November 30, 2022

What happens when a person dies without a will? Is there still a way of protecting his or her family’s interests in his/her assets and ensuring that family members are not cheated out or deprived of inheriting their late predecessor’s assets? First off, to commence my narration and place issues in perspective, kindly permit me to tell a short fictional story. Thank you. Permission accepted.

Chief Iwuezim OFR is a prominent titleholder in Nigeria and he is absolutely rich. In fact, simply saying that ‘Chief is rich’ is almost demeaning. The ‘length of his wealth’ is best described in these words of his native tongue- ‘Chief bu onya ego’ which is translated as – Chief is the trap of money. This native description does not encapsulate the entirety of Chief’s eminence; a board member of some prominent multinationals in the United States, owner of choice properties around the globe, business interests in many oil blocs and of course father to a community of children (both known and yet to be discovered) from his hamlet of ‘wives’, female companions and secretaries.

Rings a bell? Don’t worry, this is not a remix or retelling of the Chief DADDY movie. That is because this our dear Chief Iwuezim did not write a will before his untimely death last night[1]. Chief simply slept and has not blinked his eyelids as we speak. Now as you may have expected, the family is agog. As the news filters around town – Chief’s family, associates, and others are all gearing up.

Rita Iwuezim was the Chief’s only wife ‘within’ the house. The remaining ‘wives’ were actually the ceremonial sharers of her husband- the now late Chief Iwuezim. Rita knew these women were around though she was never had time to bother about catching them. Subconsciously, she had come to treat them as anyone would treat the secret service – you watch them in movies knowing that they surely exist somewhere but you never make it your business to look for a secret service agent as long as your life is going well. What shall Rita now do? Surely Chief’s younger brothers would be visiting with their individual sharing formulas for his properties. His previously unknown concubines will also want a portion of Chief’s wealth.

Thanks for reading my blockbuster story. I now resume my actual gist by mentioning two key points.

My first point is, you don’t want to be Chief Iwuezim by not making your will and I will explain why.

My second point is even where a will is not written or prepared, there is still a provision in the law that can safeguard the interests of your immediate family and loved ones. But for this safeguard to apply, there is one condition you must comply with (while alive). This condition will be addressed subsequently.

Before, going further into our discussion, I would love to explain some words you will meet as you read along;

When a person dies ‘testate’ – this means he made a will before he died

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When a person dies ‘intestate’ – this means he died without making a will

A testator – is a person (male or female) who makes a will

Estate (as used in law) – this means all of someone’s money or property.

With those terms out of the way, I continue with my first point earlier raised –

Make your will while alive (put differently – die testate)

I know that this point should sound obvious. The truth is that many persons downplay the need to make a will. In fact, to some people, the suggestion to make a will means one is wishing them ill will or untimely death. I will kindly advise that you discard the thought if you are in either of these categories.

The truth is the advantages of making a will are so numerous that ‘not making a will’ is particularly risky. For the records, let me state very clearly that making a will is the most concrete way of protecting your assets and interests after death. This is because by making a will, you have done some ‘basic home-keeping’ and can dictate what should be carried out as your last wishes when you are no more. You also get to determine who should carry out your last wishes in the will.

In fact, to demonstrate the importance of making a will, I will borrow the words of the Supreme Court.  In Idehen v Idehen, the Court said a lot including this – ‘the Chief if not the only aim of making wills is to allow owners of property or rights to indicate how their affairs on their death could be arranged. This involves the person to whom their property could be given or those to succeed them otherwise. For instance… the testator can appoint as head of his family a person other than his eldest son, or extend the category of the beneficiaries beyond his nuclear family”

There are other advantages of making a will and we will address this in a fuller blog post.

Also, I must mention that there are still some restrictions on your ‘will-making superpower’. If I were to state that as a lawyer I would say- there are restrictions on your testamentary freedom. That really means, that in some cases, you might not be able to share all of your property using a will. For example, a person who is an adherent of the Islamic faith (in some states such as Kaduna, Oyo, Plateau, Jigawa, Kwara, and Bauchi States) cannot share his properties anyhow he desires but must comply with the tenets of Islamic law when making his will.

That said, in the unlikely event that you do not make a will after my brief TED talk above, I will go on to the second point I’ve already mentioned in passing. The point about the provision of the law that could still substantially safeguard the interest of your immediate family and loved ones where no will was made before death. For this provision of the law to apply, there is a fundamental condition that must be fulfilled which is – get married under the Marriage Act.

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Get Married ‘under the Marriage Act’

Getting married under the Marriage Act is really not rocket science. To marry under the Marriage Act, the intending couple is expected to comply with the conditions provided by the law and they will be issued a certificate of marriage. To safely illustrate it, what is usually referred to as ‘Court Marriage’ is really an instance of marriage under the Marriage Act.

At this point, permit me to drop a shocker or spoiler alert. Here we go – did you know that most church weddings are not marriages under the Marriage Act? This in effect means that the protection offered by the Law to married couples does not apply to most marriages conducted in churches these days. But why is that so you ask? For a church to properly conduct a marriage under the Marriage Act, it must be a ‘licensed place of worship’ and there should be compliance with other requirements stated by the law especially Sections 7 to 17 of the Marriage Act. In practice, this is not done by most churches.

You can confirm churches that are licensed to conduct marriages in your local government area by visiting this portal created by the Ministry of Interior. https://ecitibiz.interior.gov.ng/worship/Placeofworshipsearch

Let’s proceed from our exposition above. Our focus now is – How does getting married under the Marriage Act help where someone dies without making a will. 

Where a person dies without making a will, if he was married under the Marriage Act, by operation of law, the interest of his family (especially his nuclear family) would be substantially protected. This is because his estate will be distributed according to the Administration of Estates Law and not his custom. This law provides a priority list of persons who can apply for ‘letters of administration’.

Let me give a foundational explanation at this point before I go further. Remember we mentioned earlier that when making a will you have (as the testator or maker of the will) the opportunity to appoint persons to carry on your last wishes. These persons are referred to as personal representatives. When a person dies testate, his personal representatives can easily be identified because they will be mentioned in the will and then they can take relevant steps to take control and administer the testator’s estate. Where the person dies intestate, persons who consider themselves as personal representatives are to apply for ‘letters of administration’. Until these letters of administration are granted, the law is that the deceased’s estate is ‘vested in the Court’. This means that survivors and family members of a man or woman who died without a Will have no power over his or her estate until letters of administration have been granted by the Court[2]. These letters of administration give authority to the personal representatives to take over, control, and distribute the deceased’s estate.

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Like I mentioned previously, the Administration of Estates law gives a priority list of persons who are entitled to apply for letters of administration where a person dies intestate (Section 49 of the Administration of Estates Law of Lagos State).

Here is the priority list;

  1. Surviving Spouse
  1. Children of the Deceased or the issues of the children of the deceased (who died before the deceased)
  1. Parents of the deceased
  1. Brothers and sisters of the deceased of full blood and their surviving children
  1. Brothers and Sisters of the deceased of half-blood and their surviving children that are sui juris
  1. Grandparents of the deceased
  1. Uncles and Aunties of whole blood or their surviving children
  1. Creditors of the intestate estate[3]

You may ask – what effect does this list really have?

Because of the priority list, it is not any person that can or will just wake up and want to run affairs of the money or properties of a deceased person by applying to Court to given letters of administration.

A real example can be seen in the case of Obusez v Obusez; a case that got to the Supreme Court.

The long and short of what we have explained so far is –

  1. Make a will to cater to the needs of your loved ones upon your death.
  2. Where you haven’t made a will yet, ensure you are married under the Marriage Act.

Thanks for going through this long read.

Oh and kindly forgive me, I will keep you up to date with the current state of commotion at the Late Chief Iwuezim’s residence soon. In the meanwhile –

Nkobowo Nkobowo BL (Reporting)

As Usual, we have taken care to ensure the information above is correct but it is only provided for general information purposes and does not amount to legal advice or soliciting. This information is not intended to substitute the services of a lawyer, if you need legal advice, we advise that you consult your lawyer for your specific needs and peculiar circumstances. For any further information, you could send us a mail via [email protected]

[1] In law, we would say, Chief died intestate.

[2] See the article by Ebun-Olu Adegboruwa SAN. It also makes for an interesting read on this issue- https://thenigerialawyer.com/administration-of-estates-law/.

[3] Sections 26 and 49(1) of the Administration of Estates Law of Lagos State have been the focus of this article.

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