INTRODUCTION TO LAW OF SUCCESSION
Succession involves the transmission of ‘rights and obligations’ of a deceased person as regards his estate to his heirs and successors. By ‘rights and obligations’, we mean benefits and liabilities attached to the deceased’s estate (Lawal Osula v Lawal Osula).
It may be said that succession is determined by the marriage contracted by the deceased before his death. Where the deceased contracted only a customary marriage during his lifetime, his estate will be governed by his personal law (Obusez v Obusez; Re Alayo; Tapa v Kuka). However, it has been noted in Oluwu v Olowu that a person may change his personal law either by choice or by process of assimilation.
Another point to note is that Islamic law will apply where the parties regard themselves subject to it and act accordingly. Thus, where the couple had lived all their lives as devout muslims and had conducted themselves subject to Islamic law, customary law will not apply (Asiata v Gancello). But where it appears from the conduct of the parties that they thought themselves as bound only by customary law, Islamic law will not apply (Mariyama v Sadiku Ejo). Also, where a couple contract both customary and statutory marriages, their marriage becomes governed by the Act but the statutory marriage does not nullify the customary marriage, it only supplements it (Jadesimi v Okotie-Eboh). Where a man contracts a statutory marriage with a woman and goes ahead to contract a customary marriage with another woman, the position of the law before was that only the children of the statutory marriage could inherit from their father’s estate (Cole v Akinyele) since the Marriage Act renders such subsequent marriage as null and void. Today, by virtue of S. 42(2) 1999 Constitution, the children under a subsequent void marriage can now inherit from their father’s estate.
We must note the provision of S. 24 of the Land Use Act 1978. S. 24(a) provides that where land is the subject of inheritance, the lex situs will govern the administration of the land if what the deceased enjoyed over the land was a customary right of occupancy. S. 24(b) provides that the personal law of the deceased will apply where the deceased enjoyed a statutory right of occupancy over such land.
There are two main types of succession:
1. INTESTACY SUCCESSION
This refers to the position of the law for the inheritance of property from a person who dies without leaving a will. Intestate succession may be further divided into two; a. intestacy under customary marriage (personal law of the deceased) b. intestacy under statutory marriage (Administration of Estate Law). See Okon v A-G., Cross-River, Obusez v Obusez which are to the effect that where A and B contract both customary and statutory marriages, the latter should displace the former. This means that where a man having contracted both customary and statutory marriages with a woman after which he dies intestate, the Administration of Estate Law would govern the issue of succession.
The mode of distribution could be patrilineal or matrilineal depending on which customary law is being studied.
By virtue of S. 49 Administration of Estate Law, where a deceased who is subject to statutory law dies without having made a will, his wife is entitled to one-third (1/3) of his estate. This is a shift from the customary law position where women are not entitled to inherit from their husband’s estate and in most cases, they are regarded as chattels to be inherited (Suberu v Sumonu).
2. Testate succession:
Testacy refers to the state or condition of dying having made a will, which was valid at the time of the testator’s death.