ABSTRACT

Right from the beginning there has always been a transition from one generation to another generation and whatever assets or liabilities that were owned or used by one generation is usually passed or transferred to the succeeding generation.

The law of succession is all about the transfer or devolution of property on the death of the owner. It is the manner or form by which property devolves. Though there may not have been any law or statute enacted by a legislature for this purpose, yet each community have had their own beliefs and practices regulating same. Thus, it was held that it is the assent of the natives of a particular community to practices and customs in that community that makes such practices and customs valid. Customary law embodies customs as practiced by the people which they regard as binding on them. Customary succession therefore, is concerned with the way and manner recognized and accepted by the people in which properties are transferred locally according to the customs, traditions and practices of the people.

          This paper therefore is aimed at examining customary succession among the Ibo speaking peoples of Nigeria

CHAPTER ONE

INTRODUCTION TO SUCCESSION

1.1               Inheritance and succession, an overview

Inheritance is defined as “hereditary succession to a Property, title, office ,e.t.c. a continual right to an estate Invested in a person and his or her heirs”1.The meaning of succession is however defined as “the legal transmission of an estate, throne from one person to another, that to which a person succeed as heirs”, in other words Succession is the transmission of rights and obligations of a deceased person in respect of his estate2. From these definitions ,it can be said that in an ordinary sense that ,inheritance means the passage of a deceased possessions to his or her heirs, while succession is the transfer or passage of a deceased possessions to another person, not necessarily his or her heirs. Conclusively it can be said that there is little or no difference in the two words, therefore the two words will be used interchangeably in the course of this work.

To inherit means to come into possession by transmission from past generations3 or to receive especially as a right. Inheritance in legal parlance therefore is the entry of a living person or living persons into possession of a dead person's property4. Over time inheritance has come to mean anything received from the estate of a person who has died, whether by the laws of descent5

1  The New Shorter Oxford English Dictionary

2   Idehen v idehen

3   Chambers 20th 4th Century Dictionary Edition 1981

4          Yakubu, M.G, Property Inheritance and Distribution of Estate under Customary Law, Lagos 1991 p.

136               

5         The body of law that determines who is entitled to the property from the estate under the rules of inheritance

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or as a beneficiary of a will or trust and it operates where private ownership of property exists as a basis of social and economic enhancement.

In another way, looking at inheritance and succession sociologically, it may go beyond mere transference of property but may also mean transference of statuses and positions. This view was aptly stated by Llyod P.C6. quotiong E.A Hoebel as follows

“A social anthropological approach to property as a social institution lead us to the position where

we look upon inheritance not as entrance of living persons into the possession of dead person’s property or even as succession to all the rights of the deceased but rather as the transference of statuses from the dead to the living with respect to specific property objects”

The first part of the law of inheritance guiding who is to receive the property left by a person who dies in the aspect of the rules governing testate and intestate succession and inheritance. The other part of how the property is to be distributed is the aspect of rules governing the administration of estate, this is where inheritance or succession under the general law or statutory law are being discussed. Apart from the general law, it is common knowledge that customary law is part of our law in Nigeria and as such we have some rules governing inheritance under native law and customs as well.

Under the general or statutory law where a deceased left a valid will behind, there will be a testate succession to his or her property. However, where he left no will or the one he left behind was declared invalid he would be taken to have died intestate. A grant of probate7 must however

6  Studies in the laws of succession in Nigeria edited by DERRET J.A

7  Probate is the legal authority granted to an executor or executrix of a Will to administer the estate of the testator after the Will has been proved and certified by the Probate Court as the authentic Will of the testator. The judicial due process, which leads to the grant of probate, is called “proving the will”. A probate merely confirms the authority of an executor, it does not confer authority. The authority of the executor is derived from the Will.

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be obtained before the property left by a testator in a will can be distributed but where he died intestate, a letter of administration8 must be obtained. The two terms i.e. probate and administration are governed by statutory law whereas the real succession or inheritance is governed by inheritance law which may be statutory Law or customary Law.

1.2             succession in Nigeria

Succession in Nigeria is simply divided into two main categories,namely testate succession and intestate succession,Testate succession can simply be defined as the distribution of the estate of a deceased in accordance with his or her will. The laws governing testate succession and Area where they are applicable in Nigeria are as follows Wills Act 1837 and wills Amendment Act 1852 applicable In Northern part and some parts of East; Wills Act 1958 applicable in former West and Midwest. Etc.Under intestate succession, the rules to apply to an intestate’s estate and applicable laws in various parts of the country e.g. Administration of Estate law 1959.the forms of succession will be examined as follows.

1.3              Testate Succession

Testate succession occurs when a person dies and leaves a will. Their estate will be distributed as they bequest in the will however legal rights will still have to be satisfied Intestate Succession occurs when someone dies without a will and their estate is distributed by the laws of intestacy which are governed by the Succession Act 1964.The existence of the twin regimes of testate and intestate succession may reflect the wealth of a deceased person - those who have a lot to leave will generally prepare carefully for how it is to pass and to whom (as in the case of

8  Letter of Administration is the legal authority granted by the Probate Court to a person called the administrator or administratrix to administer the estate or property of a person who died intestate.

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Williamson v Williamson while those with not very much will allow it to pass to their partners and children in general with no actual preference.

Testate can simply be defined as the distribution of the estate of a deceased in accordance with his or her will. The laws governing testate succession and Area where they are applicable in Nigeria are as follows Wills Act 1837 and wills Amendment Act 18529 applicable in Northern part and some parts of East; Wills Act 195810 applicable in former West and Midwest. Etc.

1.3.1    A Will.

A will is a testamentary disposition of a person’s personal property which is to be effective after his death. A will has also been described a remembrance of death.11 A will is ambulatory12, it is also revocable13. Both common Law and English statue recognize the right of an individual or owners of a property to dispose his property in a variety of ways or in accordance to the dictate of the individual that possessed such property but sometimes subject to limitations imposed by Law. This will let us understand the nature of will under the common Law, as well as under the statue. The formalities and limitations imposed by the statute. What are the essential elements set by the statue to constitute a valid will, and what effect will it has? All these are issues to be entertained subsequently.

i. Historical background of wills under common law.

Historically, wills were made in the Anglo-Saxon period, but as at then, they were irrevocable and, probably, not ambulatory. Thus, once the testator had by his “last words” made a

9  Both are statutes of general application

10 Cap 13 laws of western Nigeria 1959 1111 Barrow v Barrow 1937s S.A.S.R 246

12   It comes into operation after the death of the testator.

13   It can be completely revoked,altered and added to by the testator himself befor his death.

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will, he could not retract it and will be obliged to carry it out immediately, rather than retaining the property until death. He might, however make a so-called ‘post-obit gifts’, or an immediate gift of personality but with the retention of the use of the chattels until death. Wills of land were not usually possible at all, in any case, it was considered proper for land to devolve in accordance with the customary rules of inheritance. Gradually, Wills in writing evolved, stating what the testator considered would be his last words when the time came; the church did not insist on any formalities, given that the potential for technical defects could only open the way to sinful intestacies .

After the Norman Conquest, the Anglo-Saxon forms of written Wills went into extinction, though the ‘last words’ remained. A hundred and a half later, however, a new form of written Will appeared, owing much to the rediscovery of Roman law at the beginning of the middle ages. The ecclesiastical courts favored testation rights in respect of both land and personality, and would recognize and enforce wills of either, but the common Law courts of the king did not accept devises of land; these devolved in accordance with a system which protected the rights of the feudal barons14 .

ii.                   Nature of will under statutes.

The common Law restriction on the disposition of property by Will was remolded by a series of statutes beginning in the 17th century. After 1725, a testator could freely dispose of the whole of other, personal estate notwithstanding any customs for the contrary. Back in those days, there was no formality for the constitution of a valid Will. Consequently, the form varied from nun

14 Ibid.

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