THE LEGAL FRAMEWORK GOVERNING INHERITANCE IN NIGERIA
In Nigeria, the law regarding inheritance is governed by a complex framework of statutory
laws, customary laws, and Islamic or Sharia law. These rules depend on factors such as the
deceased's religion, ethnicity, and whether or not they left a valid will.
Under statutory law, the Wills Act 1837(being a pre-1900 English statute of general
application) as well as the Wills Laws of the various states govern the making and validity of
wills in regards to inheritance in Nigeria. A testator (the person making the will) must be of
sound mind and comply with the requisite formalities which is that it must be in writing, there
must be a signature, and attestation by witnesses1. The position of the law is that where a gift is
given in a will to the children of the testator by the testator, only legitimate children are entitled
to that will (See Hill v Crook). Furthermore, where a child of a testator, to whom property is
given by will, dies in the lifetime of the testator, the gift of the will does not lapse (See Section
33 of the Wills Act). It will rather pass on to any relatives of the deceased child. This principle,
however doesn’t apply to a class of the children of the testator but underscores the extent to
which inheritance under the Wills Act benefits a child of the testator.
Still on statutory law, where a deceased dies intestate i.e, without a will, the position of the
law however varies from state to state. In Lagos state, Section 49 of the Administration of
Estates Law of Lagos state grants the residuary estate of the deceased spouse to the surviving
spouse absolutely where there is no issue and no relative of the deceased spouse. Where there is
issue however, the survive spouse is entitled to personal chattels only. In Edo state, Section 20
of the Administration of Estates Law, Laws of Edo State vests the assets of a deceased spouse in
the Chief Judge of Edo state until an authorized person applies to the Probate Registry and
obtains a letter of administration in respect to those assets. In the Northern states which governs
the distribution of intestate estates.
Under customary law, it is possible for a deceased to have a written Will and therefore die
testate. This will won’t be recognized under the Will Act but may be treated as an English Will
(See Apatira v Akenke). In most cases, “wills” are usually oral. Under Ibo customary law, it is
known as Ike Ipe. Under this law, a testator declares the beneficiary a title to the “will” in front
of disinterested witnesses. In Maliki law, called Wassiyah, it’s also the same except that the
testator can only bequeath one-third of his estate to other than those who would traditionally be
his heirs.
Where a deceased dies intestate under customary law, the principles completely differ. For
instance, under Yoruba customary law, the property is under the control of the eldest survivi2ng
son of the family and all children, including children of the customary law marriage and those
legitimated by customary law, all share the property equally, irrespective of age or sex (See
Salami v Salami). The two distribution systems recognized by Yoruba customary law are Idi Igi
(per stripes) and Ori-ojori (per capita). The former is equally among mothers while the latter is
equally among children (See Dawodu v Danmole).
Under Ibo customary law, property inheritance is solely in the hands of the eldest son and
other sons of the deceased. Women are completely excluded, whether the property is distributed
1
Section 4, Wills Law,Cap, W2, Laws of Lagos State,2004
per capita or per stripes. In fact in Nezianya v Okagbue, the Supreme Court upheld the Onitsha
customary law which excluded widows from inheriting their husband’s property.
Under Islamic or Maliki law, which is applicable in Muslim-majority northern states,
inheritance rules are derived from the Quran and Hadith. Fractions of the deceased’s estate are
usually shared in accordance to Sharia law. All male children, however must typically receive
twice the share of female heirs (See Quran 4:11). This is called Mirath. Islamic law grants the
widow of the deceased one-fourth of the deceased’s estate where there are no children and one-
eighth where there are children. The position is however different for men as a widower gets half
of the wife’s (who is deceased) property where there are no children and one-fourth where there
are children.
1
Section 4, Wills Law,Cap, W2, Laws of Lagos State,2004
