Intestacy, Customary Law Of Inheritance And The Status Of Women


When a person dies without leaving a will, such a person by law is deemed to have died intestate. Thus, Intestate succession is the method of property distribution when a person dies intestate or without a valid will. In Nigeria, where a person who died intestate was not subject to customary law and contracted a valid marriage under the Marriages Act during his lifetime, the intestacy rules will be applied to administer and distribute his property to the heirs or beneficiaries. (S49 (1) Administration if Estates Law if Lagos State, cap 3, Law if Lagos State 1994)

Every state in Nigeria have their respective Administration of Estate Laws and these laws govern the distribution of the estate of an intestate deceased. By its effect, upon contracting a statutorily valid marriage under the Marriage Act, a deceased estate is not governed by the intestacy rules of customary Laws (S49 (1) Administration if Estates Law of Lagos State, cap 3, Laws of Lagos State 1994)

Similarly, an intestate deceased who never contracted a statutory marriage under the Act shall have his estate distributed in accordance to the personal law applicable to him before death. Thus, the customary laws on distribution of a deceased’s property are protected to a certain extent and would not be displaced where the deceased was subject to customary law and where customary laws governs succession of a property. (Okiokwi V. Okiokwi (2014) 17 NWLR (Pt. 1435) 18)

Formerly, under the Yoruba customary law, the elder brother of the deceased inherits the entire estate to the exclusion the wife and his children. However, due to judicial efforts, the practice has been stated to be repugnant to natural justice, equity and good conscience. (Adeseye v Taiwi [1957] 1 FSC).

The Yoruba customary law is one with variances across the various dialect, however, they share some levelled principles in common. For instance, in the Yoruba customary law of succession, a wife of the deceased is entitled to live as of right in the home (family house) which she and her husband had resided before his demise.
Upon demise of a wife, all her properties devolve to her husband except shares in her maiden family’s property, and where the husband is deceased her children takes the properties. She (the wife) is not entitled to inherit her deceased husband (Akiooubi v. Akiooubi (1997), 2 NWLR (Pt. 486) 144) however. Her children are the beneficiaries of the estate regardless of their sex. (Salami V. Salami (1971) 1 All NLR 57)

In determining succession under the Yoruba customary law, the status of the properties comes into play. When a property is regarded as family property, it devolves in the eldest son of the deceased who assumes the shoes of his father as the family head (Dawodu) and manages it in trust for his younger siblings. (Lewis V. Baokole (1908), 2 NWLR 66) The next in line to the eldest son is the eldest daughter whom by law is regarded as number two in the hierarchy of headship in the family. Thus, in the absence of a male child, the eldest daughter assumes the title of Dawodu. (Otuo V. Otuo (2004) 14 NWLR (Pt. 893) 381) Similarly, no individual member of the family has the right to dispose of a family property without prior consent of all members of the family (12 Dawidu V. Daomile (1958) 3 FSC 46)

For self-acquired properties which are not tagged family property, two methods of intestate distribution are adopted under the Yoruba customary law; Idi-Igi and Ori-Ojori. In Idi-Igi, the deceased’s property is distributed per-stripes in a situation where the deceased has more than one wife. The distribution is done according to branches, each consisting of a wife and her children. The share of each branch is distributed among the children of that branch in equal shares. The wife gets nothing, although, she is entitled to a right of occupancy in the deceased’s house until she dies (life interest) or until she remarries.

In Ori-Ojori, the distribution of the deceased’s estate is done per capita. Here, there is a direct distribution of the property among the children of the deceased equally. In this method, all the children get equal shares. What makes this method equitable in comparison to the Idi-Igi is the equality of shares awarded to all children. In Idi-Igi, the share of each child depends on the number of children in each branch. In circumstances, where one wife has more children over the other wives, her branch suffers as the share given to them may not be sufficient in comparison to the wife with less children.

Modern commentators are of the view that this practice is indeed repugnant to natural justice and fairness when it comes that that wife of a Yoruba man who gets nothing from his estate and yet everything the woman has goes to him. That goes to the woman who has no child or who her children are all dead gets nothing from her husband. The Yoruba woman is advised to continue the fight against this practice until our courts changes it.

The Bini Customary Law of Succession

The Bini customary law encapsulates the patrilineal system upholding the primogeniture rule which in most cases causes the eldest son to inherit certain properties of the deceased exclusively while other children of the deceased are entitled to the distribution of the remaining estate. Under this system, it is a well-established principle of customary law that the deceased eldest son is entitled to inherit the house were the deceased lived and died. This house amongst the Bini people is referred to as the “Igiogbe” (Ideheo v. Ideheo [1991] 6 NWLR (Pt.198) 382)

Customarily, before a residence of the deceased would be deemed “Igiogbe”, it must be located in within the territory of the Benin kingdom.  (Eghareba v Oruioghe (2001) 11 NWLR (Pt. 724) 318) The eldest son upon death of the intestate father assumes the title of the head of the family and caters for the younger siblings, his father’s wives and becomes the manager of the late father’s estate on behalf of the entire family.

Similarly, widows are not allowed to inherit their late husbands. This is because, they automatically become part of the inheritance of the eldest son and it is his duty to provide and cater for them and also because the Bini cultural heritage does not allow a woman lead the ancestral worship. Furthermore, upon death of the deceased and by practice, the Okaegbe (head of the extended family) takes an inventory of all the properties under the name of the deceased and upon conclusion of burial rights distributes the deceased estates to all the children.

The eldest son is guaranteed of the Igiogbe while his siblings get to other children using the Urho (Per Stripe distribution) method of distribution in the order of seniority i.e. according to the number of wives and male children taking utmost importance in each of the Urho.

The eldest son is also entitled to a share of the remaining properties. All the other properties are similarly distributed among all the children starting with him. It may happen that the most senior of the deceased’s children is a female. In such a case, while custom places all responsibility on the eldest son, and give him all the precedence, it is permissible, and expected, by mutual agreement between the family elders and the children that something substantially reasonable be given to the woman being the most senior of all the children.

An affluent woman in the Bini custom can never own an Igiogbe as she does not have the capacity to lead ancestral rituals. She is customarily allowed to own a house and other properties. Upon demise intestate, all her properties pass to her children in their order of seniority and it matters not if all the children were born for different men.

Igbo Customary Law of Succession

Formerly, in the Igbo customary law of succession, all properties of an intestate deceased pass onto his eldest surviving son (Okpala) and where he has more than one wife, the eldest sons of the wives inherit jointly. The eldest son must manage and administer the estate on trust for the benefit of the entire family. The eldest son inherits the deceased staff (Ofo), other items of worship, his title (if any) and the Obi (the home where the deceased lived and died). Where there are no sons, the deceased brothers or uncles inherit the estate in trust and administers same for the benefit of the deceased family (Ngwi & Nwijie V. Ooyejaoa (1964) 1 All NLR 352)

In this instance, the wife or daughters inherit nothing. They are however under the care of the son who inherits all the properties (Neziaoya V. Okagbue (1963) All NLR 358)

This custom is described as the “Diokpa or Diokpara system”. However, after a period of judicial review, the courts declared that wives have possessory rights over the house of her deceased husband and that any practice to dispossess of same is repugnant to justice, equity and good conscience (Nzekwe V. Nzekwe (1989) 3 SCNJ 167) Similarly, the same court have gone further to declare that any custom which tries to disinherits daughters and wife by virtue of their gender is primitive, uncivilized and repugnant. The Supreme Court rested this issue in Ukeje V. Ukeje (2014) 11 NWLR (PT. 1418) 384, it is now a matter of right that widows live in their deceased husband rights and that daughters be entitled to a share in their father’s property under the Igbo customary law of succession.

Northern Customary Law of Succession

In some parts of the Northern Nigeria, indigenous native laws and customs, other than Islamic law are still in existence. Good examples are the Biron of Plateau, the Lugada of Adamawa and the Chibok of Borno. The modes of succession under these indigenous customs vary. They however share the progenitor rule as the basis for their first line of heirs. Sons are considered first in the distribution of a deceased estate and when no son exists, brothers and uncles takes the position. More also, Females are excluded from inheriting a deceased man’s property, although they inherit all their mother’s entire movable properties. Assets like lands and buildings are inherited by the males of the family.


Islamic Law of Succession

The rules of inheritance under Islamic law are applicable to persons who are Muslims and subject themselves to Islamic law. Where this is so, such a person must show a clear intention that Islamic law should apply to his estate when he dies; otherwise native laws and customs of his community shall prevail (Adesubikao V. Yiousa Rasaki (1971) 7 NSCC 236)

Islamic law guarantees the right of women inheritance. In fact, in the proviso contained therein in the scripture, women have their rights more guaranteed as inheritors than men and this were also espoused in the practice of Prophet Muhammad (PBUH). The Qur’an has statutorily provided for all heirs and the fractional shares in the estate of the deceased (Q4:7 and Q4:11-1230)

Thus, a deceased is not required to dispose any part thereof of his estate to any of heirs who ordinarily shall benefit from his estate. However, he may bequest a third of his estate to persons outside his ordinary heirs or even as charity. Wives, daughters, sisters, mothers and even in some exceptionally cases grandmothers are those captured to be beneficiaries of a deceased estate. Same goes to husbands, sons, grandsons, fathers, grandfathers and in some exceptional cases brothers.

Just as observed by the court in the plethora of cases above, some of these cultural practices are against public policy. The constitution of the Federal Republic of Nigeria have also protected women in Nigeria against these practices in section 42 of the constitution. We in Business Advisory Network (PAN) are advising Nigerian women and men who are gender friendly to continue fighting every culture that is gender discriminatory in Nigeria until they are all eliminated. A lady took up this fight in Onitsha in Mojekwu v Mojekwu (1997) 7 NWLR 283 which is still in the Supreme Court. Our women must rise up to challenge these inhuman practices in our cultures. The case of Ukeje v Ukeje is a lead for women to take up these fights at all fronts.

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