In Nigeria, inheritance and succession planning are governed by the Wills Act and the deceased’s personal laws, customs and religion. Preparing for the inevitable is important, otherwise you risk the unintended consequences of: ineffective gifts, thereby depriving your preferred heirs of your estate or having your assets ending up with unintended beneficiaries. Sometimes even waste (siblings have been known to engage in protracted disputes over inheritance resulting in long drawn out court cases) or a total loss (e.g, in the case where a man who owned property in England and died intestate. By the time his family became aware of the property, they were unable to afford the inheritance tax and unfortunately had to forfeit the property).
With people living in one place but having the cultural beliefs of another; multiple families; assets in different jurisdictions and ever-changing tax and inheritance laws, we owe our families, partners, dependents etc. a legacy free from contention, stress and unnecessary expenses.
Your assets are anything you own either solely, jointly or in partnership including, property, cash and shares. It is important to compile a list of assets before deciding how to pass it on.
How you pass these on, depends on the type of ownership, location of asset, your religious, cultural beliefs and practices. The most common forms of disposal are wills, trusts, powers of attorney, outright gifts, etc. Nigerian law recognizes customary laws, practices and religious beliefs in the management and distribution of assets and estates.
Wills are legal documents executed by an adult (testator) of sound mind before witnesses, that clearly states what happens to your assets upon death. If you die without a will, you are said to have died intestate.
A will takes effect after death and those responsible for executing its provisions are known as executors, who should be persons trusted to follow your mandate honestly and responsibly. If you die intestate, the probate court will appoint administrators to the estate.
Changes can be made either by revoking a previous will or by codicil. Copies of the will and codicils must be kept in safe custody.
Your will must be clear, and the beneficiaries specifically stated. Provisions can be made for residual matters which may accrue after you pass. Conditions can be attached to bequests and provisions made for the care of minor children, elderly parents; financial support to charities you wish to support. A beneficiary cannot witness a will.
A trust is an agreement entered into between parties for the benefit of a third, a beneficiary. It can be effective even when you are alive; revocable (freedom to change the trustees, beneficiaries or the terms); or irrevocable. An executor in a will can become a trustee by virtue of the terms of the will.
A power of attorney can be used to give authority to a trusted person(s) for certain aspects of one’s life or assets e.g. in the event of incapacitation, it can state how the donor should be medically looked after, cheques signed, funeral arrangements etc.
Your next of kin is usually entitled to the benefits of the aspect for which they have been so indicated. Always consider your circumstances when designating a NOK and update this as the need arises.
Most Nigerian tribes and cultures operate under the principle of primogeniture – succession by the eldest male child in the absence of clear instructions in a will, trust, POA or gift. The deceased’s personal customary law will prevail, irrespective of where the property is situated or where he/she died. In Olowu vs. Olowu, a Yoruba man, naturalized as a Bini man, died intestate; his estate was distributed under Bini native law & custom.
The Supreme Court (Ukeje vs. Ukeje), held as unconstitutional any culture (in this case Ibo) which excludes women from inheriting from their husband or father. In this case, the deceased’s daughter instituted an action against her stepmother and half-brother seeking that she be included among the persons eligible to partake in the deceased’s estate. The effect of the decision in this case is that customary law can no longer be a basis for the exclusion of females from inheriting property.
The courts will generally accept oral (non-cupative) wills if the custom of the deceased allow this.
With the Yoruba, generally the eldest son inherits the property for himself and as a trustee on behalf of the family –wife/wives and children. Where division occurs, male children sometimes get more; or it is split into the different branches, with each wife/mother constituting a branch – Idi Igi; each child may get an equal share – Ori Ojori.
Under Islamic Law, the Quran ensures that primary (spouses, children and parents) and legitimate heirs are not denied their inheritance. Before any portion of the Estate is shared, the deceased’s debts must be settled.
A wife/wives is entitled to a quarter of the estate and males inherit twice as much as females. Parents inherit from a deceased child. If none of these exist, full siblings are next and thereafter half siblings. Non-Muslims, adopted or “illegitimate” children cannot inherit from a Muslim and any residue in the estate is shared amongst the heirs. Muslims may only dispose of a third of their assets by a will but can gift some or all of their assets in their lifetime.
A will is recommended once you attain the age of maturity and have any assets. There are self-help tools to assist in drafting and preparing wills, but it is advisable that if you have significant assets or an extended family, you seek the advice and assistance of a lawyer, financial and tax planning experts and professional trust companies.
- A longer version of this piece available on our website – www.alp.company
Rimi is Partner, Africa Law Practice (ALP) Corporate-Commercial and Private Client