The public has constantly misunderstood the implication of the appointment of a next-of-kin to legal documents. People think once a person is appointed as next-of-kin; it automatically gives him or her the right to inherit whatever property the appointer has upon his demise.
Also, the belief and understanding of the term have made many people shy away from the need to make a will, on the assumption that mere mention of their next-of-kin suffices when they die. This is because they think that appointing a next-of-kin is a way of endorsing a beneficiary.
However, next-of-kin refers to a person’s closest living blood relative. The next of kin relationship is important in determining inheritance rights if a person dies without a will and has no spouse or children.
A Lagos based lawyer, Chief Malcolm Omirhobo, defined next-of-kin as a person’s closest living blood relative and cited the case of JOSEPH V. FAJEMILEHIN O. O. & ANOR (2012) LPELR-9849 (CA) to buttress his point. Omirhobo further explained that nex of kin might not necessarily refer to blood relatives at all. According to him, he may be a close friend or even confidant.
His words: “There is this widespread misconception that if one dies, the fellow’s next-of-kin inherits all his or her assets, but that is not so under the Nigerian legal system. Generally, the question as to who to inherit is determined by law, that is, customary law, Islamic law, English Law or the Administration of Estates law (or equivalent legislation).
“The law to be applicable in distributing the estate of a deceased shall be determined by the incidence of marriage of the deceased. It follows therefore that where a deceased contracted marriage under the Marriage Act, customary law is excluded, and succession to his wealth will be affected in accordance with either the English law or the Administration of Estates Law (or equivalent legislation), depending on the jurisdiction. See Obuzez V. Obuzez (2007) 10 NWLR (Pt. 1043) 430.
“Accordingly, under the Nigerian Law of Intestate Succession, one cannot choose his/her heir under the pretext of next-of-kin. The law imposes heirs on him. When someone dies and he/she leaves a will, the individual is said to have died testate. In a situation like that, the issue of next-of-kin becomes useless. The wealth of the deceased individual would simply be shared in accordance with the provisions of the will.
“When an individual passes on without leaving a will, he/she is said to have died intestate and the question as to who inherits what is determined by law, either through customary law, Islamic law, English law or the Administration of Estate Law.”
Citing section 49 (5) of the Administration of Estates Law of Lagos State, Omirhobo said: “Where any person who is subject to customary law contracts a marriage in accordance with the provisions of the marriage act and such person dies intestate after the commencement of this law leaving a widow or husband or an issue of such marriage, any property of which the said intestate might have disposed by will shall be distributed in accordance with the provisions of this law, any customary law to the contrary notwithstanding.”
He explained that the law to be applicable in the distribution of the estate of the deceased shall be determined by the incidence of marriage in accordance with the laws within the jurisdiction of the deceased. Under English law and Administration of Estates Law of various states, he stated, the surviving spouse together with the children of the deceased inherit the estate to the exclusion of all others. According to him, if there is no surviving spouse and children, the parents of the deceased are next in line, followed by the brothers and sisters of full blood.
The lawyer pointed out that where the deceased contracted a marriage under native law and custom, the customary law would determine who would inherit the estate. However, he noted that where such custom runs contrary to equity, good conscience and natural justice (such as where the custom prohibits women from inheriting or prohibits one of the children from inheriting because such a child was born out of wedlock) then same would not apply in the course of distributing the estate of the deceased.
Omirhobo stressed that there is nothing special about next-of-kin as far as succession is concerned, adding that a person’s next-of-kin is merely the first contact point in case something happens to a person. According to the lawyer, next-of-kin is empowered to make decisions for a person in times of emergency or where a person is not readily available or incapable to make the decisions himself. The fellow, he said, is empowered to provide necessary information about a person where needed, such as confirming ones identity. He added that a next-of-kin is also positioned to make medical decisions such as providing consent for a medical procedure.
“When a person dies leaving behind a will (testate), the matter of next-of-kin becomes superfluous. This is because once a person makes a valid will, he exercises his right to choose the beneficiaries of his wealth and the issue of locating his next-of-kin for the purpose of succession will not arise. So, the best that can be done in the circumstance is to just share the wealth in line with the contents of the will.
“But what if the deceased left no will (dies intestate)? Does it mean the person mentioned as next-of-kin automatically steps into the shoes of the deceased? Well, the answer is no. At best he can only be contacted to be notified of any happening or be asked to give some information about the deceased, but not for him to inherit or benefit from anything.
“Under English Law and the administration of estate laws of various states, the surviving spouse together with the children of the deceased stand at the apex of the hierarchy of the beneficiaries of the wealth of a person who dies intestate (without a will). They inherit his estate to the exclusion of every other person. See the cases of Salubi V. Nwariaku (2003) 7 NWLR, (Pt. 819) at P. 452, Paras. D-E and Williams v. Ogundipe (2006) 11 NWLR, (Pt. 990) 157.
“Where customary law is applicable, the next-of-kin of an intestate are those who are under native law and custom entitled to inherit his estate. Since customary law in Nigeria is not uniform, it will suffice to say that a deceased person cannot, while alive confer inheritance rights on persons not so entitled under customary law by naming them his next-of-kin,” he explained.
He maintained that under the Nigerian law of intestate succession, one cannot choose his or her heir under the pretext of next-of-kin because the law imposes heirs on the fellow. The surviving spouse and children of an intestate, who married under the Act are his heirs, he said, adding that an intestate cannot by naming someone or any of his other blood relatives his next-of-kin, scheme them out of inheritance as the act of naming next-of-kin does not amount to testamentary disposition.
“At best, what a next-of-kin can do after the demise of the deceased is to ensure that necessary steps are taken towards obtaining letter of administration from the probate,” he argued.
An Abuja based lawyer, Joseph Ekwe explained that the order of next-of-kin are categorised as deceased spouse, deceased adult children, deceased parents and deceased adult siblings. Like Omirhobo, Ekwe maintained that a person appointed next of kin by “A” cannot take over “A’s” property when the latter dies. The law of the land, he said, will determine who inherits the property of “A” if “A” dies without writing will.
“But where A died living a will, which he wrote by him, then the will determines who inherits what. The type of law that will be used to determine who inherits the property of the deceased is based on the marriage contracted by the deceased where he died intestate, Ekwe said, arguing that a next-of-kin cannot sue or be sued for the estate of a deceased person.
His words: “The only person that can sue or be sued is the Trustee of the Estate of the deceased or the Executor or Administrator of the Estate and no other. Pursuant to the section 46 (1) of the Constitution of Nigeria 1999 (as amended) which says ‘any person who alleges that any of the provision of this Chapter has been, is being or likely to be contravened in any state in relation to him may apply to a High Court in that State for redress’, a next-of-kin may be allowed to enforce the violated rights of the deceased.”
Another lawyer, Nathaniel Ngwu argued that a will is an exercise of rights over one’s property in writing for the benefit of others after one’s death. Defining a will, Ngwu said it is a testamentary document voluntarily made and executed according to the law by a testator with sound disposing mind to dispose his property(ies) and give directives as he deems fit.
Explaining the importance of written will, instead of relying on the appointment of next-of-kin in some legal documents, the lawyer advised Nigerians who are above 18 years to develop the habit of writing a will, especially when such a fellow has a property or properties.
“It is advisable that every person who is above 18 years of age and owning property(ies) should prepare and file Will/testament before the probate section of the courts, preferably through a lawyer.
“In filing the will, the person must endeavour to comply with the statutory requirements of a valid will; to wit: written in a very concise word, properly signed by the person (testator) or authorise someone to sign on his behalf in his presence, must be done in presence of two witnesses at the same time of signing his signature or acknowledging his signature. The witnesses have to attest and subscribe to the will in presence of the testator, but no form of attestation or publication shall be necessary. See the case of OSHINOWO VS. OSHINOWO (2006) 1WRN 122,” he cited.
Ngwu noted that any form requiring next-of-kin references, the person’s family members such as wife, husband, children and other extended relations particularly person(s) that can be named, which is different from right to inheritance, although the above persons could by the will of a testator, inherit properties.
Citing section 2 of the Will’s Law of Lagos State Nigeria, the lawyer explained: “The next-of-kin is not a prerequisite to a valid will, but could assist to aid smooth procuring of Letter of Administration as Administrators (or even Executors of a will) where a person dies without a will (intestate).”
A Lagos based lawyer, Daniel Asomugha in his opinion said next-of-kin in law of succession are relatives like the children, parents, siblings or other blood relations.
He said: “The concept of next-of-kin describes what we call the concept of blood relations. Most times, a spouse does not necessarily fall into the next-of-kin. In Nigerian law, for the purposes of marriage, if a man dies with a will, in law of succession, there is no problem, whatever he specified in that will is what the executors of the will follow.