INTRODUCTION
In this part of the world, most people are not only concerned about what happens in their lifetime but are also concerned about what happens after their death. While some prepare for it by consulting a legal practitioner to prepare a valid will for them, some don’t and the reason why people don’t prepare a will differs from untimely and unexpected death to illiteracy about the advantages of preparing will.
Succession may be testate or intestate. A deceased person who made a will is said to have died testate and a deceased person who did not make a will is said to have died intestate.
Where a person who died intestate was not subject to customary law during his lifetime, such as when he married under the Act, the intestacy rules will be invoked to administer and distribute his property to the heirs or beneficiaries which means that the Laws of Administration of Estates of the state where the deceased was domiciled will apply.
There are various statutes governing testate succession such as Wills Act and Wills Laws of some states in Nigeria. This paper will, however, focus on intestate succession and the law guiding intestate succession in Oyo State will be the guide.
1.1. INTESTATE SUCCESSION
The law of succession basically deals with methods of inheriting the estate of a deceased person and the rules governing them differ. When a man dies, the devolution of his self-acquired properties depends on whether he made a will during his lifetime or not[1]. If he has made a will, the property devolves according to the will.[2] If he has no will, then, his properties devolve in accordance with the applicable customary law.[3]
There is no uniformity in inheritance laws in Nigeria. When a person subject to statutory law dies intestate, local enactments relating to the administration of estates apply. When a person subject to Islamic law dies intestate, Islamic law of succession applies. When a person subject to customary law dies intestate, native law applies.
Generally, the applicable principles for intestate succession are as follows:
- Immovable properties are governed by the law of the state where the properties are situated. For properties situated in Oyo State, Administration of Estates Law of Oyo State[4]
- Movable properties are governed by the law of state where the deceased was domiciled during his/her lifetime.
Irrespective of the location of the movable properties, if the deceased was domiciled in Oyo State during his/her lifetime, the Administration of Estates Law of Oyo State[5] applies.
- Where the deceased was subjected to Islamic law, evidenced in whether or not he/she married under the Islamic law, the Islamic law of succession applies.
- Where the deceased was subjected to customary law during his/her lifetime, for example, where the deceased married under customary law, customary law applies[6].
1.2. CUSTOMARY LAW OF SUCCESSION
The customary law applicable in Oyo State is the Yoruba customary law and under the Yoruba customary law, children are exclusive beneficiaries to the estate of a deceased person. The general rule of customary law where a landowner dies intestate is that his self-acquired property devolves on his children as family property[7].
It is important to note here that there is no gender-based discrimination as regards devolution of the deceased’s estate among the deceased’s children. The courts have held that both genders have equal rights to inherit their father’s estate.[8]
Also, by reason of the provision of section 42 (2) of the Constitution of the Federal Republic of Nigeria, all legal distinction between children born in a lawful wedlock and children born out of a lawful wedlock has been cancelled. Section 42 (2) of the Constitution says that,
‘No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstance of his birth.’
The constitutional provision specifically seeks to preclude discrimination against a person (child) on the basis or circumstances of his or her birth. The Supreme Court enforced the position stated above in the case of Salubi v. Nwriaka,[9] where it held that, the mere fact that the child was born out of a lawful wedlock will not be an impediment to him or her getting an equal share of his or her deceased parent’s properties with the children born in legitimate wedlock.[10] The court in Ayorinde v. Kuforiji[11] also affirms that succession of children to their father’s estate in intestacy under Yoruba native law and custom has been judicially noticed.
In Yoruba land and by extension, Oyo State, there are two settled methods for distribution of a deceased person’s estates. The two methods are Idi-Igi and Ori-Ojori. The former distributes the deceased person’s estate according to the number of wives while the latter distributes the deceased’s estate according to the number of children.
The court in Dawodu v. Danmole[12] held that the Idi-Igi method is not repugnant to natural justice, equity, and good conscience.
1.3. ISLAMIC LAW OF SUCCESSION
Oyo State is one of the states in southwestern part of Nigeria whose inhabitants are predominantly Muslims. As statistically shown by the 2013 Nigeria Demographic and Health Survey, most of the population in Oyo State are Muslims with 60.4% as against other religions in the state which take the remaining 39.6%.[13]
The Islamic Will practiced by Muslims is known as Wasiya and has no required formality except that it must be in respect of only one-third of the deceased estate. The remaining two-thirds of the estate must be distributed in accordance with the Islamic law of succession.[14]
It has been rightly observed that most Muslims in Nigeria die without any written or oral bequest hence, the administration of their estates is done according to the general principles of inheritance as prescribed under Islamic law.[15]
Where a Muslim dies, whoever is responsible for the administration and distribution of his or her estate shall be bound by the substantive and procedural laws of Islamic law as interpreted by the Maliki School of jurisprudence.[16] The application of Islamic law in substance, practice, and procedure in accordance with the interpretation of the Maliki School of thought has judicial support.[17]
There is no doubt that Islamic law of the Maliki school of jurisprudence is presumed to be the applicable law of a deceased Muslim in Nigeria and same will apply in the administration and distribution of his or her estate.[18]
In view of the pluralistic nature of the Nigerian legal system, Islamic law does not apply or operate without some sorts of interference, effect and influence of statutory law and customary law currently operational in the country. Strictly speaking, these other laws are not the primary laws for the administration of estates of a deceased Muslim in Nigeria, yet they do have some substantial relevance (directly or indirectly) for the effective application of the primary law i.e. Islamic law.[19]
1.4. INTESTATE SUCCESSION IN OYO STATE
In Oyo State, the Administration of Estate Laws of Oyo State abolished descent to heir, curtesy, dower, and escheat.
The law also prescribes rules for distribution of intestate succession as follows[20];
- If the deceased leaves a spouse but no child/children or parents or siblings, the residuary estate shall be held in trust for the surviving spouse absolutely.
- If the deceased leaves a spouse and child/children but has no parents or siblings, the surviving spouse shall take the personal effects[21] absolutely and a sum of money equivalent to one-third of the residuary estate.
However, subject to satisfying the quota of the surviving spouse, the remaining two-thirds of the deceased estate will be held in statutory trust for the child/children of the deceased.
- If the deceased leaves a spouse, child/children and parents, the surviving spouse shall take the personal effects absolutely and a sum of money equivalent to one-quarter of the estate of the deceased. This will be calculated after the cost and death duties have been deducted.
Subject to satisfying the above conditions, three-quarters of the deceased estate shall be on statutory trusts for the child/children of the deceased while one-quarter shall go to the parents during their lifetime, to be held on statutory trust for the child/children after the death of the deceased’s parents.
- If the deceased leaves a spouse, parents, and siblings but no child, the surviving spouse shall take personal effects absolutely and the sum of money equivalent to the value of two-thirds of the residuary estate minus the cost of death duties on the surviving spouse.
Upon payment of the sum and interest that the surviving spouse is entitled to, the remainder of the residuary estate shall be held in trust for the parent(s) absolutely.
Where the deceased leaves no parent, the remainder of the deceased estate shall be held in trust for the deceased siblings.
- If the deceased leaves no surviving spouse but leaves child/children, two-thirds of the deceased estate is to be held in trust for the child/children and one-third of the deceased estate goes to the parents of the deceased for life and devolves on the child/children after the death of the deceased’s parents, to be held in trust for the child/children.
CONCLUSION
The Administration of Estate Law of Oyo State had put in place measures to prevent maltreatment of surviving spouse, especially a wife, by the family of the deceased which is a common practice among in the state in time past. The law also put in place measures to cater for the children and dependents of a deceased person who died intestate and is not subjected to customary law or Islamic law during his or her lifetime.
However, to ensure that a person’s estate is shared according to his or her desire and wishes, it is best to consult a legal practitioner to make a valid will.
FOOTNOTES:
[1] Idehen v. Idehen (1991) 6 NWLR at 198.)
[2] Lawal Osula v. Lawal Osula (1995) 9 NWLR (Pt 419) p. 259
[3] Discriminatory property inheritance under customary law in Nigeria: https://www.icnl.org/resources/research/ijnl/discriminatory-property-inheritance-under-customary-law-in-nigeria-ngos-to-the-rescue#_ftn8
[4] Cap 1, The Laws of Oyo State of Nigeria,1997
[5] Ibid
[6] Section 6, 2nd Schedule, Administration of Estates Law, Oyo State
[7] Suberu v Suberu (1957) 2 FSC, Abeje v Ogundairo (1967) LLR)
[8] Amusan v Olawunmi (2002) 12 NWLR (pt 780) 30)
[9] Salubi v. Nwariaku (2003) 7 NWLR (pt 819) p. 426
[10] See also the Court of Appeal decision in Mogbodu V. Mogbodu (2015) 12 NWLR (pt 1474) p.1
[11] (2022) 12 NWLR (pt 1843) 43 SC
[12] (1958) 3 FSC 46
[13] https://nurhi.org/en/nurhi-oyo/
[14] T.O.G Animashaun and A.B. Oyeneyin, Law of Succession, Wills and Probate in Nigeria, pg 29
[15] Ismael Saka Ismael and Abdulmumin A. Oba, Legal Challenges Concerning Some Beneficiaries of Estate Governed by Islamic Law in Nigeria, 25(1) 2017.
[16] See Alkamawa v Bello (1998) 6 SCNJ p. 130.
[17] See for example Supreme Court Decision in Abdulsalam v. Jalawa (2002) SCNJ p. 358-403.
[18] Shiltu v. Shiltu (1998) Annual Report Sharia Court of Appeal, Kwara State p. 33, 98
[19] Administration of Estate Under Islamic Law: Practice and Procedure in Nigeria, by Prof. Bala Babaji of Department of Islamic Law, Faculty of Law, Ahmadu Bello University, Zaria. Being a Paper Presented at The Annual Refresher Course for Judges and Kadis with the Theme: Promoting Public Confidence in the Administration of Justice, organized by the National Judicial Institute (NJI), Abuja, Held at Andrews Otutu Obaseki Auditorium, NJI, From 21st – 25th March 2022)
[20] Second Schedule, Administration of Estates Law of Oyo State.
[21] Personal effects are a person’s personal property, usually items that can be carried such as keys or clothing.
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