The final part of the series on wills and succession.
Infant Children
What happens to infant children of an intestate (a person who has died without having made a will)? Who has the obligation to join with the surviving parent to take care of the children? This would be determined by the type of marriage contracted by the intestate.
Under Statute
If the intestate got married under the Act or in church, then statute would apply. This would be the Guardianship of Infants Acts 1886 and The Childs Rights Act.
Under the Guardianship of Infants Acts, both the father and the mother have power to appoint persons to act as guardians of an infant after their respective deaths, if the child is then an infant. An infant in this regard would be a child under the age of 18 years. No special words are necessary in making an appointment. Testamentary guardianship may be made to continue during infancy.
A guardian appointed by a deceased parent acts as a guardian jointly with the surviving parent, unless the surviving parent objects. If no guardian has been appointed by a deceased parent, or if such guardians are dead or refuse to act, the Court may, if it thinks fit, appoint a guardian to act jointly with the surviving parent.
Under Customary Law
If one thinks that the issue of guardianship of children is a bit complex, what then does one say about a situation which is governed by customary law?
This occurs when the intestate contracts marriage under native laws and customs. It is presumed under most customary laws in Nigeria that the child belongs to the father. If the father dies without making formal provision for the infant children then such children are left to the care and custody of the father’s relative. The mother of such children would have no say as to what happens to the children since they are not hers, but the father’s.
The infant children of a male intestate, whose estate is subject to customary law, would leave the welfare of his beloved children to the mercy of his relatives. However, certainly relatives would first attend to the welfare of their own children before thinking of the welfare of the children of the deceased.
Having heard what happens in both situations, speaking from the grave or deciding to keep quiet, the choice is now yours. Would you rather not want to speak from the grave?
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.