The Legal Significance of Choice of Next of Kin

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11th June 2013 THE LEGAL

SIGNIFICANCE AND THE
FALLACY OF CHOICE OF
NEXT OF KIN IN THE
NIGERIAN SOCIETY
The making of a Will does not sit well with an
average Nigerian mainly because he has little or
nothing to dispose o by way of Will. But despite
this, the ordinary Nigerian has a clear idea of
whom he wants to step into his shoes when he
eventually crosses the borderline of life to death.
So he is trigger happy each time he nds himself
in a situation requiring a full disclosure of his
next of kin, like when supplying information to
nancial institutions and hospitals. As he readily
makes his choice, he feels that the person or
persons he names as his next of kin would
naturally climb the saddle of ownership of his
estate in the event of his demise. But has he, by
mere picking and choosing his next of kin made
a valid testamentary disposition under the law?
Can a person, by his own freewill choose his next
of kin? How is the Nigerian Law of succession
positioned in this regard?
DEFINITION:
The term Next of kin has been dened as
follows:
"The term Next of kin is used with two

meanings; (1) nearest blood relations
according to law of consanguinity and (2) those
entitled to take under statutory distribution of
intestates estates, and term is not necessarily
conned to relatives by blood, but may include
a relationship existing by reason of marriage,
and may well embrace persons, who in natural
sense of word, and in contemplation of Roman
law, bear no relation of kinship at all."[1]
[http://www.blogger.com
/blogger.g?blogID=3704290753989024636#_ftn1]
A close look at this denition, in conjunction with

other attempts at situating the import of the
term, brings to fore three distinguishable
meanings:
1. The term may be used to refer to the closest

blood relatives of a person, simpliciter. Such
relatives are in no way entitled to inherit from the
person. For instance, a person who makes a valid
Will has next of kin, but his next of kin are not by
virtue of their position entitled to inherit from
him. This is so because once a person makes a
valid will, he exercises his right to choose the
beneciaries of his estate and the issue of
locating his next of kin for the purpose of
succession will not arise.
2. The term may also refer to persons who are

entrusted with decision making powers in times
of emergencies, where the person vesting them
with such powers is not readily available to make
such decisions himself. They may be required to
make medical decisions such as providing
information or consent for a person who is
incapacitated. They are in this sense bereft of
inheritance rights. They can be nominated and
they need not be relatives of the person
nominating them. Powers akin to this can be
conferred by a Lasting Power of Attorney. See for
instance, the Mental Capacity Act 2005 of the
UK.
3. In the third line of denition, the term, "next of

kin" refers to persons who are entitled to inherit
the estate of a deceased person in the event of
intestacy. Such persons must be related to the
intestate by blood or marriage. However, in the
quest to locate a persons next of kin, recourse is
had to the law and not to the persons choice or
discretion.
NEXT OF KIN FOR THE PURPOSE OF

SUCCESSION:
The question as to who is a persons next of kin,
for the purpose of succession is determined by
his personal law. This general rule is however
altered by the incidence of marriage. Thus, the
nature of marriage contracted by a deceased
person determines whether customary law,
English law or the Administration of Estates law
(or equivalent legislation) would apply upon
intestacy. The consequences of this position of
the law is that where a deceased contracted
marriage under the Marriage Act, customary law
is excluded, and succession to his estate will be
eected in accordance with either the English
law or the Administration of Estates Law (or
equivalent legislation), depending on the
jurisdiction. Section 49(5) of the Administration
of Estates law of Lagos State unequivocally
provides as follows:
"Where any person who is subject to customary

law contracts a marriage in accordance with
provisions of the Marriage Act and such person
dies intestate after the commencement of this
law leaving a widow or husband or any 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."[2] [http://www.blogger.com
The Administration of Estates Laws provide an

exhaustive hierarchy of persons who, depending
on some circumstances, may have benecial
interest in the estate of a person who dies
intestate, and each of these persons take in
order of priority as provided by the law. It is
these persons that qualify to be next of kin to an
intestate. It must however be stated that it is not
all relatives or kin of a deceased person that are
his next of kin as they do not all fall within the
same degree of kinship. Those who are nearest
to the deceased and are invariably entitled to
inherit his estate upon intestacy are as
enumerated below:
a. THE SURVIVING SPOUSE:

The surviving spouse, together with the issues of
the marriage stands at the apex of the hierarchy
of the beneciaries of the estate of a person who
dies intestate. The surviving spouse is entitled
absolutely to the personal chattels of the
deceased; whether or not the deceased is also
survived by other close relatives, and one-third
of the residuary estate.[3]
Personal chattels have been dened to include:
"...carriages, horses, stable furniture and

eects (not used for business purposes), motor
cars and accessories (not used for business
purposes), garden eects, domestic animals,
plates, plated articles, linen, china, glass,
books, pictures, prints, furniture, jewellery,
articles of household or personal use or
ornaments, musical and scientic instruments
and apparatus, wines, liquor and consumable
stores, but do not include any chattels used at
the death of the intestate for business purposes
nor money or securities for money."[4]
Residuary Estate, on the other hand, was dened

by the Supreme Court as follows:
"Residuary estate in cases of total intestacy

includes the entire estate of the intestate after
payment of funeral, testamentary and
Administration expenses, debts, and other
liabilities of the estate. The term residuary
estate is not used to indicate a distinction
between real and personal property."[5]
Although in the past, the surviving spouse was

never considered as kin of a deceased husband
or wife, but it appears now, from the provisions
of the Administration of Estates Laws, that in a
search for the next of kin to an intestate who was
married under the Act, one should not wander
far from the door of the surviving spouse.
b. THE ISSUES OF THE MARRIAGE:

The issue or issues of the marriage of an
intestate are entitled to two-third of the
residuary estate of their deceased parent. The
position of the law is well settled that it is the
spouse and issues of an intestate that inherit his
estate to the exclusion of every other person.[6]
In the case of Williams v. Ogundipe[7]
/blogger.g?blogID=3704290753989024636#_ftn7
] , the Court, while referring to the
Administration of estates Law of Lagos State,
stated thus:
"Section 49 of the same law sets out the tables

of succession to the real and personal property
of a deceased person who dies intestate. From
the deductive conclusion, it is clear that the
surviving spouse and children of a deceased
person take a priority and exclusive right to the
estate of the deceased." [8]
It is also now beyond all arguments that the

surviving issues 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. With
respect to this position, section 42(2) of the
1999 constitution (as Amended) comes to mind.
It provides that:
"No citizen of Nigeria shall be subjected to any

disability or deprivation merely by reason of the
circumstances of his birth."
It is therefore in the light of the above stated

constitutional provision that one would state,
with the greatest respect that the Court of
Appeal did not state the present position of the
law when it reasoned per Aboki JCA, that:
I am not unmindful of the decision in Alake v.

Pratt (1955) 15 WACA, 20 which approves the
custom of legitimation by acknowledgement of
paternity and placed illegitimate children in the
same position for inheritance as children
conceived in lawful wedlock. However, that
statement of the law has been qualied by the
decision in the case of Cole v. Akinyede (1960)
5 FSC 84, which held that the custom of
legitimation by acknowledgement can be
allowed by the court only in so far as it aected
illegitimate children not born during the
continuance of a statutory marriage."[9]
The Supreme Court, without drawing any

distinction between children born during the
continuance of a statutory marriage and those
who are not, upheld the present position of the
law in the case of Salubi v. Nwariaku,[10]
0] where it concluded that:
"It suces to hold that the court below was

right in holding that the trial court had
jurisdiction to entertain the claim before it and
that the two issues born out of wedlock are
entitled in equal shares with the two other
issues of the marriage of the deceased and the
widow." [11] [http://www.blogger.com
1]
c. PARENTS OF THE INTESTATE:

Where the deceased is survived by spouse and
issues, the parents of the deceased gets nothing
under the Administration of Estates Law of some
states.[12] [http://www.blogger.com
] The Administration of Estates Law of Delta
State however allows the parents of the
deceased one-fourth of the residual estate in
their life time, and thereafter to the issues of the
intestate.[13] [http://www.blogger.com
]
From the foregoing, it stands to reason and also

accords with the law to say that it is the
surviving spouse and children of an intestate
who married under the Act that are nearest to
him in the line of kinship and are therefore his
next of kin. 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.
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. The Administration of Estates
law, 2004, of Delta State is however dierent in
that the list of those entitled to inherit from an
intestate does not extend to brothers and sisters
of half blood, grandparents, aunties and uncles
but ends with the brothers and sisters of full
blood, and if they fail to take, the estate will then
be administered in accordance with customary
law.[14] [http://www.blogger.com
]
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 suce 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.
The typical Nigerian's conception of the term,

"next of kin" is muddled up to inculcate the
erroneous assumption of the exercise of
testamentary freedom by nominating his next of
kin. Under the Nigerian law of intestate
succession, one cannot choose his next of kin;
the law imposes them on him.
V.O. OBANYA ESQ.
[1] [http://www.blogger.com
/blogger.g?blogID=3704290753989024636#_ftnref1] Blacks Law
Dictionary, Sixth Edition, at P. 1044
/blogger.g?blogID=3704290753989024636#_ftnref2] See also
Section 3(2) of the Administration of Estates Law ,
2004, of Delta State; Section 3(2) Administration of
Estates Law of Abia State and the case of Obuzez V.
Obuzez (2007) 10 NWLR (Pt. 1043) 430
/blogger.g?blogID=3704290753989024636#_ftnref3] See Section 49
of the Administration of Estates Law, Lagos
/blogger.g?blogID=3704290753989024636#_ftnref4] See Section 2,
Administration of Estates Law, 2004, of Delta State and
Section 2(1) Administration of Estates Law, Lagos
/blogger.g?blogID=3704290753989024636#_ftnref5] See the case of
Salubi V. Nwariaku (2003) 7 NWLR, (Pt. 819) at P. 452,
Paras. D-E.
/blogger.g?blogID=3704290753989024636#_ftnref6] Specically,
Administration of Estates Law of Lagos State and that of
Old Bendel State which have been interpreted by the
court on several occasions
/blogger.g?blogID=3704290753989024636#_ftnref7] (2006) 11
NWLR, (Pt. 990) 157
/blogger.g?blogID=3704290753989024636#_ftnref8] At P. 175,
Paras. C.
/blogger.g?blogID=3704290753989024636#_ftnref9] Motoh V.
Motoh (2011) ALL FWLR, (Pt. 584) at P. 119, Paras. D-G
/blogger.g?blogID=3704290753989024636#_ftnref10] Supra, at P.
456, Para. H
/blogger.g?blogID=3704290753989024636#_ftnref11] Underlining
supplied by me. See also section 2(2) of the
Administration of Estates Law, 2004, of Delta State
/blogger.g?blogID=3704290753989024636#_ftnref12] See the
Administration of Estates Law of Lagos state and that of
the old Bendel state
/blogger.g?blogID=3704290753989024636#_ftnref13] See item
3(b)(i) of the second schedule to the Administration of
Estates Law, 2004, of Delta State
/blogger.g?blogID=3704290753989024636#_ftnref14] See Section
49(1) & item 6 of the Second Schedule of the
Administration of Estates Law, 2004 of Delta State
Posted 11th June 2013 by Victor Obanya
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The Legal Significance of Choice of Next of Kin

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Legallines TO LOCATE, ISO search

11th June 2013 THE LEGAL

"The term Next of kin is used with two

A close look at this denition, in conjunction with

1. The term may be used to refer to the closest

2. The term may also refer to persons who are

3. In the third line of denition, the term, "next of

NEXT OF KIN FOR THE PURPOSE OF

"Where any person who is subject to customary

The Administration of Estates Laws provide an

a. THE SURVIVING SPOUSE:

"...carriages, horses, stable furniture and

Residuary Estate, on the other hand, was dened

"Residuary estate in cases of total intestacy

Although in the past, the surviving spouse was

b. THE ISSUES OF THE MARRIAGE:

"Section 49 of the same law sets out the tables

It is also now beyond all arguments that the

"No citizen of Nigeria shall be subjected to any

It is therefore in the light of the above stated

I am not unmindful of the decision in Alake v.

The Supreme Court, without drawing any

"It suces to hold that the court below was

c. PARENTS OF THE INTESTATE:

From the foregoing, it stands to reason and also

The parents of the deceased take next after the

Where customary law is applicable, the next of

The typical Nigerian's conception of the term,

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