On the grounds of customs and traditions
Another restriction placed by the Law on the Testamentary freedom of the Testator is your custom. Yes, the custom of your people might have placed certain restrictions on your testamentary freedom. I must admit not all states in Nigeria have these customary restrictions. It is quite funny though, some states have Islamic restrictions, others have customary restrictions, and some states do not have any. You just have to find out which your state belongs to.
The main reason why the Law allows for customary restrictions is that the customs of the people make the people, and over time these people have taken anything that comes against these traditions as a threat to their existence, and it upset them gravely. The issue with this is that some customs have been deemed to be unfair to people. Thus, the court has held that, if the custom of the people is not repugnant to natural justice, inequitable, and does not go against good conscience, such custom will stand. In fact, if the custom goes against the fundamental rights of individuals as enshrined (stated) in the Constitution of Nigeria, such custom will not hold water.
Please note that this restriction is applicable to those who do not practice Islam in Nigeria.
I will give a few examples, ordinarily, we are governed by the customs and traditions of our lands in this part of the world. What applies to the Yoruba man, does not apply to the Igbo man and vice versa. In fact, two tribes can share a State in Nigeria and still not have the same traditions. The same goes for the distribution of one’s property after his/her demise. Some cultures will tell you only the first son inherits all the property of the father, and in turn, takes care of his siblings. Others will tell you that when a man was married to more than one wife in his lifetime, the first son of each woman would inherit something. Some cultures disregard daughters when it comes to sharing of properties, others hold them in high value. Some traditions have obligations for a child to perform before being entitled to inheritance, the list goes on and on. Over the years in Nigeria, Court has interpreted section 1 of the Wills Law of Lagos state (which is also similar to other states where customary restrictions apply) to mean that an individual cannot devise (give out) any of his property that is subject to customary law. This means that it is not that the Testator is totally refused from giving out his properties as he wishes, but that if a particular property is governed by the customs of his people, he must do with that property as his custom demands. That means, he can devise any property that is not hinged on a particular custom. Take for instance a man who hails from Benin City, Edo state will not be allowed to Will out of the house he lives in and would most likely die into anyone else except his first male child. This is because the people have a culture that the house a Bini man lives and dies in (popularly called the Igiogbe) is to be inherited by his first male child. It would be a futile effort for the man to will such property to another child, it won’t work out.
So, if our friend Mr. Jide was a Bini man, and he for some reason is not on good terms with his children, he can do with his property as he wishes, but you see that “Igiogbe”, he MUST will to his first male child.
Remember I said that if the custom is in any way repugnant to Natural Justice or against the Constitution of Nigeria, it will not state. There was a case like that one time, from Onitsha to be precise, a man’s Will was challenged because he had ordered that his properties be shared equally between all his children (two males and four females). The argument was that the custom of the Onitsha people did not allow married women to inherit from their father’s estate. The Court held that such customs were discriminated against women because of their gender and infringed their rights, such customs cannot be upheld.
I do not know all the customs of the various tribes in Nigeria as it relates to sharing the deceased’s property. You can help and tell me what yours is by stating the same in the comment section, then we will know if yours can stand against the testamentary freedom of an individual.
Reasonable Financial Provision
This one is funny to me, but hey, it is the law. This one simply says that a relative of the Testator can apply to the Court of that state for an order on the ground that the Will of the testator did not make adequate or reasonable financial provision for the person (The applicant). This relative can be a child, spouse, parents, or siblings of the Deceased. Literally, all the individual has to state is that while the deceased was alive, he/she was totally dependent on the deceased or was helped by the deceased to maintain his life and that the Will in question did not make reasonable financial provision for him/her. So, it means now that even if Mr. Jide is not a Muslim, nor does he come from a state that applies Customary restrictions, one of his relatives (let us say the children he had tried to not include in the Will) can come under this Law to say that said Will does not make reasonable financial provisions for them.
There are questions here to be answered. What can be termed “Reasonable”?
Can a child who the deceased schooled up to the University level still come under this law and say he was not “reasonably” provided for? Can a brother, simply because he lived dependently on the deceased who also had children say that he was not “reasonably” financially provided for? I mean, shouldn’t such a person go and care for himself. Who can we really define as a “relative’” of the deceased? In Nigeria, we know that even kinsmen are seen as relatives. The list goes on and on.
As regards the last three above, I am one of those who believe that once a person writes a Will, the person wants the sharing of his properties governed by the dictates of the Will and not culture or religion or some law. I mean, it is the deceased property, why should some culture dictate to him how he should go about it. That is why he wrote a Will in the first place, to prevent things like these from happening.
As a lawyer, I can suggest a way out of these situations. Rather than writing a Will which might be challenged, you can also just do a Deed of Gift.
What is a Deed of Gift? I will soon post another article on a Deed of Gift, but if you cannot wait to find out, then reach out to me.
Nice reads. Wow