INHERITANCE: APPLICATION OF CUSTOMARY LAW IN TODAY’S NIGERIA.
WHAT IS CUSTOMARY LAW:
Customary law refers to those sets of laws or rules which guide the affairs of a people ranging from the lifestyles, traditional beliefs and practices. This practice also extends to inheritance. At the passing of a parent, who gets what and when.
With the advent of English laws or better still today’s legislations concerning inheritance particularly the use of wills, one may wonder whether there are persons who still hold on to customary practice on inheritance. It should be noted here that the application of Wills Law of various states which clearly defines how property should be distributed or gives a guide as to how property should be dealt with, customary practice has not been totally eroded.
It is instructive to note also that though most people today adopt the use of wills in the distribution of their estate, certain restrictions still abound which allows the continuous application of customary law in Nigeria. We shall consider some of these conditions to be met.
Some customary law practices with regards to inheritance have also been incorporated and/or recognized by the relevant applicable laws to inheritance in Nigeria today.
THE APPLICATION OF CUSTOMARY LAW:
It must not be repugnant, against public policy and against equity and good conscience: Any customary law that deprives any person from sharing in the estate of a deceased loved one will be set aside when the affected person goes to court. It should be pointed out here that it is not enough to allege that your right to share in the inheritance of your deceased parent is repugnant. You must show how it has negatively impacted your chance of inheritance.
Sharia law: The sharia law regarding inheritance is that a minimum of 10% of the deceased estate must be reserved for the benefit of his dependents. This means that a muslim can not validly distribute all his assets without making provision for all the persons under his direct care. For example, a man cannot give out all his property denying one or two of his children a share in that estate. Thus, whatever wills he may have made will be rendered invalid because he ought to care for all his dependents. Some states in Nigeria particularly Kwara and some others have made laws to accommodate Sharia which states that a certain percentage must not be given out without considering certain conditions. One of such conditions is that at least 10% must be reserved for his dependents.
Customary laws: Where a person who lived under customary laws and always expressed his desire to abide by customary practices of his people, he cannot validly distribute all his estate via will. Thus the customary law practiced in his locality will apply in the distribution of his estate. It does not matter whether he made a will immediately before his death.
Customs recognised by law: Some customary law practices have been upheld by the law court in the past and in recent times. For instance, the Igiogbe Customary Law practiced in Benin Kingdom has been given judicial backing. The Igiogbe practice states that the eldest son of a deceased man is entitled to keep the house the father lived in and was buried. The only condition here is for him to have performed the burial rites of his late father. That is, the first son of the family has right over that property which no one can contest. The deceased cannot by will give out that property to any other member of the family. This is a custom that has been incorporated into today’s law of inheritance.
Where a man dies intestate (without a will) though he might not have lived under the customary laws of his people, his estate will be distributed according to the customary laws of his locality. This applies when the relations of the deceased do not apply for Letters of Administration. Where the relatives of the deceased apply for Letters of Administration, the property will not be shared according to the customary laws of the people.
Having a Will has therefore moved from being a luxury to a necessity as we have elucidated in our article on IMPORTANCE OF HAVING A WILL.
The Customary laws practice with regards to inheritance remains applicable today despite the use of wills. However, for the customary laws to apply, it must not deprive any person who should ordinarily benefit from the estate of the deceased loved one on the basis of sex or other considerations.
For further insight, see our article on CUSTOMARY INHERITANCE IN NIGERIA: THE PLACE OF THE GIRL CHILD/WOMAN.