Backed by authorities, Davidson Iriekpen attempts to explain the common mistakes Nigerians make in properly understanding the difference between next-of-kin and heir
Funke Daowdu (not real name) had been living in delusion. For over eight years, she had watched her brother, Fusho Daowdu sign documents many times with her name as his next-of-kin. With the assets Mr. Daowdu, who was not in a hurry to get married, had accumulated, she was sure that he was very rich and that if anything untoward happened to him, she would be the beneficiary of his properties since it was just the two of them their parents had before their demise.
Even when, Mr. Daowdu later got married with two children, most of his documents still bore his sister’s (Funke) name as his next-of kin.
Then suddenly, one evening, after returning from work, he slumped. Before they could rush him to the hospital, he had passed on, throwing his entire family into mourning.
An autopsy conducted on him showed that he died of natural causes. In fact, results showed that he died of acute hypertension.
This occurs when one’s blood pressure increases to unhealthy levels. Apparently, he had not been paying attention to his health by undergoing regular check-ups.
Two months after Mr. Daowdu’s demise, two men from a reputable law firm suddenly showed up with a Will signed and registered. He didn’t will his assets to his sister.
Funke Daowdu is not the only Nigerian living with such delusion. With a snap of the fingers, a majority of Nigerians know whose names to write as their heir after their death. They don’t even have to think about it. They are always happy each time they find themselves in a situation requiring a full disclosure of their next-of-kin, like when supplying information to financial institutions, travelling documents and hospitals. As they readily make their choice, they feel that the persons they name as they next-of-kins would naturally benefit from their wealth or entitlement in the event of their demise. But there are questions: Do you think by merely picking someone as your next-of-kin you have made that person a beneficiary to your wealth or entitlement(s) in the event of your death? What is the implication of making someone your next-of-kin?
When you name a person next-of-kin, how much authority are you giving to that person, what should you expect of him, what is he empowered to do?, asked Chioma Unini in an article titled: ‘Clarifying The Misconception About next-of-kin in Nigeria.’
Unini, a lawyer, posited that when a person dies leaving behind a Will (testate), the matter of next-of-kin becomes superfluous. This is so because once a person makes a valid Will, he exercises his right to choose the beneficiaries of his wealth and the issue of locating his next-of-kin for the purpose of succession will not arise. So, the best that can be done in the circumstance is to share the wealth in line with the contents of the Will.
But what if the deceased left no Will (dies intestate)? Does it mean the person mentioned as next-of-kin automatically steps into the shoes of the deceased? Well, the answer is no. At best he can only be contacted to be notified of any happening or be asked to give some information about the deceased, but not for him to inherit or benefit from anything.
Generally, the question as to who to inherit one’s wealth after demise is determined by law, that is, customary law, or Islamic law or English Law or the Administration of Estates law (or equivalent legislation). And the law to be applicable in distributing the estate of the deceased shall be determined by the incidence of marriage of the deceased. It follows therefore that where a deceased contracted marriage under the Marriage Act, customary law is excluded, and succession to his wealth will be effected in accordance with either the English law or the Administration of Estates Law (or equivalent legislation), depending on the jurisdiction. See Obuzez V. Obuzez (2007) 10 NWLR (Pt. 1043) 430.
Under English Law and the administration of estate laws of various state, the surviving spouse together with the children of the deceased stand at the apex of the hierarchy of the beneficiaries of the wealth of a person who dies intestate (without a will). They inherit his estate to the exclusion of every other person. See the cases of Salubi V. Nwariaku (2003) 7 NWLR, (Pt. 819) at P. 452, Paras. D-E and Williams v. Ogundipe (2006) 11 NWLR, (Pt. 990) 157.
It is also settled that the surviving children take in equal shares, irrespective of their sex, and that the so called illegitimate children stand in equal pedestal with those born during the continuance of a statutory marriage, provided their paternity was acknowledged by their putative father. See section 42(2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which prohibits discrimination based on the circumstance of one’s birth. See also the following cases: DURU v.DURU 2016) LPELR-40444(CA), Igbozuruike Vs. Onuador (2015) LPELR – 25530 (CA), Ukeje V Ukeje (2014) LPELR-
The parents of the deceased take next after the surviving spouse and children, followed by brothers and sisters of the full blood, brothers and sisters of half-blood, grandparents, aunties and uncles of full blood relation to the parents of the deceased, etc. See Kekereogun & Ors v. Oshodi (1971) LPELR-1686(SC) subject however to contrary provisions under the administration of estate laws of various states.
Where customary law is applicable, the next-of-kin of an intestate are those who are under native law and custom entitled to inherit his estate. Since customary law in Nigeria is not uniform, it will suffice to say that a deceased person cannot, while alive confer inheritance rights on persons not so entitled under customary law by naming them his next-of-kin.
Therefore, under the Nigerian law of intestate succession, one cannot choose his heir under the pretext of next-of-kin; the law imposes heirs on him. For example it is the surviving spouse and children of an intestate who married under the Act that are his heirs. The intestate cannot therefore, by naming only one of them or any of his other blood relatives his next-of-kin, scheme them out of inheritance as the act of naming his next-of-kin does not amount to testamentary disposition.
According to Unini, next-of-kin is not in any way entitled to inherit one’s estate if anything happens to him or automatically qualified to inherit his wealth or superior to the beneficiaries named in a Will or exempted from the legal processes and laws of inheritance.
“Next-of-kin is merely the first contact point if anything happens to anybody. He is someone empowered to make decisions for the person in times of emergency or where the person is not readily available or unable to make the decisions himself/herself. He is someone empowered to provide necessary information about the person where needed such as confirming his identity. He is also someone positioned to make medical decisions such as providing consent for a medical procedure,” she explained
Unini posited that at best, what a next-of-kin can do after the demise of the deceased is to ensure that necessary steps are taken towards obtaining letter of administration from the probate, adding that the typical Nigerian’s conception of the term, ‘next-of-kin’ is therefore erroneous.
Citing a Court of Appeal decision in JOSEPH V. FAJEMILEHIN O. O. & ANOR (2012) LPELR-9849(CA), she said further: “Let it be placed on record that the term “next-of-kin” can be used in three senses. Firstly, it can be used to simply refer to the nearest blood relative or secondly, the person who to be notified in case of any eventualities of life such as an accident, emergency or death. Secondly, he may be required to make medical decisions such as providing information or consent for a person who is incapacitated or thirdly, the term can be used to refer to an heir.
“The first and second senses are straightforward and would hardly be an issue. Therefore little or no harm would be done at all if they are not discussed here. The problem however is the third sense of the term. Under what circumstance can a next-of-kin be an heir and in what circumstance can he not be?.”
Corroborating Unini’s position, another lawyer, O. G Chukkol, said a next-of-kin can inherit assets only if he is named in a Will as a beneficiary or by his status he is entitled by law to inherit but not actually because he is named as the next-of-kin of the deceased in a bank or place of work.He went further to state that under the Nigerian law of intestate succession, one cannot choose his heir under the pretext of next-of-kin; the law imposes heirs on him.
In attempting further legal perspective based on two factors, Chukkol considered whether the deceased has a Will or without a Will. According to him, in law, when a person dies leaving behind a Will, he is said to have died testate, and in such a circumstance, issue of next-of-kin becomes useless. He added that the reason was that the wealth of the deceased will simply be shared in line with the contents of the Will.
He said: “Are you among those that think by giving a name to financial institutions (bank for example) as next-of-kin you have chosen that person to automatically inherit your wealth in the event of your demise? In other words, do you think by merely picking someone as your next-of-kin you have made that person as a beneficiary to your wealth or entitlement(s) in the event of your death?
“Under the Nigerian law of intestate succession, one cannot choose his heir under the pretext of next-of-kin; the law imposes heirs on him. For example it is the surviving spouse and children of an intestate who married under the Act that are his heirs. The intestate cannot therefore, by naming only one of them or any of his other blood relatives his next-of-kin, scheme them out of inheritance as the act of naming his next-of-kin does not amount to testamentary disposition.
“There is nothing special about next-of-kin as far as succession is concerned. Next-of-kin is merely the first contact point if anything happens to you. He is someone empowered to make decisions for you in times of emergency or where you are not readily available or unable to make the decisions yourself. He is someone empowered to provide necessary information about you where needed such as confirming your identity. He is also someone positioned to make medical decisions such as providing consent for a medical procedure. At best, what a next-of-kin can do after the demise of the deceased is perhaps to ensure that necessary steps are taken towards obtaining letter of administration from the probate. The typical Nigerian’s conception of the term, “next-of-kin” is therefore erroneous,” he said.