TESTATE SUCCESSION AND ESTATE PLANNING

by ADEKUNLE TUYO Esq. on Sun 30 Sep 2012

TESTATE SUCCESSION AND ESTATE PLANNING*

And Sarah saw the son of Hagar the Egyptian, which she had born unto Abraham mocking.

Wherefore she said unto Abraham, Cast out this bondwoman and her son : for the son of this

bondwoman shall not be heir with my son, even with Isaac. Genesis Chap. 21 vs. 9 10

INTRODUCTION

Issues and problems arising from inheritance are rooted in antiquity. When a person dies, the
living succeed to his/her status and property. All societies have developed or evolved rules for
the transmission of property interests. Among the Yorubas for instance, the agnatic rules of
transmission among the Ekiti and the cognatic rules of transmission among the Ijebu are well
known. Oral customary law wills are generally recognized and given effect by the courts.

In some primitive societies e.g. the Comanche of North America, the destruction
of the property of the dead was customary. However, among the various ethnic
groups that populate Nigeria, the destruction of property is not common, as
mortals are expected to succeed to the status and property of the dead. The topic
thus becomes relevant within our social context.

You will perhaps wonder why we have chosen the phrase Estate Planning as against mere
will making. It is because estate planning is wider than mere will writing. In will writing or
making, the writer (the testator), merely makes provisions for the disposal of property over
which he/she has the power of disposal or appointment. Estate planning is however wider
than mere will making in the sense that it takes cognisance of the tax liabilities the estate of
the testator will attract and then puts in place those pre-emptive measures that will minimise
the burden of taxation and preserves the quantum of the estate for the benefit of the
beneficiaries. The essence of estate planning is tax avoidance not tax evasion. A key feature
of a well planned estate is that it is a financial plan and not a mere document of devise.

As a preamble, it is perhaps necessary at this juncture to draw attention to the fact that wills
and testamentary dispositions (which together may be termed the law of succession) fall
within the legislative competence of the states as they relate to matters that are neither on the
exclusive or current legislative lists and therefore come within the ambit of the residual
powers reserved for the states.[1] The corollary of this situation is that no single legislation
regulates succession in Nigeria. One must therefore resort to the various states for the
pertinent enactments. Where there is no local legislation, resort may, where permissible,
then be had to the Wills Act of 1837.[2]

It is however pertinent to note that in exercise of its powers to legislate on matters incidental
or supplementary to any matter mentioned on the Exclusive Legislative List the National
 Assembly may make laws that may have implications for the law of succession.[3] Thus
where the deceased is a soldier, airman, rating, seaman or apprentice belonging to a Nigerian
ship, resort must be had to the pertinent Federal enactments. The pertinent provisions will be
addressed later in this paper.

To facilitate the comprehension of the subject matter of this paper, we will at this juncture
define the key terms which are apposite for a proper consideration of the subject.

The Wills Law of Lagos State defines a will as follows :-

will includes a testament, a codicil and an appointment by will or by writing in the nature of
will in exercise of a power.[4]

The Wills Law of Western Nigeria[5] which is still applicable in some of the states carved out
of the old Western Region (Ogun, Edo and Delta States) defines will in exactly the same
words. As this definition is not particularly explicit or descriptive of what a will is, one
would therefore need to explore other sources for a more comprehensive definition. Blacks
Law Dictionary[6] defines the word will as follows :-

An instrument by which a person makes a disposition of his property to take effect after his
death, and which by its own nature is ambulatory and revocable during his lifetime. The legal
expression or declaration of a persons mind or wishes as to the disposition of his property, to be
performed or to take effect after his death.

A codicil is defined by the same dictionary in the following words :-

A supplement or an addition to a will; it may explain, modify, add to, subtract from, qualify,
alter, restrain or revoke provisions in existing will. Such does not purport to dispose of entire
estate or to contain the entire will of testator, nor does it ordinarily expressly or by implication
revoke in toto a prior will.

The aforesaid dictionary defines the word testament as follows

under the early English Law, a term that referred to the disposition of personal property by will
i.e. by last will and testament. The words and testament are no longer necessary since a will
now relates to both real and personal property.

It is also necessary to consider the meaning of the term Estate Planning. The aforesaid
dictionary defines the term as :-

That branch of the law which, in arranging a persons property and estate, takes into account the
laws of wills, taxes, insurance, property, and trusts, so as to gain maximum benefit of all laws
while carrying out the persons wishes for the disposition of his property upon his death.

It can be seen from the definition of estate planning that it is wider than mere will making.
Whereas a will simplicita is an instrument of devise, a well planned estate is a tax effective and
efficient financial plan. Put differently, estate planning involves the adoption of a multi-faceted
approach to will writing. It goes beyond the making of gifts and explores avenues for conserving
the quantum of the estate for the beneficiaries.

For clarity of exposition this paper will be divided into three main parts :-

q Testate Succession in Nigeria

q Estate Planning

q Probate Practice

TESTATE SUCCESSION

2.A Nuncupative Wills

Customary takes cognizance of disposition of property by will. Most wills under customary
law are oral. In Salamotu Ayinke & Anor v Ramotu Ibidunni [7] the Federal Supreme
Court took cognizance of the testimony of the expert witness in the case Chief Aminu
Kosoko that according to native law and custom, the deceased could make a declaration as
to the disposition of his properties on death, but that such declarations should be made in the
presence of witnesses of good standing and they should be about four in number.

Under the customary law of Ndiakunwanta/Arondizuogu in Imo State oral wills i.e. Ike
Ekpe, are recognized and given effect. A trustee under Ike Ekpe has the discretion to sell
part of the estate of the testator if the need arises that he could not discharge his obligations
under the will without doing so. However, there must be ample evidence that such need
arose.[8]

However, a question which necessarily arises is whether a native who has contracted a
marriage under the Marriage Act but who rather than making a will under the Wills Law
prefers to make a nuncupative will, could be said, upon his death, to have died intestate such
that the rules of intestacy under the Administration of Estates Law could apply to his estate?
An interesting issue directly related to this point, arose in the celebrated Ghanaian case of In
re: Anaman[9] where the learned Judge Francis Smith J in referring to the arguments of
learned counsel said :

Mr. Sarbah cleverly argued that the deceased and the widow being natives of the
colony, native law and custom must, in terms of Section 19 of Ordinance No. 4 of
1876, bind them, the Legislature having provided that such law and custom shall
be deemed applicable in cases relating to testamentary dispositions; that, as by
native law testamentary dispositions mean verbal disposition, writing not being
necessary by native law, a native who makes such verbal disposition cannot be
said to die intestate.[10]
 The court unfortunately rejected this argument. The High Courts in Nigeria are enjoined to
observe and enforce the observance of customary law which is applicable and is not
repugnant to natural justice, equity, and good conscience, nor incompatible with any law
for the time being in force. Nothing in the High Court law shall deprive any person of the
benefit of customary law.[11]

In general, customary law shall be deemed applicable in causes and matters where the
parties thereto are natives, and also in causes and matters between natives and non-natives
where it may appear to the court that substantial injustice would be done to either party by a
strict adherence to any rules of law which would otherwise be applicable. Furthermore, no
party shall be entitled to claim the benefit of any customary law if it appears that from the
nature of the transactions that such party agreed that his obligations in connection with such
transactions should be exclusively regulated otherwise than by customary law or that such
transactions are unknown to customary law.[12]

As indicated above, it is our respectful view that testamentary dispositions are not unknown
to customary law. It is known and practiced by the various ethnic nationalities that make up
Nigeria. This fact has been acknowledged in various decided cases.[13] It is a common
fact that most Nigerians who contract marriages under the Marriage Act continue to regulate
vast facets of their lives in accordance with the dictates of their cultural background.
Although we are yet to find a Nigerian case directly on this issue, we are inclined to adopt
the position that a person who contracts a marriage under the Marriage Act is not thereby
disentitled from making a customary law will. It is thus our view that where such a person
dies leaving behind a nuncupative will in strict compliance with his customary law, he could
not be said to have died intestate.

2.B. TESTATE SUCCESSION

This part of this paper will address testate succession from two main perspectives. First, we will
consider the laws that confer testamentary capacity and then we will consider the laws that
regulate testamentary disposition.

2. B. 1 The laws that confer testamentary capacity

Generally, testamentary capacity is governed by the conflict of law rules. Thus, the capacity to
make a testamentary disposition of movables is regulated by the lex domicilli of the testator. The
material validity of a will and its whole operative effect as regards movable estate depends on the
testators last domicil.[14] The capacity to make a will in respect of immovables is governed by
the lex situs.[15] However, section 24 of the Land Use Act makes an exception to the lex situs
rule. The section provides thus :

24. The devolution of the rights of an occupier upon death shall

(a) in the case of a customary right of occupancy, unless non customary law
or any other customary law applies, be regulated by the customary law
existing in the locality in which the land is situated; and
 (b) in the case of a statutory right of occupancy (unless any non customary
law applies) be regulated by the customary law of the deceased occupier at the
time of his eath relating to the distribution of property of like nature to a right
of occupancy :

Provided that

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
X

Thus pursuant to Section 24(b) of the Land Use Act, where the land is subject to a statutory right
of occupancy, unless any non customary law or other customary law applies the devolution of
rights to the land may be governed by the customary law of the deceased occupier rather than the
lex situs.

Generally, all natives of Nigeria who have not contracted monogamous marriages are regulated,
having regard to the preponderance of their personal relations, by their appropriate customary
laws, or for those who profess Islamic faith, by Islamic Law. The problem of ascertaining and
determining the appropriate personal law could become complex where natives contract
monogamous marriages. Professor I. O. Agbede provides a vivid illustration :

Take for example, X, a Muslim of Northern Nigeria origin, marries under the
Marriage Ordinance and acquires a domicile of choice in Oyo State. Questions
of dissolution of his marriage will be governed by the Federal law. If he makes a
Muslim will, his capacity to make such a will as well as the material validity of
the will, will be governed by the Islamic law of his northern origin. If he dies
intestate, succession to his movables wherever situated will be governed by the
Administration of Estates Law of Oyo State. On the other hand, if he makes a will
under the general law, it will be governed essentially by the Wills Law of Oyo
State.

His real property located in Oyo State will devolve in accordance with the
customary law if he married under the customary law, whereas the
Administration of Estates Law would govern any such matters if he had
contracted a monogamous marriage. Consequently, those matters normally
regulated by a single system of law under English law, may be cumulatively
regulated by four or more systems of law in Nigeria.[16]

This is made more complex by the fact that a person may change his personal law by the process
of culturalization. In Olowu V Olowu[17] the deceased Adeyinka Ayinde Olowu who had
settled in Benin had died intestate and his estate was distributed by the first respondent who was
his first son and a co-administrator of the estate according to Benin customary law. The
appellants were not satisfied with the distribution and therefore brought an action seeking the
setting aside of the distribution inter alia on the ground that the deceased having been a Yoruba
of Ijesha origin, his estate should be distributed in accordance with the Ijesha native law and
custom. The court held that although the deceased was Yoruba by birth, he had before his death
become a Bini by culturalization and that Bini customary law was applicable to the distribution
of his estate.

Under the received English law, a wife takes the domicile of her husband. As was held in Machi
V Machi[18] :

It is trite law that the domicile of the wife follows that of the husband and the
wife cannot have a domicile different from that of the husband while the marriage
lasts.

Although this rule has been castigated and appropriately described as the last barbarous relic of
a wifes servitude[19] it nonetheless remains the rule in Nigeria. Thus a deserted or separated
wife retains the domicile of her husband. In making her will, a deserted or separated wife must
comply with the lex domicilii of her husband, which law she may not know. Furthermore, upon
this perhaps unknown law depends the succession of her movable intestate estate if she in fact
dies intestate.

Subject to the conflict of law rules, the Wills Acts of 1837 and 1857[20] and the Wills Laws of
the various states that have enacted their own Wills Laws, confer testamentary capacity on every
person who is sui juris without any disqualifying disability. It should be noted that whereas the
Wills Act of 1837 as amended by the Wills (Amendment) Act of 1857, and the Wills Law of
Western Nigeria 1959, provide that no will made by a person under the age of 21 years shall be
valid, the Wills Edict of Lagos State reduces the age at which capacity to make a will is attained
to eighteen years. It should be noted that in Rivers State, the will of a person who immediately
before his death was subject to Islamic Law is exempted from the provisions of the Wills
Edict.[21] The import of this provision in the Rivers State enactment (which is applicable in
Rivers and Bayelsa states) is that where a person was immediately before his death subject to
Islamic law, his will cannot be construed having regard to the provisions of Edict No. 17 of 1988
but rather, will be construed in accordance with Islamic law. Thus a person who is subject to
Islamic law immediately before his death, lacks the testamentary capacity to make a will within
the purview of the Wills Edict No. 17 of Rivers State.

Section 3(1) of the Wills Law of Western Nigeria[22] is worthy of special mention as it has been
a source of controversy as to whether testamentary capacity is circumscribed by customary law.
The said section reads thus :

Subject to any customary law relating thereto, it shall be lawful for every person
to devise, bequeath or dispose of, by will executed in manner hereinafter required
all real estate and all personal estate which he shall be entitled to either in law or
in equity, at the time of his death and which if not so devised, bequeathed and
disposed of would devolve upon the heir at law of him, or if he became entitled
by descent, of his ancestor or upon his executor or administrator.

In Oke & Anor V Oke & Anor[23] Elias C.J.N., in interpreting the section held thus :-
 It is not to be supposed that Section 3(1) of the Wills Law can confer upon a
testator the testamentary capacity to devise property by will which the testator
would not otherwise have. The introductory phrase subject to any customary
law relating thereto necessarily makes the power given to a testator under the
sub-section dependent upon the particular customary law permitting it. In effect,
the power of the testator to devise his real and personal estates by will is limited
by the extent, if any, to which its exercise is permissible under the relevant
customary law.

The case was cited with approval in Adeniyi Olowu & Ors V Olabowale Olowu [24] However,
in Idehen V Idehen[25] confusion crept into the interpretation of Section 3(1) of the Wills Law
of Western Nigeria. Kawu, Karibi-Whyte, Wali and Nwokedi JJSC, held that the section does
not limit testamentary capacity but rather only qualifies the subject matter of the devise.[26] On
the other hand, Mohammed Bello CJN and Olatawura JSC held that the phrase subject to any
customary law relating thereto in Section 3(1) of the Wills Law is a qualification of the
testators capacity to make a will and also a qualification of the property to be devised.[27]
Belgore JSC, in his judgement took no position as to whether the section merely qualifies the
property to be devised or whether it also circumscribed testamentary capacity.

In the later case of Lawal-Osula V Lawal-Osula[28] Belgore JSC, delivering the lead judgement
of the Supreme Court held that pursuant to Section 3(1) of the Wills Law of Western Nigeria a
person can make a will but the device, bequest or disposition shall not be inconsistent with the
established customary law and shall at any rate be governed by the relevant customary law. In
his concurring judgement Mohammed Bello CJN, by adopting the lead judgement without
more[29] must be taken to have abandoned his earlier position in Idehen V Idehen (supra). In
another subsequent case Agidigbi V Agidigbi[30]the Supreme Court held that the phrase
subject to any customary law relating thereto is only a qualification of the subject matter of the
property disposed of or intended to be disposed by Will and is not a qualification of the
Testators capacity to make a will.

From the above it appears clear that in those states in which the Wills Law of Western Nigeria
remains operative, it is testamentary disposition that is subject to customary law and not
testamentary capacity. However, in other jurisdictions in Nigeria where the Wills Act of 1837 as
amended by the Wills Act of 1857 is in force there appears to be a freedom of testamentary
disposition in respect of those properties over which the testator possesses testamentary
capacity. In Rivers State, Section 1(1) of the Wills Edict[31] provides thus :

It shall be lawful for every person to bequeath or dispose of, by his will executed
in accordance with the provisions of this Edict, all property to which he is
entitled, either in law or in equity, at the time of his death :

Provided that the provisions of this Edict shall not apply

(a) to any property which the testator had no power to dispose of by will
or otherwise under Customary law to which he was subject; and
 (b) to the will of a person who immediately before his death was subject to
Islamic Law.

Section 1(1) of the Wills Edict of Lagos State[32]confers testamentary capacity in terms quite
similar to Section 1(1) of the Wills Law of Rivers State except that the Lagos enactment omits
the proviso in respect of persons subject to Islamic Law. It would thus appear that the same
limitations that exist by virtue of Section 3(1) of the Wills Law of Western Region in respect of
testamentary disposition now apply in those States. This limitation would also apply in those
states that adopted the model Wills Law prepared by the Law Reform Commission.

Cognisance must however be taken of the obiter dictum of Karibi-Whyte JSC, in Idehen V
Idehen[33] where the learned Justice of the Supreme Court held thus

There are however, and still are, recognised status which at customary law affect
the capacity to make a will. For instance a wife cannot by the exercise of
testamentary disposition deprive her husband of his succession rights in her
estate. Also in the matrilineal societies to which a matrilineage is involved in an
intestacy, a testator cannot devise away the right to such property without consent
of those entitled. Outside these limitations it is not certain whether testamentary
power cannot be exercised. This by no means suggests that the Will so made is
void merely on account of the incapacity of the dispositions contained therein.

We must state with respect that the obiter dictum of the learned Justice of the Supreme Court
should not be taken as being applicable to all ethnic nationalities in Nigeria. Among the Yoruba
for instance, it is the children who inherit and not the spouse. Where a person dies without issue,
the deceaseds property generally passes to his or her uterine siblings (omo iya).[34]

At this juncture it is pertinent to address the question as to whether a person possesses the
testamentary capacity to dispose of his body, organs or other parts by will. Is there any
property in the human body and if so in whom is it vested?

In Williams V Williams[35] the court held that :

It is quite clearly the law of this country that there is no property in the dead
body of a human being

At page 665, the court held further that

it follows that a man cannot by will dispose of his dead body. If there be no
property in a dead body it is impossible that by will or any other instrument the
body can be disposed of.

Although the American courts have followed the English no property rule, they have nonetheless
recognized the interest of relatives in burying their dead. Thus in Pierce V Proprietors of Swan
Point Cemetery[36] the court held that :
 Although the body is not property in the usually recognized sense of the
word, yet we may consider it as a sort of quasi property to which certain persons
may have rights, as they have duties to perform towards it arising out of our
common humanity. But the person having charge of it cannot be considered the
owner of it in any sense whatever; he holds it only as a sacred trust for the benefit
of all who may by family or friendship have an interest in it.

In our view, the law is no different in this country. Thus, can a man validly by will donate his
heart or liver or other organs to an organ bank to facilitate the medical treatment of patients in
need of organ transplants? Generally, we think not. However, the Corneal Grafting Act[37]
makes a notable exception Section 1(1) of the Act provides thus :

If any person, either in writing at any time or orally in the presence of two or
more witnesses during his last illness, has expressed a request that his eyes be
used for therapeutic purposes after his death, the person lawfully in possession of
his body after his death may, unless he has reason to believe that the request was
subsequently withdrawn, authorize the removal of the eyes from the body for use
for those purposes.

Thus in Nigeria a man has the testamentary capacity during his last illness, to dispose of his
eyes for therapeutic purposes only.

2.B.2 The laws that regulate testamentary disposition

In making a will resort must be had to the laws that regulate the disposition of the type of
property intended to be bequeathed or devised. For example Section 25 of the Land Use Act[38]
provides that :

In the case of the devolution or transfer of rights to which any non customary
law applies, no deed or will shall operate to create any proprietary right over land
except that of a plain transfer of the whole of the rights of occupation over the
whole of the land.

Thus where it is intended to devise land, which is the subject of a statutory right of occupancy by
will, we doubt that it is possible to create successive ownership of land by way of settlement.
Thus, we are of the view that a devise of land, which is the subject of a statutory right of
occupancy, in the following words would be void : - To A for life, remainder to B. The
practice of limiting the rights of beneficiaries to deal with land as they deem fit is in our view no
longer permissible. For example, consider the following clause :

I GIVE my son Joseph my land at Eledumare Avenue, Ikate, Lagos State which
land is covered by Certificate of Occupancy No. 876/X registered as No. 45 at
page 45 in Volume 576X of the Land Registry in the office at Lagos. I DIRECT
that on no account should he mortgage, sell or otherwise alienate the said land.
This clause in our respectful view is in conflict with Section 25 of the Land Use Act to the extent
that it purports to limit the rights of the beneficiary to deal with the land. What the law permits,
when the land is one to which non-customary law applies, is a plain transfer. In our view, a
plain transfer admits of no limitations.

A question which often arises is whether a person may by will make a gift of land to a non-
Nigerian. Section 1 of the Land Use Act provides thus

1. Subject to the provisions of this Act, all land comprised in the territory of
each State in the Federation are hereby vested in the Governor of that State and
such land shall be held in trust and administered for the use and benefit of all
Nigerians in accordance with the provisions of this Act.

It is clear that this section vests all land comprised in the territory of each state who shall hold
the same as a statutory trustee. Note that the beneficiaries of the statutory trust are all
Nigerians. Thus can A by will make a gift of his house in Victoria Island, Lagos to his
Ghanaian wife, where the said wife has not become a citizen of Nigeria pursuant to Chapter III
of the Constitution of the Federal Republic of Nigeria 1999? We think not. The Governor in
our respectful view is enjoined to hold the land for the use and benefit of Nigerians.

2.B.3 The nature of wills and testamentary instruments

With the exception of priviledged wills[39] all wills must comply with the formal stipulations of
the Wills Law to be valid. The requirements are as follows[40] :

(a) The will must be in writing

(b) It must be signed by the testator or signed in his name by some other person in
his presence and by his direction, in such place on the will so that it is apparent on
the face of the will that the testator intended to give effect by signature to the writing
as his will;

(c) The testator makes or acknowledges the signature in the presence of at least
two witnesses present at the same time;

(d) The witnesses attest and subscribe the will in the presence of the testator but no
form of attestation or publication shall be necessary.

All obliterations, alterations or interlineations in a will, made after its execution must be
executed in the same manner as the will itself.[41] A will is construed as speaking from the
death of the testator.[42] Thus it is ambulatory in nature and is revocable prior to the death of
the testator.

If any person to whom or to whose spouse a gift is given under a will, attests the will as a
witness, the gift to the person so attesting or to his spouse under the said will would be made
void.[43] An executor can be a witness to a will.[44] Where a creditor or his/her spouse witness
a will, the fact of his attestation shall not disqualify him from being a witness to prove the
validity or invalidity of the will.

2.B.4 Family provisions in Nigerian wills enactments

Section 2 of the Wills Law of Lagos State provides that when a child or spouse of the deceased
testator is of the opinion that the dispositions of the testators estate effected by his/her is such
that inadequate financial provisions have been made for him or her, he/she may bring an
application to the court for relief within 6 months of the grant of probate. Section 2 of the Wills
Edict of Rivers State No. 17 of 1988 makes similar provisions but expands the categories of
persons who may bring this application to include parents and siblings of the deceased.

In Anambra State, when a dependent of a deceased person is of the view that the testate or
intestate disposition of the deceaseds estate does not reasonably provide for him or her, such
dependant may apply to the court for relief. Dependants who can bring this application are the
spouse, a male child who has not attained the age of eighteen years, a female child who has not
attained that age and has not been married at an earlier age, a child who is attending an
educational or vocational training institution or who by reason of physical or mental disability is
incapable of maintaining himself or herself.[45]

It is pertinent to note that the Wills Act of 1837 and the Wills Law of Western Region 1959 have
no family provisions. Thus when preparing a will in a state where the Wills Law has family
provisions it is important to ensure that adequate financial provisions are made for those family
members who are entitled to seek relief should such provisions not be made.

2.B.5 Revocation and revival of Wills

A will may be revoked in any of the following ways :

(a) By express or implied revocation. Where in a subsequent will or codicil, an

earlier will is revoked, it is said to be expressly revoked.[46] Where the provisions
of an earlier will are inconsistent with the provisions of a later will, the earlier will is
said to be impliedly revoked.

(b) By destruction. A will stands revoked by burning, tearing or otherwise

destroying the same by the testator or by some person in his presence and by his
direction with the intention of revoking the same.[47]

(c) Every will made by a man or woman shall be revoked by his or her
marriage (other than a marriage in accordance with customary law).[48] However,
whereas in Lagos, Rivers and Bayelsa States subsequent marriage cannot revoke a
will where it is expressed to be made in contemplation of the celebration of that
marriage and the names of the parties to the marriage contemplated are clearly stated,
this exception is not made in the Wills Law of Western Nigeria 1959. However
under all the various wills enactments a will is not revoked by subsequent marriage if
it is made in exercise of a power of appointment when the property thereby
 appointed would not in default of such appointment pass to his or her heir, executor
or administrator or the person entitled as his or her next of kin under any written law
relating to the distribution of the estate of persons dying intestate.[49]

In Jadesimi V Okotie-Eboh[50] the issue for determination was whether the will of
Chief Festus Samuel Okotie-Eboh duly executed by him on 21st August 1947 had
been revoked by operation of law on account of his subsequent marriage under the
Marriage Act in 1961 to the same woman to whom he had been lawfully and
continuously married under customary law since 1942 up to the date he executed the
will and until his death in 1966. The Supreme Court held that where the parties
undergo a form of marriage under customary law and subsequently go through
another marriage under the Marriage Act, the second marriage is clearly valid as a
monogamous marriage. It is also plain that such a second marriage under the
Marriage Act converts the Customary Law marriage that was potentially
polygamous to a monogamous marriage which is the form of marriage
contemplated under Section 18 of the Wills Act 1837[51]. The court went on to say
that under section 18 of the Wills Act, 1837 of England, the marriage which can
revoke or invalidate an existing will of either of the parties, is a marriage within the
English concept. This connotes a marriage between a man and a woman each of
whom at the time of the marriage was unmarried or free to get married and therefore
possessed the legal capacity to contract a lawful marriage. In my view however, the
marriage contemplated under Section 18 of the Wills Act 1837 of England cannot
conceivably include a subsequent marriage under the Marriage Act Cap. 155
between a man and a woman who are already validly married under customary law
and living together as husband and wife before either of them made his last Will and
Testament and after which the subsequent marriage under the Act was performed. In
other words, section 18 of the Wills Act, 1837 of England by its tenor does not
appear to cover a subsequent marriage under the Marriage Act by a man and woman,
such as the testator in the present case and his wife, the 1st respondent, who prior to
the said subsequent marriage under the Act had been, validly married under
customary law and living together as husband and wife even before the will in issue
was made.[52]

A will that has been revoked other than by destruction can be revived by re-executing it or by
executing a codicil in which is indicated an intention to revive the revoked will.

2.B.6. The Saving of gifts

Under the various wills enactments, where any person being a child or other issue of the testator
for whose benefit a disposition shall be made for any interest not terminable at or before the
death of such person, shall die in the lifetime of the testator leaving issue and any such issue of
such person shall be living at the time immediately after the death of the testator, the disposition
shall not lapse but take effect as if the death of such person had happened immediately after the
death of the testator, unless a contrary intention shall appear by the will.[53]
It should however be noted that in the states in which the Wills Law Cap. 133 of Western Region
still apply, the application of this rule may be modified by customary law. In Idehen V Idehen
(supra) a case from the old Bendel State where the law is still applicable, Joshua Iserhienrhien
Idehen who died on 18th September 1979, had by clause 11 of his will dated 10th March 1973
devised his two houses at No. 62 Akpakpava Street and No. 1 Oregbeni Street, Ikpoba Hill, both
in Benin City to his eldest son, Dr. Humphrey Idemudia Idehen. The deceased lived in these
houses in his life time and they together constituted his igiogbe. Prima facie the devise was
valid been in accordance with the pertinent customary law which requires a Bini man to devise
his igiogbe to his eldest son. Unfortunately however, Dr. Humphrey Idemudia Idehen
predeceased his father Joshua I. Idehen. An issue which was considered in the court of first
instance was whether the properties comprising the igiogbe which had been willed to Dr.
Idemudia Idehen could be passed on to the sons of Dr. Idemudia Idehen by virtue of Section 28
of the Wills Law of W.R. 1959 which was applicable in Bendel State. J. A. P. Oki CJ (as he then
was) held thus :-

I have no doubt in my mind that when Iserhienrhien devised the two igiogbes to
Dr. Humphrey Idemudia Idehen by clause 11 of his will, his intention was only to
comply with the above Bini customary law which, from all I have said, he must
be presumed to have known very well. In short, he devised the Igiogbes to his
first son qua first son with the full knowledge and hope that that would be the
person to perform his funeral ceremonies and step into his shoes, whenever he
died.

Having held that the property devised in clause 11 was only intended for a first
son who survived his father, and having regard to the fact that the 1st Plaintiff
became the first surviving son of Iserhienrhien after the death of Humphrey, the
question is whether the properties devised in clause 11 of the will have passed to
the sons of Humphrey by virtue of Section 28 of the Wills Law reproduced
above. In the face of the accepted custom of the Bini people, the answer to this
question must be an emphatic No. In fact, even if Iserhienrhien had devised them
directly to Humphreys sons after Humphreys death, such devise would have
been void for being against Bini customary law. See Section 3(1) of the Wills
Law (reproduced above) which enjoins a testator to make his will subject to
customary law.[54]

2.B.7 Privileged Wills

Certain persons do not have to comply with the requirements of the Wills Law in order to make a
valid will. For example Section 9 of the Wills Law of Western Region 1959 exempts any soldier
being in actual military service or any member of an air force or any mariner or sea man being at
sea from the strict formalities of the Wills Law.

For this privilege to be enjoyed, the soldier must be in actual military service or the mariner or
sea man must be at sea.. For members of the Air Force, it is enough that they are members as no
requirement of actual military service is placed on them.[55]
Certain Federal enactments also make provisions relating to the wills of soldiers, airmen and
ratings. Any will made by a soldier, airman or rating shall be valid for disposing of any money
or personal property if it is in writing and signed or acknowledged by him in the presence of, and
in his presence attested by one witness, being

(a) where the testator is a soldier, an officer of or seconded to the Army or any
government medical officer

(b) where the testator is an airman, an officer of the air force or any government
medical officer, or

(c) where the testator is a rating , an officer of the navy or any government medical
officer.

Please note that the federal provisions are limited to wills of money and personal property.

2.B.8. Nuncupative wills

In Idehen V Idehen Karibi-Whyte JSC in an obiter dictum said :

It has not been suggested that there are any rules of customary law which
regulate the capacity to make a will, or that the making of wills is unknown at
customary law. Whereas making of written wills under statute is clearly unknown
at customary law, nuncupative wills have always been recognized. Death bed
dispositions and other expressed wishes of the deceased are held sacrosanct and
generally observed.[56]

Nuncupative (oral) wills are quite common under customary law and an example is the Ike Ekpe
under the customary law of Ndiakunwanta/Arondizuogu.[57] It is however of the essence that
death bed dispositions be made in the presence of credible witnesses. In Ayinke V Ibidunni [58]
the court held that a disposition made in secret to one of the beneficiaries was invalid. The
expert witness in that case stated that there should be at least four witnesses to such a disposition.

In the light of the above, it is clear that there can be testate succession under customary law and
it is submitted that where a valid nuncupative will is left under customary law, the estate of the
deceased must be distributed in accordance with the terms of the nuncupative will. It thus
becomes unnecessary in making a nuncupative will to conform with the stipulations as to
execution and attestation in the Wills Laws of the various jurisdictions.

ESTATE PLANNING

Because circumstances differ, it is not possible to develop a cast iron framework for estate
planning. However, as earlier indicated, it is necessary to take into account the laws of wills,
(which we have considered above), taxes, insurance, property and trusts so as to gain
maximum benefit of all laws while carrying out the testators wishes for the disposition of his
property upon his death. In this task it becomes necessary to ask certain key questions :
(a) What are the real and personal assets of the testator and where are they located?

(b) What is the lex domicilii of the testator and how does that affect the devolution of his
personal property?

(c) What is the lex situs in each location in which the testator has landed property and what are
the implications for his plans?

(d) How does the testator intend to distribute his real and personal property?

(e) Who are the testators dependants within the meaning of the family provisions (if any) of
the Wills Laws of the various states in which the testator has property?

(f) What would be the probable cash needs of the testators family and dependants at his death
and in the future?

(g) What are the tax effects of the testators proposed devolution plan and how can the
incidence of taxation be lawfully mitigated?

(h) To what extent can a life insurance policy ease the cash flow problems the testators family
may have after his death?

(i) To what use can the instrumentality of the trust be put in order to more efficiently give
effect to the wishes of the testator?

3.1 Trusts, settlements and estate planning Tax considerations

A trust has been defined as a relationship which is recognized by equity. It arises where
property is vested in a person or persons as trustees which those trustees are under a duty to
hold for the benefit of other persons known as cestuis que trust or beneficiaries.[59]

An executor was clearly distinguished from a trustee in Adeniji V Probate Registrar[60] In

the words of Fatayi-Williams J :

The office of an executor is not on all fours with that of a trustee. This is why, for the sake
of clarity, a person is appointed both executor and trustee in a will if it is intended that he should
also act as trustee under the will. For example, a trustee can appoint other trustess he can also
retire from the trust as has been provided for in s. 26 An executor on the other hand, cannot
retire from his office once he has proved the will. Furthermore, he cannot transfer his duties to
someone else In this connection, reference may be made to the clear state of the law made by
Sachs J. in Re Skinner (1958) 3 All E.R. 273 at p. 276 :

First it is axiomatic since the days of Blackstones Commentaries that at common

law there can be no assignment of the office of executor as it is an office of
personal trust. Leaving out of consideration certain specific statutory provisions
it follows that the rights, powers and duties of an executor cannot be assigned
 by him; nor can an executor properly assign property he holds by virtue of his
office, save in the course of carrying out his duties under that office. It is to be
noted that not only is the office of executor one of personal trust but that third
parties (such as those who may take under the will) have an interest in seeing that
no such assignment by an executor takes place.

At this juncture, we will consider some tax laws and their relevance to estate planning. The tax
laws to be considered are :

Personal Income Tax Act

Companies Income Tax Act Cap. 60 of 1990 as amended

Capital Gains Tax Act

The relevant portions of these laws are discussed hereunder.

Personal Income Tax Act

This Decree (now Act) makes provisions for the taxation of settlements, trusts and estates.
Section 100 of the Decree defines the under-listed terms as indicated :

executor includes any person administering the estate of a deceased person

person includes an executor, trustee, company, partnership, community, family and

individual.

taxable person means any individual or body of individuals (including a family), any
corporation sole, trustee or executor, having any income which is chargeable with tax under the
provisions of this decree.

child includes step child, an adopted child and an illegitimate child.

settlement includes any disposition, trust, covenant, agreement, arrangement or transfer of

assets.

settlor in relation to a settlement, includes a person by whom the settlement was made or
entered into directly or indirectly, and, in particular (but without prejudice to the generality of the
foregoing) includes a person who has provided or undertaken to provide funds directly or
indirectly for the purpose of the settlement, or has made with any person a reciprocal
arrangement for that other person to make or enter into the settlement.

Section 16 of the Act (PITA) provides that the income of an individual or of a trustee or executor
from a settlement, trust, or estate of a deceased person, made created or administered in Nigeria,
or in the case of a settlement or trust made, created or administered in Nigeria, shall be
ascertained in accordance with the provisions of the second schedule to the Act. Paragraph 2 of
the second schedule to PITA provides generally that for the purposes of taxation, the income of a
settlement or trust (other than a settlement on unmarried children) or of the estate of a deceased
person shall be so much of that income as is derived from a source in Nigeria and any of the
income brought into or received in Nigeria. This would include but is not limited to gains or
profits from any trade, business, profession or vocation; dividends, interest and royalties; rent or
premium; and fees. Where the estate of a deceased person comprises of income derived from
sources in Nigeria and abroad, it would be prudent to consider the relative tax rates before
bringing the foreign income into Nigeria. The incidence of double taxation would also have to
be considered. Please note that any annuity of a fixed annual amount paid to an annuitant is
chargeable to tax as income of the annuitant.

The income of a settlement or trust shall for all purposes be deemed to be the income of the
settlor or person creating the trust in the following situations.[61] :

a. Where the settlement or trust created allows the settlor or person to retain or he
acquires an immediately exercisable general power of appointment over the capital
assets of the settlement or trust or over the income derived therefrom;

b. Where the settlor or person makes use, directly or indirectly, by borrowing or

otherwise, of any part of the income arising under the settlement or trust.

c. Where the settlement or trust is revocable in circumstances whereby the settlor

or person or his/her spouse resumes control over any part of the income or assets
comprised therein

d. Where the settlement or trust is paid to or for the benefit of an unmarried infant
being the child of the settlor.[62]

Save as aforesaid, the trustees or the beneficiaries are taxable. The aggregate income of a trust
or settlement from all sources for each period of twelve months ending on the thirty first day of
December in each year is referred to as the computed income.[63] This computed income is
adjusted for tax purposes like the income of a taxable individual.

In computing and thus arriving at the tax payable the following are the deductions against the
computed income of the settlement or trust [64]:

a. Any expenses of the trustee or executor relative to the settlement, trust or estate
which is authorized by the terms of the deed of settlement or trust or of the will, as
the case may be.

b. Any annuity of fixed annual amount paid out of the income of the settlement,
trust or estate in accordance with the deed or will

c. All expenses that are reasonably, necessarily and exclusively incurred in

generating the income from a trade or business. Examples are rent, repairs to the
premises, bad debts incurred in the course of business, contributions to a pension or
 provident fund approved by the Joint Tax Board and any contribution to a retirement
benefit fund, research and development expenses reasonably incurred.

d. Any capital allowances due on the assets used in generating the income.

e. Any losses incurred in previous years from the same source. The limitation
period for relieving trade losses is four years.

It should be noted that the income of a trust or settlement may be exempted from tax. Such
exemptions are provided for in the third schedule to PITA, section 19 of Company Income Tax
Act and sections 27 to 42 of the Capital Gains Tax Act.

In planning how to reduce the incidence of taxation, a consideration of tax havens, tax free
investments or in ventures that generate lower tax liabilities as well as a due awareness of capital
allowance claims is of the essence. Past losses can also be used to reduce tax liabilities.

It appears attractive to invest in offshore businesses and not bring the income into Nigeria so it
does not form part of the computed income. One must however consider some provisions of
PITA which appear to be conflicting in nature.,

Section 3(1) of PITA provides thus

Subject to the provisions of this Decree, tax shall be payable for each year of
assessment on the aggregate amounts each of which is the income of every
taxable person, for the year, from a source inside or outside Nigeria
including, without restricting the generality of the foregoing

However paragraph 2(1) of the Second Schedule provides thus :

For the purpose of this Part and Part III of this Schedule, the income of a
settlement or trust, other than a settlement or trust to which the provisions of
paragraph 4 of this Schedule apply, or of the estate of a deceased individual shall
be so much of that income as is derived from a source in Nigeria and any of the
income brought into or received in Nigeria

Prima facie, it would appear that the provisions of the statute would override the provisions in its
schedules. However, when one considers the provisions of Section 2(6) of PITA one would tend
to believe that the provisions of paragraph 2(1) of the second schedule would still stand. Section
2(6) of PITA provides thus :

(6) In the case of income arising to a trustee of any settlements or trusts, or

estates or to an executor of any estate of a deceased person, tax may only be
imposed by the territory of which the tax authority is the relevant tax authority in
relation to such settlement, trust or estate and to the extent provided in the Second
Schedule to this Act.
It should be noted that the trustees of a trust are jointly and severally liable to the tax assessed.

Companies Income Tax Act

The distributive income from companies is by way of dividends. This income is subject to
withholding tax at the rate of 10% for limited liability companies and 5% for trustees. When this
income is received by a Nigerian company, it becomes franked investment income that is not
subject to further taxation in the hands of the recipient company. Thus where the trustee is a
trust company tax benefits could accrue. Capital allowances mat also be claimed on income
generating assets vested in the company. Losses could also be set off against future tax
liabilities.

Capital Gains Tax Act

The disposal of properties, debts, options, incorporeal property, currencies (foreign) are
chargeable to tax at a rate of 10%. Some assets are however exempt from CGT e.g. shares,
stocks and private property in which the owner resides. A careful consideration of this Act with
the view of investing in non-chargeable assets will assist good estate planning.

3.2. Insurance

Apart from protecting the assets of the testator by means of property insurance, a life insurance
policy may provide the much needed financial relief for the dependants of the testator upon his
death. Several policies abound and the lawyer should explore the various options in order to be
able to properly advise his client.

PROBATE PRACTICE

By probate practice we mean the court procedure by which a will is proved to be valid or
invalid. In current usage this term has been expanded to generally include all matters and
proceedings pertaining to administration of estates.

Generally, probate practice is regulated by the Administration of Estates Law and the High Court
Civil Procedure Rules of the various states. The Personal Income Tax Decree[65] and the
Probate (Re-Sealing) Act[66] also make provisions for probate practice.

All applications for the grant of any letter of administration of the estate of any deceased person
or grant of probate of the will of any deceased person should be made to the Probate Registrar at
the High Court of the State.[67] This application can only be made where the deceased has real
or personal property within the territorial jurisdiction of the state. In general, no grant of
administration with the will annexed shall issue within seven days of the death of the deceased
and no grant of administration (not with the will annexed) shall issue within fourteen days of
such death.[68] A caveat against the grant of probate or administration may be entered in the
probate registry of the High Court.[69]
Any person who has in his possession or under his control any paper or writing of any person
deceased, being or purporting to be testamentary must forthwith deliver same to the Probate
Registrar. If any person fails to do so for three (3) months after becoming aware of the death of
the deceased, he shall be liable to a fine of five thousand naira.[70]

Probate or administration is generally not granted to more than four persons in respect of the
same property and where there is a minority or if a life interest arises under the will or intestacy,
administration shall be granted either to a trust corporation with or without an individual or to
not less than two individuals.[71] Where a person dies intestate and administration is granted in
respect of his real and personal estate, that estate shall be deemed to have vested, from the date
of his death until administration is granted, in the Chief Judge.[72]

A testator may appoint individuals or a trust corporation as executors. Where a will has satisfied
all the requirements of the law, it must be admitted to probate. Furthermore, a court must, in the
exercise of its interpretative jurisdiction vindicate the testamentary intention of the deceased who
is either the testator or testatrix by giving effect to his or her testamentary disposition of
property. In other words, a court of law has no jurisdiction to re-write a will in the guise of
construing its provisions.[73]

At this juncture we will consider the procedure for applying for letters of administration and
grants of probate.

Letters of Administration (Not with Will)

When a person dies intestate domiciled within a State and is possessed of real or personal
property and it is desired to apply for letters of administration a letter is written to the Probate
Registrar intimating him of the deceaseds death and of the desire to apply for a grant of
administration and attaching thereto a copy of the death certificate.

Upon the receipt of the letter the Probate Registrar if satisfied as to the time and place of the
deceaseds death would then proceed to ascertain the value of the property to be covered by the
administration. Accordingly, forms would be issued to the applicants on which the details of real
and personal property would be given. A bank certificate is also given to the applicants on
which the bank endorse the balances on the accounts of the deceased person.

A person to whom administration is granted must swear to an Oath of Administration (Without

Will) and also give a bond with two or more responsible sureties to the Probate Registrar[74].
The bond shall be in penalty of double the amount under which the estate of the deceased is
sworn. A form is also filled to indicate the next of kin and members of the family of the
deceased.

The real and personal estate of the deceased is then assessed and the applicants are invited to pay
the probate fee (10% of the value of the estate) and the costs of publication and other
administrative expenses. Please note that application may be made for either, personal or real
property or both.[75]
Administration of the estate of foreign citizens

Where a foreign citizen dies within the jurisdiction of the court without leaving within the
jurisdiction a widow, widower or next of kin, the Probate Registrar shall collect and secure all
money and other property belonging to the deceased, and shall then inform the nearest consular
officer of such country of the death of the deceased, and transmit to him a list of the money and
property of the deceased.[76] Application may then be made by such consular officer or such
person authorized by him to administer the estate of the deceased.

Administration Generally

Every person to whom a grant of probate or Letter of Administration shall have been made, and
every administrator appointed by the Court shall, if called upon by the Court so to do, file in
Court the accounts of his administration, and shall thereafter file such periodic accounts as the
Court may direct until the completion of the administration.[77]

The Personal Income Tax Act also provides thus :

A trustee of a settlement in Nigeria, and the executor of an estate in Nigeria shall

prepare accounts of the income from all sources of the settlement, trust or estate
for successive periods to the thirty-first day of December in each year, and to the
date on which the assets of the settlement, trust or estate are finally
distributed.[78]

Probate Procedure

Wills may be proved in two ways in common form or in solemn form. A will is said to be
proved in common form where its validity is not questioned. However, it is said to be proved in
solemn form when it is propounded in an action to which persons who are interested under
another will or upon the intestacy of the testator are made parties and the validity of which is
pronounced upon by the court after hearing evidence.

An application for the grant of probate is made to the Probate Registrar of the High Court.[79] A
person may apply personally for a grant of probate or through a legal practitioner. If an
application is made through a legal practitioner, the legal practitioner must give an address of his
place of business within the jurisdiction.[80] The Judge must not allow any grant to issue until
all inquiries which he may see fit to make have been answered to his satisfaction and may
require proof of the identity of the deceased or of the applicant beyond that contained in the
oath.[81]

Every application for a grant shall be supported by an oath in the form applicable to the
circumstances of the case, which shall be contained in an affidavit sworn by the applicant, and by
such papers, as the Judge may require.[82] In practice, the applicants are given forms which
would provide the details and value of the testators real and personal property and a bank
certificate upon which the bank would endorse any balances held in favour of the testator. This
is necessary in order to enable the Probate Registrar assess the value of the testators estate for
the purposes of levying probate tax at the rate of 10%.

Where the deceased had an alias or other name, the applicant must state both names in the
oath.[83] Every will in respect of which an application for a grant is made shall be marked by
the signatures of the applicant and the person before whom the oath is sworn , and shall be
exhibited to any affidavit which may be required as to the validity, terms, conditions or date of
execution of the will.[84]

Where a will contains no attestation clause or the attestation clause is insufficient or where it
appears to the Judge that there is some doubt about the due execution of the will, he shall before
admitting it to proof, require an affidavit as to due execution from one or more of the attesting
witnesses or, if no attesting witness is conveniently available, from any other person who was
present at the time the will was executed. If no affidavit can be obtained as aforesaid, the Judge
may accept evidence on affidavit from any person he may deem fit to show that the signature on
the will is the handwriting of the deceased, or of any other matter which may raise a presumption
in favour of the due execution of the will. After considering the evidence, if the Judge is
satisfied that the will was not duly executed, he is enjoined to refuse probate and shall mark the
will accordingly.[85]

The burden of proving the authenticity and genuineness of a will lies on the party propounding
it. Thus where there is a dispute as to a will, the person propounding it must show by credible
evidence that prima facie everything is in order. The burden then shifts to the party attacking the
will to establish or show by credible evidence that the allegations made as to the irregularity of
the will are true.[86]

Where the deceased died domiciled outside the state the Judge may order that a grant do
issue[87]

(a) to the person entrusted with the administration of the estate by the court
having jurisdiction at the place where the deceased died domiciled;

(b) to the person entitled to administer the estate by the law of the place where the
deceased died domiciled;

(c) if there is no such person as is mentioned in paragraph (a) or (b) or if in the

opinion of the Registrar the circumstances so require, to such person as the Registrar
may direct jointly with any such person as is mentioned in paragraph (a) or (b) of this
rule or with any other person.

Provided that without any such order as aforesaid, probate of any will which is admissible to
proof may be granted if the Will is in English or in the local vernacular, to the executor named
therein or if the will describes the duties of a named person in terms sufficient to constitute him
executor according to the tenor of the will, to that person.[88] Where the whole of the estate in
the state consists of immovable property, a grant limited thereto may be made in accordance with
the law which would have been applicable if the deceased had died domiciled in the state.[89]
Where a person entitled to a grant resides outside the State a grant may be made to his lawfully
constituted attorney. However where the person so entitled is an executor, administration shall
not be granted to his attorney without notice to the other executors, if any.[90]

All probates are either in solemn or common form but in some circumstances special forms of
probate may be granted which are generally in common form.:-

(a) Double probate : Where several executors are named in the will and the grant of
probate is made to one or some of them, it is the practice to reserve the power to make a like
grant to the others. Sometimes, a testator appoints more than four executors in spite of the fact
that a grant cannot be made to more than four persons. In this case, a grant is made to the first
four and power is reserved for the others to apply as vacancies occur. In the first case when the
executor to whom power is reserved applies, a grant of double probate is made to him. In the
second case double probate is also given as vacancies occur. A grant of double probate confers
the same rights as the original grant.

(b) Cessate probate : Where for instance a testator provides that his executors
should act until the younger of his two sons reaches the age of 25 years or graduates
from University after which the executors should retire and both sons should take
over as the executors, what is made to the two sons is called cessate probate. When a
grant is made for a specified period or until the occurrence of an event, what is
granted on the effluxion of that time or happening of that event is cessate probate.

(c) Limited probate : This is the type of probate granted when the will is lost or
when the testator has limited the executors appointment. When a will is lost, as
opposed to mere loss of the original, the invariable probate practice is that the court
requires the drawing up or reconstruction which represents the lost will, as nearly as
possible, in its original form. Such reconstruction is exhibited to an affidavit which
verifies it and it is then marked by the party applying for the reconstruction and
photographed to enable copies of same to be procured and to be annexed to the
grant. Until the procedure for the reconstruction of a lost will is carried out, it would
be pretentious for any one to arrogate to himself the right to be executor of a lost
will[91]

(d) Probate caetororum : After an executor appointed for a special purpose has
taken his grant and the general executor then applies for a grant, what is made is a
grant of probate caetororum.

Probate or a grant of administration obtained in any Commonwealth country or in any other state
of the Federation of Nigeria can be re-sealed in a state pursuant to the Probate (Re-Sealing)
Act.[92]

CONCLUSION

The focus of our legal education and in fact often times the thrust of practice has been on will
writing rather than estate planning.
The law of property as it has developed in America poses new challenges for testamentary
dispositions in Nigeria. In Hecht V Superior Court (Kane)[93] William Kane in preparation for
his suicide deposited fifteen vials of his sperm in a sperm bank.[94] In his will and in the
Specimen Storage Agreement, he expressed the wish that after his death the sperm should be
released to one Deborah Hecht, a woman with who he had been living for five years before his
death, so she could, if she so wished, impregnate herself. William Kanes children brought an
action for the destruction of the sperm. The California Court of Appeal held that a decedents
interest in his frozen sperm was property over which the probate court had jurisdiction. The
Court held further that the sperm was not an asset of the estate that could be distributed in a
manner inconsistent with the testators intent, and that Kanes clear intent was that Hecht be
artificially inseminated with his sperm.[95]

Under section 3(1) of the Wills Law of Western Region a person can only dispose of personal
and real property by will. The situation is no different under the Wills Act of 1837. However,
the drafting of our new Wills Laws may have left the door open for the testamentary disposition
of body fluids and parts. Section 1 of the Wills Laws of Rivers State and Lagos State confers
testamentary capacity on a testator to dispose of all property. Would the courts be willing to
expand the definition of property to include body fluids and parts? Only time will tell.

* Adekunle Tuyo Esq, Partner, Adekunle Tuyo & Co., Solicitors

[1] Constitution of the Federal Republic of Nigeria 1999 Section 4(7)

[2] This does not apply to states carved out of the former Western Nigeria by virtue of Section 4
of the Law of England (Application) Law W.R. 1959 Cap. 60 which expressly excluded the
application of Imperial Acts.

[3] See for instance Par XXII of the Armed Forces Decree 1993 No. 105 and Sections 83 89 of
the of the Merchant Shipping Act Cap. 224 L.F.N. 1990.

[4] Section 26, Wills Law Cap. 194 Laws of Lagos State 1994.

[5] Section 2 Wills Law Cap. 133 Laws of Western Region 1959

[6] Abridged 5th Ed. West Publishing Co. St. Paul Minn. 1983.

[7] 1959 FSC 280 at 282

[8] Nwosu V Okeke [2002] F.W.L.R. Part 95 366 at 374 paras D-E

[9] (1894) Sar. F.C.L. 221

[10] ibid See also Sarbah J. M. (1894) Fanti Customary Law Pp. 221 223.

[11] See Section 26 (1) High Court of Lagos State Cap. H. 3 L.L.S. 2003
[12] Section 26(2)&(3) High Court Law of Lagos State Cap. H 3 L.L.S. 2003

[13] See Idehen V Idehen [1991] 6 N.W.L.R. Part 198 382 at 418, Nwosu V Okeke [2002]
F.W.L.R. Part 95 366, Ayinke V Ibidunni (1959) F.S.C. 280

[14] Re Ross, Ross V Waterfield [1930] 1 Ch. 377, Annesley [1926] Ch. 692

[15] Dicey and Morris The Conflict of Laws, 10th Ed., Vol. 2 (London, Stevens & Sons, 1980)
Rules 102 and 103 pp. 622 5. See also Nwogugu E. I. Family Law in Nigeria (Ibadan :
Heinmann Educational Books, 1990) p. 373 374.

[16] I. O. Agbede Themes on Conflict of Laws (Shaneson C. I. Ltd, Ibadan, 1989) p. 56

[17] (1985) 12 S.C. 84

[18] (1960) L.L.R. 103 at 104

[19] per Denning M.R. in Gray V Formosa (1963) P. 259 at 267

[20] These are statutes of general application and are still in force in those states carved out of
the former Northern and Eastern Regions that have not enacted their Wills Law.

[21] Sections 1 & 2 Edict No. 17 of 1988.

[22] Cap. 133 W.R. 1959

[23] (1974) A.N.L.R. 401 at 406-407

[24] Supra. See the judgement of Obaseki JSC at pp 105-107

[25] [1991] 6 N.W.L.R. Part 198, 382

[26] ibid at p. 408 paras D-E, p. 421 paras A-B, p. 424 paras G-H, p. 433 para H p. 434 para.
A.

[27] ibid at p. 411 paras E-F, p. 426 paras A-B.

[28] [1995] 9 N.W.L.R. Part 419, 259 at 275 para B

[29] ibid at p. 276 para. H

[30] [1996] 6 N.W.L.R. Part 454 300 at 312 para A, per Kutigi JSC

[31] 1988 No. 17

[32] 1990 No. 12

[33] Supra at p. 417 paras B-C

[34] P. C. Lloyd Yoruba Inheritance and Succession in J. Duncan & M Derret Ed. Studies in
the Laws of Succession in Nigeria (Oxford University Press, 1965, London) pp. 166-168

[35] (1882) 20 Ch. D. 659, 662-63

[36] 10 R. I. 227 at 242-243 (1872)

[37] Cap. 69 L.F.N. 1990

[38] Cap. 202 L.F.N. 1990

[39] Section 9 of the Wills Law Cap. 133 W.R. 1959, Section 6 of the Wills Law Cap. 194
L.L.S. 1994

[40] Section 4 Wills Law Cap. 194 L.L.S., Section 6 Wills Law Cap. 133 W.R. 1959. All the
Wills enactments have similar provisions.

[41] Section 18, Wills Law Cap. 194 L.L.S. 1994

[42] ibid, Section 17

[43] See for instance section 12, Wills Law of Oyo State 1978.

[44] See for instance Section 10, Wills Law of Lagos State Cap. 194 L.L.S. 1994

[45] Section 58 Succession Law Edict of Anambra State 1987.

[46] See Section 13, Wills Law Cap. 194 L.L.S. 1994, Section 17 Wills Law Cap. 133 W.R.
1959.

[47] Ibid.

[48] Section 11 Wills Law Cap. 194 L..L.S 1994, Section 15 Wills Law Cap. 133 W.R. 1959.

[49] See Note 59 above, Section 18 Wills Act 1837, See also Re Gilligan [1950] P. 32, 37

[50] [1996] 2 N.W.L.R. Part 429, 128

[51] ibid. See the judgement of Iguh JSC at p. 155

[52] ibid.

[53] See Section 24 Wills Law Cap. 194 L.L.S. 1994, Section 28 Wills Law Cap. 133 W.R.
1959.
[54] See judgement in Suit No. B/117/80 delivered on 25th September 1985.

[55] See Section 9, Will Law Cap. 133 W.R. 1959, Section 73 Succession Law Edict of
Anambra State 1987.

[56] [1991] 6 N.W.L.R. Part 198 382 at 418.

[57] See Nwosu V Okeke 2002 F.W.L.R. Part 95 at p. 366

[58] (1959) 4 F.S.C. 280

[59] D. J. Bakibinga Law of Trusts in Nigeria (Dept. of Law University of Ilorin, Ilorin : 1989)
p. 18

[60] Cited in Olayide Adigun Equity Trusts and Administration of Estates (Ayo Sodimu
Publishers, Abeokuta, 1987) pp. 350-351

[61] Paragraph 1, Second Schedule Part 1 Personal Income Tax Act No. 104 of 1993

[62] Para 4, Second Schedule Part II, Personal Income Tax Act No. 104 of 1993.

[63] Para 2(2) Second Schedule Part I, Personal Income Tax Act No. 104 of 1993.

[64] ibid

[65] 1993 No. 104

[66] Cap. 370 L.F.N. 1990

[67]Order 55 Rule 1 High Court of Lagos State (Civil Procedure) Rules 2004. Please note that
the High Court Rules of the various jurisdictions contain similar provisions. See also s. 20
Administration of Estates Law Cap. 3 L.L.S. 1994

[68] Ibid.

[69] S. 20 Administration of Estates Law Cap. 3 L.L.S. 1994, O. 55 R. 71 High Court of Lagos
State Civil Procedure Rules 2004

[70] ibid O. 55 R. 4

[71] S. 24 Administration of Estates Law Cap. 3 L.L.S. 1994

[72] ibid, S. 10

[73] Akinkunmi V Sadiq [1997] 8 N.W.L.R. Part 516 277 at 286 Paras G-H, Igboidu V Igboidu
[1999] 1 N.W.L.R. Part 585 27 at 37 paras B-C
[74] Section 31(1) Administration of Estates Law Cap. 3 L.L.S. 1994, O 55 R. 34 High Court of
Lagos State (Civil Procedure) Rules 2004

[75] Ademola, Ejiwunmi & Williams V Probate Registrar (1971) All N.L.R. 157

[76] O. 55 R. 44 High Court of Lagos State( Civil Procedure) Rules 2004

[77] ibid O. 55 R. 46

[78] Decree No. 104 of 1993 Second Schedule para. 14

[79] Order 55 R. 1

[80] O. 55 R 50

[81] O. 55 R. 52

[82] O.55 R. 53

[83] O. 55 R. 54

[84] O. 55 R. 31

[85] O. 55 R. 18

[86] Okelola V Boyle [1998] 2 N.W.L.R. Part 539 533 at 548 paras D-F. See also Johnson V
Maja (1951) 13 WACA 290, Adebajo V Adebajo (1973) 1 All NLR 361

[87] O. 55 R. 62

[88] ibid

[89] ibid

[90] O. 55 R. 63

[91] Ojukwu V Kaine [1997] 9 N.W.L.R. Part 522 613 at 635 636 paras G-A

[92] Cap. 370 L.F.N. 1990

[93] 20 Cal. Rptr. 2d. 275 (Ct. App. 1993)

[94] ibid at p. 276

[95] See Hecht V Superior Court 50 Cal. App. 4th 1289, 1295-1297 (Ct. App. 1996), See also
Anne Reichmann Schiff Arising from the dead : Challenges of posthumous procreation North
Carolina Law Review Vol. 75 No. 3 March 1997.