The sixth part of the series on wills and succession.
WHAT NEXT IF YOU FAIL TO SPEAK FROM THE GRAVE
What happens to the estate of an intestate (a person who has died without having made a will) would be determined primarily by the nature of his or her marriage.
Marriage Under Customary Law
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 general principle of lineal descent along paternal or maternal lines. Paternal lines are lines of descent traced through the father, while the maternal lines are lines traced through the mother.
The customary law rules in Nigeria are different depending on the various ethnic groups. Under Yoruba customary law for example, the mode of distribution depends on whether the disposition is by a man or woman. Where a woman dies, her husband inherits all her properties, except her share of family property, which reverts to her maiden family i.e. her family before marriage. Where it is the man that dies, his children inherit. A woman is not allowed to inherit her husband’s property and where the deceased has no children, the estate devolves on his brothers and sister.
The importance of speaking from the grave cannot be over emphasised, because should a man fail to do this and die intestate, if he is subject to Yoruba customary law, his wife would be left with nothing.
The Benin Customary Law of inheritance adopts the principle of primogeniture – the state of being the firstborn child. After the death, the deceased is given his first burial and all the children take charge of the estate pending the second burial. The eldest surviving son of the deceased inherits the house where the deceased lived in his life time which is called “Igioogbe” after the second burial. Here also it is the children that inherit the estate of the deceased and the wife is also left with nothing. In a situation where the eldest son is still a minor, of course, the chaos and confusion that would follow can be better imaged. Therefore a man who is subject to Benin customary law should endeavour to speak from the grave, to enable him make proper provision for members of his family.
The rules of customary law on succession in Igbo land are not uniform. When a man dies, all of his property passes to his eldest son. The eldest son must manage and administer the estate on trust for the benefit of the whole family, his brothers especially. The eldest son also inherits his father’s personal staff, called “Ofo”, other items of worship, his title, if any, and the Obi or place where the father lived before his death. Where there are no children, the deceased’s brothers or uncles inherit, but only as trustees or custodians to administer the deceased’s estate, for the benefit of the deceased’s family. You would all agree with me that this is not usually the situation as the brothers or uncles usually take over the deceased’s property and instead disinherit his family.
In most parts of the East, a widow cannot inherit her husband’s estate when he dies. In fact, she is seen as a chattel or as a part of the deceased’s property to be inherited by his heir. In Idoma, for example, the brother of the deceased as next of kin inherits the deceased’s property including the wife and children.
In the North, indigenous laws and customs as well as Islamic laws of inheritance govern the distribution of the deceased’s estate. Under indigenous laws and customs, depending on the ethnic group and tribe, it is generally accepted that the first in line to the deceased’s property are his sons, then his brothers. Females are excluded from inheriting a deceased’s property although they inherit their mother’s moveable properties.
Under Islamic law, it is believed that the deceased’s property should be used primarily to support those persons whom he was obliged to support in his lifetime and who have suffered greatly by his death.
Mrs. Akinlawon SAN obtained her LLB from the University of Lagos in 1980. She attended Nigerian Law School and was called to the Nigerian Bar in 1981. She holds a Master’s Degree (LLM) and was elevated to the rank of a Senior Advocate of Nigeria (SAN) in August 2011.