Marriage and intestacy law, By Ozioma Onyenweaku

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I got a call. It was not a number that I knew. The caller introduced himself. On hearing the name, I thought the call was to thank me on behalf of his late brother’s wife and children for successfully obtaining the Letters of Administration for the late brother’s estate. The appreciation call would have been quite apt considering the fact that I carried out the work on ‘credit’.

Rather, after introducing himself, the caller started his threat. He called me names and threatened to “show” me, to “deal with” me, and to “jail” me.

What was my offence? I attached a copy of a portion of the Administration of Estate Laws that prescribed the sharing pattern given different scenario, and highlighted the one that applied to the deceased who left a wife and children. This was what irked my caller. He got offended that I brought that to the notice of the wife.

He said the property would be shared according to their custom. I understand that by their custom, my caller is entitled to a share in his late brother’s property. By the provision of the Law I attached, he has no such entitlement. I then understood his pains. But come to think of it, I did not make the law! Ok, I get it now; my offence was in bringing it out to the attention of the beneficiaries. But my caller is quite wealthy, so why the fuss?

Well, I know that the kind of marriage the deceased and his wife had does not warrant application of tradition and custom in the sharing of the deceased’s estate. Their marriage was statutory marriage. So the man having died intestate, that is, without a Will, his property would be shared according to the applicable Administration of Estate Law after obtaining the Letters of Administration. The Administration of Estates Law of Lagos captured this in section 49(5):

“Where any person is subject to customary law contracts a marriage in accordance with the provisions of the Marriage Act and such person dies intestate after commencement of this law leaving a widow or husband or an issue of such marriage, any property of which the intestate might have disposed by Will shall be distributed in accordance with the provisions of this Law, any customary law to the contrary notwithstanding.”

The Estate Law provides the sharing formula:

Surviving husband or wife

If the intestate leaves a husband or wife without any issue (child), no parent, or brother or sister of the whole blood, then the surviving husband or wife takes the residuary estate absolutely. In other words, where a man dies without a child, has no parent or brother or sister of the same parent (or even their children), then his wife takes his residuary estate exclusively, without sharing same with anyone.

Surviving husband or wife and children:

If the intestate leaves issue (child), whether or not he leaves parent or brother or sister of the whole blood, the husband or wife will take the personal chattels (cars, clothing, books, shoes, jewelry, furniture, pictures, wines, and such other assets of personal use) absolutely; and in addition, the husband or wife will take one third of the residuary estate while the surviving children take two-thirds thereof equally.

The surviving spouse, together with the children of the deceased, inherits his property to the exclusion of every other person.

Surviving husband or wife with no issue

If the intestate leaves a surviving husband or wife, a parent, a brother or sister of the whole blood or their issue but leaves no issue of his own, then the surviving wife takes the personal chattels absolutely; and in addition, also takes two thirds of the residuary estate. Either one or both parents will take the remaining in equal shares absolutely whether or not the intestate leaves brother or sister of the whole blood.

Where the intestate leaves no parent, the brother or sister of the whole blood take the remaining one third in equal shares absolutely.

Intestate without surviving husband or wife

If the intestate leaves no husband or wife, the residuary estate will be held for the issue of the intestate, that is, the children.

Intestate without surviving spouse, children

If the intestate leaves no husband or wife, and on issues, but both parents, then the residuary estate will be held for the father and mother in equal shares absolutely; if the intestate leaves only one parent, then the residuary estate will be held for the surviving parent absolutely….

Take note that customary marriage, marriage under Islamic Law, and statutory marriage are the three marriages recognized as legal marriages in Nigeria.

However, in the event of intestacy and property sharing, statutory marriage has a great advantage.

Credit: Ozioma Onyenweaku