- Introduction
When a person who was married with children dies intestate (without a will) then difficult questions arise. Who are the beneficiaries entitled to the deceased’s property? Should the estate be distributed according to Customary Law or received English Law. These questions sometimes cause the members of the family to engage in a bitter dispute which may result in litigation.
- Judicial authority: Case one .
2.1 One of such cases was Salubi v Nwariaku (2003). The deceased died intestate survived by his wife whom he married under the Marriage Act and left behind substantial property. There were two children born by said wife and two other children born out of wedlock. On the death of the deceased intestate letters of administration were granted to his wife and the first son but she declined to be an administrator. The eldest surviving child of the deceased, unhappy with the management of the estate by the first son, commenced legal proceedings to set aside the letters of administration. She also sought an order that the estate of the deceased be distributed to all the beneficiaries in accordance with the Administration of Estates Law which governs the estate of a deceased person who married under the Marriage Act. Section 49(5) of the Administration of Estate Law, states that, any property, which the deceased, who died intestate, might have disposed by a will shall be distributed in accordance with the provisions of that Law notwithstanding any customary law to the contrary.
2.2 The case of the first son was that the deceased being an Urhobo Chief and having died intestate, his property should be distributed in accordance with Urhobo customary law which entitled the eldest son to inherit the entire estate and distribute at his discretion. The trial court set aside the letters of administration and held that the estate should be administered in accordance with section 36(1) of the Marriage Act because the deceased had married under the Act and was no longer a person to whom customary law was applicable. Therefore, the applicable law was English law and not Customary Law. The trial court therefore held that the widow was entitled to one-third of the estate and the children to the remaining two-thirds. Both parties were unhappy with the judgment and on appeal the Court of Appeal held that the applicable law to the succession of the deceased’s estate was English Law as stated in section 36(1) of the Marriage Act. The Court of Appeal also acknowledged the right of the widow to one-third of the total value of the estate. The first son further appealed to the Supreme Court which held that the applicable law to the succession and distribution of the estate was the Administration of Estates Law and not the Marriage Act. However, both laws have similar provisions and apply the English law on the subject.
- Succession under the Marriage Act
Section 36(1) of the Marriage Act states that, where any person who is subject to customary law contracts a marriage in accordance with the provisions of this Act and such person dies intestate leaving a widow or husband or any children of the marriage, the real and personal property of such person which might have disposed by will, shall be distributed in accordance with the provisions of the Laws of England relating to succession of estates, notwithstanding any contrary customary law. The difference between the provisions of both laws is that, while section 36(1) of the Marriage Act incorporates by reference English law into our law of intestate succession, section 49(1) of the Administration of Estate Law directly and not by reference substantially incorporates the provisions of the English law on the subject into Nigerian law.
- Judicial authority: Case two .
4.1 Another of such cases is Obusez v Obusez (2007) which affirmed the earlier decision of the Supreme Court in Salubi v Nwariaku. In this case the deceased was married under the Marriage Act and died intestate leaving a wife and five children of the marriage. A conflict arose over the succession to his estate and the wife instituted legal proceedings against the deceased’s brothers who contended that the succession was subject to the Customary Law of Agbor in Edo State. She claimed a declaration that the widow and her five children were the only persons entitled to the estate of the deceased and therefore entitled to the grant of letters of administration.
4.2 The trial court held that under law of succession in Nigeria, where a person contracts a marriage under the Marriage Act, the lawful wife and her children were the only persons entitled to the estate of the deceased, and that as beneficiaries of the estate they were entitled to the grant of letters of administration. In effect, the applicable law was English law and not Customary Law. The brothers of the deceased then appealed to the Court of Appeal which affirmed the judgment of trial court. On further appeal the Supreme Court followed the decision in Salubi v Nwariaku and upheld the decision of the lower court. Onnoghen JSC said,
“It is not disputed that the deceased and the 1st respondent were married under the Marriage Act in 1972 but that prior to that marriage both parties were subject to customary law with the deceased being particularly subject to Agbor Customary Law. It follows, therefore, that by virtue of the said marriage and upon the death of the deceased intestate the provisions of the Administration of Estate Law of Lagos State becomes applicable particularly as the deceased and 1st respondent together with the children of the marriage resided in Lagos State at the time of the death of the deceased intestate.”
- No llegitimate children
One other important issue decided in the case of Salubi v Nwariaku (2003), was the intestate succession of children born out of wedlock. The Supreme Court held that such children were legal beneficiaries and therefore entitled to share in the estate of their father because the provisions of section 42(2) of the Constitution prohibits any form of discrimination by reason of the circumstances of birth.
Jide Bodede
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