INHERITANCE TUSSLE: IS MARRIAGE NOT THE BIG ROLE PLAYER? (PT.1)

 Inheritance Tussle: Is Marriage, not the big role player? (Pt.1)

                                   “A good man leaves inheritance to his children’s children”

                                                             Proverbs 13:22(a)

Hello Nigeria, few weeks ago on this platform, we had a discourse on Will, it was an extensive discussion and conversations are still on going. Please visit the blog to join in the conversation and don’t forget to leave your comment(s) on the blog. 

 In our previous discussion on Wills, I bet, we did not tell you that a person, who dies having made a valid will, is said to have died testate. The implication of testacy is that the Estate i.e properties will be shared and/or distributed in the manner stated in the Will. You know this, already!

Let’s remember that a lawyer has the requisite training to prepare a Will, more importantly the required confidentiality involved in the process of making a Will is one of the hall mark of the legal profession. Reach out to your lawyer for quality consults!

So you know what the term testate means; did you know that the opposite of testate is intestate? Now a person who dies without making a Will is said to have died intestate.

What happens where a person dies intestate? This question, amongst others will be answered shortly. Stay with us!

Apart from the question identified above, am sure another question agitating our mind right now is

;

What happens to the Estate and/or properties of a person who died intestate? 

The loose answer to this question is this; the kind of marriage contracted by the deceased person in his lifetime will determine what happens to such an Estate.

What do I mean by kind of marriage?

Is it marriage under the statute or under Native Law and Custom? Permit me to break it down further with the use of colloquial language. Is it “Court Wedding” and/or “Church Wedding” or “Traditional Marriage” significantly marked with the payment of dowry?

It is apparent there are 2 kinds of marriage, the one celebrated under the Statute and the one celebrated under Native Law and Custom. The kind of marriage celebrated determines the mode and manner of distribution of the deceased’s Estate where there is no valid Will.

Where a man in his lifetime contracted a marriage under Native Law and Custom (significantly marked by the payment of bride price) and  did not make a Will or a valid Will; His Estate will be governed by the Customary Law applicable to him.

What is the Applicable Customary Law? 

The Applicable Customary Law depends on the State of the Federation.

 In view of the multi ethnicity of this Country, this discourse will focus on 3 Customs which are the Yoruba, Ibo and Benin. For a rich discourse the position of Islamic Law will also be considered for the benefit of persons subject to Islamic Law.

What are the elements that must be in existence before the Application of Customary Law?

it must be shown that:

1) The deceased was subject to customary law

2) The deceased did not contract a valid marriage under the marriage Act during his lifetime.

What is the position under the Yoruba Customary Law?

In YORUBA land, the Estate/Property devolves on all the children both male & female to the exclusion of other blood relations, while the eldest son becomes the Head of family (remember the discussion on the status of the head of family, please check the blog). 

Where there is no son, the eldest female becomes the head of family.

Since the Estate of the deceased devolves on all the children:

How do the children then share and/or distribute the Estate/Properties?

There are basically 2 (two) modes of sharing properties; these modes are the Ori ojori ( per capita) and idi Igi ( per stripes) respectively. These 2 (two) modes, of sharing properties have been repeatedly held by the Nigerian Court not to be repugnant to natural justice, equity and good conscience. 

However, it is the head of family that has the power to elect which mode of distribution to adopt. Where the decided mode is not agreeable to the members of the family, the alternative is to access the court.

The above notwithstanding, case law has shown us that the Court generally favors ori ojori over idi-igi. Please remember, that it is the facts of the case that donates the issue for determination, having said this, the Court will not come to a decision of the appropriate sharing formula to adopt without considering the facts of the case.

What is  ori ojori?

It is a modern method that favors equal proportion. It literally means per capita. As usual, let’s use an example to drive home the point being made herein; Mr. Goodwill a Yoruba man who contracted customary marriage died intestate leaving behind 8 (Eight) children and a building of 10 (ten) flats, applying the ori ojori formula,  a flat will be given to each child  while the extra 2 flats will be let out and the rent collected in respect of those 2 (two) flats will be shared in equal proportion.

What is Idi-Igi?

 It is the opposite of ori ojori and literally means per stripes. This method of distribution is more favorable in a polygamist setting, each stripe/ igi represent each wife/and or/ mother. The properties are distributed according to the number of wives and/or mother.

What is the fate of the Widow?

You will agree with me that we have not said anything about the widow(s). Generally speaking, and with direct emphasis on the Yoruba Customary Law, a widow(s) cannot inherit the Estate, but can benefit from the Estate in the prescribed manner dictated by law.

Next Week on the Family-Law-Series, we will continue with this feature. Kindly remember that our aim at the Online Law Clinic is to add value using the Instrument of Law.

Please stay with us!

Thank You.

Oluwatosin Ajose Popoola Esq.,

Team Lead: Online Law Clinic.

For Consultations and/or enquiries, please reach out to the Online Law Clinic Team on: 09021229241 or onlinelawclinicteam@gmail.com

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