A Wife Can Inherit Late Husband’ Property By Kingsley Ezenwa Izimah

Introduction:

An heir is anyone who is entitled to inherit from a deceased
person who died without leaving a last Will or Testament or other
estate plan in care of a beneficiary. The status of an heir is very
important in not only settling administration and distribution of
an estate, but in determining who might be entitled to challenge or
contest a Will where the deceased left one.

What is Succession?

Succession is the process of inheriting a title, office,
property or real estate. The right of a person over his property,
whether real or personal, survives his death and devolves on his
personal representatives by operation of law, whether legally or
customarily. These personal representatives may either be executors
or administrators.

Executors are appointed where the deceased died “Testate” (i.e.
where the deceased left a Will behind). Administrators are
appointed where there is no Will through applying and obtaining
Letters of Administration at the Probate Registry of a State. The
law governing succession in Nigeria is generally divided into two
broad categories as follows:

1. Testate – Written Wills and Nuncupative Wills,
2. Intestate – Non Customary Intestate and Intestate succession
   under Customary laws.

Testate Succession:

A Testator is a person who has made a Will. Halsbury’s Laws of
England, 3^rd Edn. Vol. 3a, p. 842 defines a Will or
Testament as:

“The declaration in a prescribed manner of the intention of
the person making it with regards to matter which he wishes to take
effect upon or after his death”.

However, a Will cannot be of any effect until it is activated by
the death of the Testator. In other words, the benefits conferred
by a Will cannot take effect before the death of the Testator. In
Nigeria, a statutory Will cannot be valid unless it complies with
the rules of English common law as contained in the English Wills
Act, 1837 or Wills Law 1959. See the cases of Thomas v. De Souza
(1929) 9 NLR 81, Lawal v. Younan & Ors. (1961) 1 All NLR 245.

1. Written Wills:

Writing is not an intrinsic feature of a customary law. However,
where the written customary law Will was not drafted by a
Solicitor, it must be proved to be genuine. To prove its validity,
a party needs to show that the Testator was an adult, knew what he
was doing and its effect and had made the Will in the presence of
one or more adult witnesses. See the case of Shaw & Ors v. Kehinde
& Anor (1947) 18 NLR 129. E.I Nwogugu, op. cit. at p. 309, Margaret
C. Onokah op. cit 302-303.

1. Nuncupative Wills:

A nuncupative Will is an oral declaration by the owner of the
property of who is to have specified items of such property on his
death. See the case of Ayinke v. Ibidunni (1959) 4 NWLR F.S.C 280,
at pp. 281-282.

A nuncupative Will may be invalid if made in secret. Thus, a
nuncupative will must be voluntarily and orally by a person in
sound mind, in expectation of death in the presence of responsible
and disinterested persons. An executor or executors are appointed
by the deceased person to administer his estate upon his
demise.

In Nigeria, there is no uniformity of applicable laws relating
to Wills. The Nigerian legal system can best be described as a
combination of Nigerian legislation, English Law, Customary Law
(including Islamic Law) and judicial precedents.

Intestate Succession:

Where a person dies without having made a Will or if the Will is
invalid, then that part is dealt with as if there was an
intestacy.  The rules for division of property on intestate
are as follows:

If the deceased is survived by:

1. Spouse/civil partner but no children – spouse/civil partner
   gets entire estate.
2. Spouse/civil partner and children – spouse/civil partner
   gets two-thirds, one third is divided equally between the children
   (if a child has already died his/her children take a
   share),

• Parents, no spouse/civil partner or children – divided
  equally or entirely to one parent if only one survives,

1. Children, no spouse/civil partner, divided equally between
   children,
2. Brothers and sisters only – shared equally, the children of
   a deceased brother or sister takes the share,
3. Nieces and nephews only – divided equally between those
   surviving,

• Other relatives – divided equally between nearest equal
  relationship,
• No relatives – the state.

Intestate succession basically involves the applications of
three systems of laws, which are as follows:

1. The common law,
2. The Administration of Estate Laws of various States,
3. Customary Laws and traditions of the local people.

See the case of Zaiden v. Zaiden (1974) 4 UILR 283.

Concept of Real Estate Distribution:

The administration of an estate is generally the means of
distributing the assets (estate) of a deceased person among his
family, friends and objects of his regard. This can be done either
where the person died leaving behind a Will (testate) or without a
Will (intestate).

There are various means by which a deceased’s estate can be
administered, including under the Wills Act/Law, Customary Law and
Islamic Law. The laws that govern the practice and procedure for
the administration of estate are a combination of received English
Laws (under the English Common Law) and State Laws (enacted by each
State’s legislative assembly) applicable within each State.

In Nigeria, there are three (3) main forms of forced heirship or
limitation to the general right of a Testator to dispose of his
assets as he deems fit in the various Wills Law:

1. Under Customary Law: The limitation placed on
   the right to dispose assets is couched in various ways by the
   different Wills Laws. A good example is section 3 (1) of the Wills
   Law of Western Region, 1959 which states:

“Subject to any customary Law relating thereto, it shall be
unlawful for any person to devise, bequeath or dispose of by his
Will, executed in the manner hereinafter required, all real estate
which he shall be entitled to either at law or in equity”.

By the above provision, the freedom of the Testator to dispose
his property is fettered to accommodate customary laws and the
courts have upheld such customary restrictions in several cases.
See the case of Oke v. Oke (1974) 3 SC. 1, Idehen v. Idehen (1991)
6 NWLR (Pt. 198) 382. Thus, the Testator (under Bini customary
laws) cannot devise his igi-ogbe (property where the Testator lived
and died). There are also similar restrictions in the Wills Laws of
Lagos, Kaduna, Plateau, Kwara and Jigawa States.

1. Limitation under Islam: Islam also places a
   restriction on the quantum of the Testator’s estate that can be
   disposed by Will. The Testator cannot give preferential treatment
   to or disinherit any of the children. See the case of, Adesubukan
   v. Yinusa (1971) All NLR.
2. Reasonable provision for dependents: The Wills
   Laws of some States (Lagos, Oyo and Abia have provisions within
   their laws that permit named persons who were being maintained
   either wholly or partly by the deceased immediately before the
   death of the deceased to apply to court for reasonable provision to
   be made for them under the estate of the deceased, even contrary to
   the desires of the Testator as expressed in the Will.

These limitations to the Testator’s rights infringe on certain
rights guaranteed by the Constitution of the Federal Republic of
Nigeria, which recognizes the right of the individual to acquire
and own property in any part of the country (with corresponding and
integral rights to alienate or otherwise dispose of such property).
The limitation equally questions freedom of expression that a
Testator exercises is making a Will.

1. Marital Property: Property acquired by either
   spouse during the course of a marriage is considered marital
   property. Under customary law, only men have the right to own land.
   Sharia law does not allow women access to real property. Under
   customary law, a widow cannot inherit marital property. However, a
   couple married under the Marriage Act, can own property in their
   individual names or jointly. See the case of Chinweze v. Mazi
   (1989) 1 SC (Pt. 11) 33 at 46.

However, property inheritance by females under the Nigerian
Administration of Estate Laws, especially when it comes to a wife
is practically seen as a “taboo”. In most customs and traditions,
females and most especially wives are distributed as part of a
deceased person’s asset. Not until recently, did the court condemn
denial of female inheritance to property and give credence to a
female child’s right of inheritance of a deceased father’s
property.

In Ukeje v. Ukeje (2014) 11 NWLR (Pt. 1418) 384 on the
constitutionality of Igbo Customary Law, the Supreme Court has
voided the Igbo law and custom, which forbid a female from
inheriting her late father’s estate.

Can a wife inherit late husband’s property?

The law of succession involves the transmission of the rights
and obligations of the deceased person in respect of his estate to
his heirs and successors. 
It equally deals with the rules governing the
administration of the estate by the personal representatives of the
deceased person including state participation in respect of the
real estate situate within its territory and personal estate of the
deceased person subject to its jurisdiction. Succession may be
testate or intestate. Where a deceased person made a will, he is
said to have died testate.

Where a deceased person did not make a will, he is said to have
died intestate.

In
customary law, this distinction is of marginal importance because
under customary law, intestacy is the rule. The only consideration
of a testate succession under customary law is a nuncupative will,
also known as death bed declaration. Inheritance
issues are varied across the length and breadth of
Nigeria. The law of succession and inheritance is a reflection of
the legal pluralism inherent in Nigeria.

In general, in cases of inheritance of property of a person who
dies intestate in Nigeria, the personal customary law of the
deceased, that is customary law to which the deceased was subject
governs the distribution of his estate. The system of customary
inheritance varies from one ethnic group to the other. The class of
people who should benefit from intestate succession and the share
of such beneficiary are not free from problems.

It is often stated that most married men die before their wife
(wives) and that apparently leaves the estate of the man in care of
the wife and basically his offspring, before the incursion of
extended family and customary inheritance upon his demise. However,
most customs do not allow a wife to inherit the property of the
late husband. But, in the recent case of Anekwe & Anor v. Nweke
(2014) LPELR-SC.129/2013, a surviving spouse is invariably the
first in line to inherit if the decedent was married and she shares
the estate with his living children. In Anekwe & Anor v. Nweke
(2014) LPELR-SC.129/2013, the Supreme Court held:

“…I hasten to add at this point that the custom and
practices of Awka people upon which the appellants have relied for
their counter claim is hereby out rightly condemned in very strong
terms. In other words, a custom of this nature in the 21st century
societal setting will only tend to depict the absence of the
realities of human civilization. It is punitive, uncivilized and
only intended to protect the selfish perpetration of male dominance
which is aimed at suppressing the right of the womenfolk in the
given society. One would expect that the days of such obvious
differential discrimination are over. Any culture that disinherits
a daughter from her father’s estate or wife from her husband’s
property by reason of God instituted gender differential should be
punitively and decisively dealt with. The punishment should serve
as a deterrent measure and ought to be meted out against the
perpetrators of the culture and custom. For a widow of a man to be
thrown out of her matrimonial home, where she had lived all her
life with her late husband and children, by her late husband’s
brothers on the ground that she had no male child, is indeed very
barbaric, worrying and flesh skinning. It is indeed much more
disturbing especially where the counsel representing such
perpetrating clients, though learned, appear comfortable in
identifying, endorsing and also approving of such a demeaning
custom. In a similar circumstance as the case under consideration,
this court in Nzekwu V. Nzekwu (1989) 3 SCNJ page 167 held amongst
others and ruled “that the plaintiff had the right of possession of
her late husband’s property and no member of her husband’s family
has the right to dispose of it or otherwise whilst one is still
alive… My noble Lords, the custom pleaded herein, and is a similar
custom in some communities wherein a widow is reduced to chattel
and part of the husband’s estate, constitutes, in my humble view,
the height of man’s inhumanity to woman, his own mother, the mother
of nations, the hand that rocks the cradle. The respondent is not
responsible for having only female children. The craze for male
children for which a woman could be denied her rights to her
deceased husband or father’s property is not justified by practical
realities of today’s world. Children, male or female, are gifts
from the Creator for which the parents should be grateful. The
custom of Awka people of Anambra State pleaded and relied on by the
appellant is barbaric and takes the Awka community to the era of
cave man. It is repugnant to natural justice, equity and good
conscience and sought to be abolished…per OGUNBIYI, J.S.C. (Pp.
36-37, paras. A-B)”.

Conclusion:

A wife has a right to inherit property from their deceased
fathers and husbands and from any other person who devises property
to them under their will. This right is guaranteed by section 43 of
the Constitution which provides that every citizen of Nigeria shall
have the right to acquire and own immovable property anywhere in
Nigeria, while Section 42 of the Constitution prohibits
discrimination on the basis of sex.

The courts have consistently protected the property rights of
women and condemned customs and practices which tend to perpetuate
discrimination against women. The Court of Appeal condemned the
customary practice which discriminates against women as repugnant
to natural justice, equity and good conscience in the locus
classicus case of Augustine Nwafor Mojekwu v. Caroline Mgbafor
Mojekwu (1997) 7 NWLR 288, under which the Olu-Ekpe custom of
Anambra State, provides that only male children can inherit their
father’s property. When a man dies leaving no male child behind,
his brother inherits his property and if this brother dies, his own
male child inherits the property. The court stated as follows in
Mojekwu v. Mojekwu (supra) as follows:

“I will have no hesitation in declaring such customary law
which discriminates against female children in terms of inheritance
to be repugnant to natural justice, equity and good conscience… I
have no difficulty in holding that the native law and custom of
Umuanaga Awka which discriminates against female children of the
same parent and favours the male child who inherits all the estate
of their father to the exclusion of his female siblings to be
repugnant to natural justice, equity and good conscience”.

Also, a woman who has no male child can still inherit her late
husband’s property; indeed a woman without children can still
inherit from her deceased husband. Female children can also inherit
from their late father, and they cannot be discriminated against on
the basis of sex. Thus, a custom which forbids a woman from dealing
in land or to own movable and immovable properties in Nigeria will
be declared invalid by the courts.

When a woman is deprived of the right to acquire property by
inheritance by reason only of her being a woman, that amounts to
discrimination and the law would not permit it. Thus, in the case
of Motoh V. Motoh (2010) LPELR-8643 (CA), the courts have held that
female children can also inherit from their late father and they
cannot be discriminated against on the basis of sex.

So much so, in the case of Anekwe & Anor v. Nweke (2014)
LPELR-SC.129/2013, have held that a wife can inherit the property
of the late husband and have held in favour of women in property
inheritance while condemning the issue of discrimination against
women, when per Nikki Tobi, held as follows:

“Day after day, month after month and year after year, we
hear of and read about customs, which discriminate against the
womenfolk in this country. They are regarded as inferior to the
menfolk. Why should it be so? All human beings, male and female,
are born into a free world and are expected to participate freely,
without any inhibition on grounds of sex; and that is
constitutional. Any form of societal discrimination on grounds of
sex, apart from being unconstitutional, is antithesis to a society
built on the tenets of democracy, which we have freely chosen as a
people….On my part, I have no difficulty in holding that ‘Oli-ekpe’
custom of Nnewi, is repugnant to natural justice, equity and good
conscience…”

Accordingly, section 42 of the 1999 Constitution of the Federal
Republic of Nigeria condemns discriminatory actions of any kind
fellow citizens, especially women. Section 42 provides as
follows:

“42 –  (1) A citizen of Nigeria of a particular
community, ethnic group, place of origin, sex,
religion or political opinion shall not, by reason only that he is
such person:-

• Be subjected either expressly by, or in the practical
  application of, any law in force in Nigeria or any executive or
  administrative action of the government, to disabilities or
  restrictions to which citizens of Nigeria of other communities,
  ethnic groups, places of origin, sex, religion or political
  opinions are not made subject; or
• Be accorded either expressly by, or in the practical
  application of, any law in force in Nigeria or any such executive
  or administrative action, any privilege or advantage that is not
  accorded to citizens of Nigeria of other communities, ethnic
  groups, place of origin, sex, religion or political
  opinions”.

The courts have seriously frowned at disinheriting a woman from
the deceased husband’s estate upon his demise as a result of native
laws and customs under property inheritance. It has been held to
flagrantly violate the provisions of section 42 of the 1999
Constitution of the Federal Republic of Nigeria and repugnant to
natural justice and good conscience.

For further information, do not hesitate to contact the
author on: 0805-101-9362, 0806-809-5282 or send an email at:
kingsley.izimah@gmail.com^[1].
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