RIGHT OF
NEXT OF KIN IN RELATION TO INHERITANCE OF A DECEASED PERSONS PROPERTY
INTRODUCTION
People have constantly misunderstood the implication of the
appointment of a next of kin; they believe that once a person is appointed as
next of kin, it automatically gives him/her right to inherit the property of
the deceased. On the contrary, it is only the deceased
person's beneficiaries that can validly inherit his/her estate and a ‘next of
kin' is not one of such persons, unless such ‘next of kin' was expressly named
by the Testator in a will as a beneficiary or by his status, he is entitled by
law to inherit.
Definition
of the term ‘next of kin’
The word “Next of Kin was defined in the case
of JOSEPH v. FAJEMILEHIN O. O. & ANOR[1]
to mean, a person declared to be the nearest of kindred to the deceased. The
Black's Law Dictionary[2]
also defines the word ‘next of kin' as the person or persons most closely
related to a descendant by blood or affinity. Also In the case of MOHAMMED V. TIJANI[3] the Court of Appeal defined a “next of kin”
to mean the person declared to be the nearest of kindred to the deceased.
Simply
defined, a person's next of kin is his closest living relative who will serve
as first contact in the event of emergencies. He is empowered to make decisions
for the person in times of need or where the person is not readily available or
unable to make personal decisions. He is a relative who is contacted first
where the one who named him is incapacitated or when there is any crisis. When
a next-of-kin is provided to a financial institution, the financial assets do
not immediately go to the next of kin. It simply means that the next of kin is
the first point of contact if something should happen to the account owner.
The
court in the case of JOSEPH V. FAJEMILEHIN O.O & ANOR;[4] held
thus:
Let it be placed on record that the term “next-of-kin” can be used
in three senses. Firstly, it can be used to simply refer to the nearest blood
relative or secondly, the person who is to be notified in case of any
eventualities of life such as an accident, emergency or death. Secondly, he may
be required to make medical decisions such as providing information or consent
for a person who is incapacitated or thirdly, the term can be used to refer to
an heir.
Right of
a Next of kin to inherit when there is a Will
Generally, the question as to who is to inherit a deceased persons
estate is determined by law, that is, customary law, Islamic law, English Law
or the Administration of Estates law depending on the law in which the deceased
was subject to during his lifetime.
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. At best the next of kin 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.
Thus,
being a next of kin, does not automatically qualify you to the position of a
beneficiary. For a next of kin to
benefit under a Will, there must be an express provision by the testator to
that effect. This raises the question as to what happens if a person dies
without a Will? Does this mean the person named as his next of kin inherits the
properties? The answer is no. the fact that an individual died intestate, does
not confer inheritance right to the next of kin.
Right
of a next of kin to inherit when an individual dies without a Will
When an individual dies without leaving a will, it is said that
the individual died intestate and the question as to who inherits what in his
estate, is determined by law. Under
intestate succession, a person named as the next of kin by the deceased person
will not be automatically conferred with inheritance rights over the deceased's
property. The question of distribution of a deceased's estate in an intestacy
is governed by the law. The applicable law and how the estate of the deceased
who died intestate would be distributed, is determined in accordance with the law
and custom which the deceased was subject to during his lifetime.
Under English Law and the Administration of
Estate Laws of various states, the surviving spouse together with the children
including children born outside of the marriage[5]
of the deceased inherits his estate to the exclusion of every other person. The
parents of the deceased takes next after the surviving spouse and children,
followed by brothers and sisters of the full blood, brothers and sisters of
half-blood, grandparents, aunties and uncles of full blood relation to the
parents of the deceased etc.[6]
This was the position in KEKEREOGUN
& ORS V. OSHOD[7]
subject however to contrary provisions under the Administration of Estate Laws
of various states.
Section
49 (5) of the Administration of Estates Law of Lagos State; provides that:
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.
In
other words, where a person who is subject to customary law contracts a
marriage under the Marriage Act, there is a presumption that the Marriage Act
shall regulate succession to his intestate estate.
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, these include a surviving spouse (if any) and
children of the deceased but where is no surviving spouse and children, the
parents of the deceased are next in line, followed by the brothers and sisters
of full blood. 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.
Where a deceased native law and custom,
is contrary to equity, good conscience and natural justice, (e.g:
disinheritance of children born out of wedlock or discrimination by
religion/gender)[8] then
same would not apply in the course of distributing the estate of the deceased.
CONCLUSION
From the foregoing, being just a next
of kin without more is inconsequential as far as succession is concerned. A
next of kin is merely the first contact point if anything happens to you. He is
someone empowered to make decisions for you in times of emergency or where you
are not readily available or unable to make the decisions yourself. He is
someone empowered to provide necessary information about you where needed such
as confirming your identity. He is also someone positioned to make medical
decisions such as providing consent for a medical procedure. At best, what a
next of kin can do after the demise of the deceased is perhaps to ensure that
necessary steps are taken towards obtaining letters of administration from the
probate.
Therefore it is advised that an individual
who wishes his next of kin to benefit from his estate, should execute a will
during his lifetime to include his next of kin as a beneficiary.
[1] (2012) LPELR-9849(CA)
[3] (2021) LPELR-54215(CA)
[5]Sec 42(2) of the 1999 constitution of the federal republic of
Nigeria
[6] Sec 49!) of Administration of estate laws lagos state
[8] Ukeje v. ukeje (2014) 11 NWLR (Pt. 1418) 384., muojekwu v muojekwu (1997) 7 NWLR (Pt. 512) 283, muojekwu v.
iwuchukwu (2004) 11 NWLR pt.883, Anekwe
v. Anekwe (2014) 9 NWLR (Pt.
1412) 393.e.t.c