As an ordinary Nigerian, you most likely do not need to think about it anymore, you already know whose name to write as your heir after your death. You are always happy each time you find yourself in a situation requiring a full disclosure of your next-of-kin, like when supplying information to financial institutions and hospitals. As you readily make your choice, you feel that the person or persons you name as your next-of-kin would naturally benefit from your wealth or entitlement in the event of your demise. But there are questions: do you think by merely picking someone as your next-of-kin you have made that person a beneficiary to your wealth or entitlement(s) in the event of your death? What is the implication of making someone your next-of-kin? When you name a person Next-of-kin, how much authority are you giving to that person, what should you expect of him, what is he empowered to do?
WHO A NEXT-OF-KIN IS
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 see JOSEPH V. FAJEMILEHIN O. O. & ANOR (2012) LPELR-9849(CA) or secondly, the person who to be notified in case of any eventualities of life such as an accident, emergency or death. 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.
The first and second senses are straightforward and would hardly be an issue. Therefore little or no harm would be done at all if they are not discussed here. The problem however is the third sense of the term. Under what circumstance can a next-of-kin be an heir and in what circumstance can he not be?
NEXT-OF-KIN AS IT RELATES TO INHERITANCE
When a person dies leaving behind a will (testate), the matter of next-of-kin becomes superfluous. This is so 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.
Generally, the question as to who to inherit is determined by law, that is, customary law, or Islamic law or English Law or the Administration of Estates law (or equivalent legislation). And the law to be applicable in distributing the estate of the 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 effected 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.
Under English Law and the administration of estate laws of various state, 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
It is also settled that the surviving children take in equal shares, irrespective of their sex, and that the so called illegitimate children stand in equal pedestal with those born during the continuance of a statutory marriage, provided their paternity was acknowledged by their putative father. See section 42(2) of the 1999 constitution of the Federal Republic of Nigeria (as Amended) which prohibits discrimination based on the circumstance of one’s birth. See also the following cases: DURU v.DURU 2016) LPELR-40444(CA), Igbozuruike Vs. Onuador (2015) LPELR – 25530 (CA), Ukeje V Ukeje (2014) LPELR-
The parents of the deceased take 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. See Kekereogun & Ors v. Oshodi (1971) LPELR-1686(SC) subject however to contrary provisions under the administration of estate laws of various states.
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.
Therefore, under the Nigerian law of intestate succession, one cannot choose his heir under the pretext of next-of-kin; the law imposes heirs on him. For example it is the surviving spouse and children of an intestate who married under the Act that are his heirs. The intestate cannot therefore, by naming only one of them or any of his other blood relatives his next-of-kin, scheme them out of inheritance as the act of naming his next-of-kin does not amount to testamentary disposition.
In the light of what has so far been stated, 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. ‘Next-of-kin is not in any way entitled to inherit your estate if anything happens to you or automatically qualified to inherit your wealth or superior to the beneficiaries named in a Will or exempted from the legal processes and laws of inheritance
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. The typical Nigerian’s conception of the term, “next-of-kin” is therefore erroneous.
For Advert Inquiries Tele/+234 806 819 1709 E-mail: [email protected]