

MIJ Professionals Publishers ltd, Lagos 2002.




                                                                            Page | 51

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:10330
posted:11/11/2010
language:English
pages:51