ADMINISTRATION OF ESTATE WHERE THERE IS ONLY A SURVIVING ADMINISTRATOR - A LEGAL DISCOURSE

THE ADMINISTRATION OF ESTATE OF A DECEASED WHERE THERE IS A SURVIVING ADMINISTRATOR – A LEGAL DISCOURSE

ISSUE FOR DETERMINATION

Whether surviving Administrator(s) is entitled to continue with the Administration of Estate of deceased person upon the death of his/her partner.

DEFINITION OF TERMS

Will: A will is an instrument that expresses the intention of the deceased stating the manner his estate would be administered upon his death.

Beneficiaries: The persons named in the Will or Letter of Administration to benefit in the estate of the deceased  

Testator: The person making the will.

Estate: The property that you own or have an interest in at the time of your death.

Executor: Person named in the will to be responsible for administering the estate of the deceased.

Reasons to Have a Will

There are several reasons why you should consider making a will.  They are, for example:

1. To distribute your property as you wish. 

Only by making a will can you select the individuals you wish to benefit and what each should get. 

2. To allow you to choose your own executor.

When you make a will you may appoint the executor of your choice.  If you die without a will, somebody must apply to the court to be appointed as an administrator.  The administrator’s job is to divide your property and assets among those who are entitled to it. The person appointed administrator is usually a member of your family, or if you have none, a close friend or even a creditor. However, this may not be the person you would have chosen. 
                          

3. To give you flexibility in carrying out your wishes.
A will gives you flexibility.  For example, you may use “trusts” to help manage the property that you leave your beneficiaries.  Also, it lets you set out all the powers needed by the executor to carry out your wishes.

4. To provide guardianship for your children

When you make a will you may choose the guardian for your children.  If you die without a will, the court will appoint a guardian for your children. The guardian will usually be a close relative but it may not be the person you would have selected.

5. To avoid delays and costsBy making a will and appointing your own executor, settling your estate should progress more quickly. Your family will not have to spend time applying to the court to appoint an administrator.  This will save your estate money as well. 

 WHO CAN & WHEN TO MAKE A WILL

Under the Law, any adult above the age of 18 years old can make a Will. Also, persons of unsound mind cannot make a Will. It is advisable that a person should make a Will as soon as he becomes an adult and has a regular income. This need becomes more important when an adult gets married. This is because once a person gets married; the customary laws which ordinarily may not be your intention would then apply.

DISTINCTION BETWEEN EXECUTOR AND AN ADMINISTRATOR
           
An executor is the person appointed, ordinarily by the testator by his will or codicil, to administer the testator’s property and to carry into effect the provisions of the will.

An executor may be appointed either:

i.          Expressly by the testator in the body of his will

ii.         By the exercise of a power of nominating an executor conferred by the testator by his will

iii.        by implication from the testator’s will when the executor is known as an executor according to the tenor. In other words where a testator fails to nominate a person in express terms to be his executor, but upon a reasonable construction of his will it appears that a particular person has been appointed to perform the essential duties of an executor such appointment is sufficient to constitute that person an executor.

DIFFERENT EXECUTORS FOR DIFFERENT PROPERTIES
A testator may appoint different executors for different parts of his estate; he may appoint certain persons executors of his property abroad or of his property in a particular country and others of his property in Nigeria. He may appoint different executors for real property while another for personal property.

CONDITIONAL AND SUBSTITUTED APPOINTMENTS

A testator may appoint his widow to be his executrix during her widowhood, or his son to be his executor upon attaining his majority. He may make the appointment conditional upon the happening of a certain event, he may provide for the determination of the appointment or the substitution of one executor for another upon the happening of a given event.

THE CHOICE OF EXECUTOR
No restriction whatsoever exists upon the choice of an executor. An alien may be appointed. A convicted criminal may be appointed but the fact that the executor is serving a prison sentence may make it impossible for him to administer the estate so that the court may grant administration to others under its discretionary powers.

ACCEPTANCE OF OFFICE
The most obvious method of accepting the office of executor is for the person appointed to obtain a grant of probate, although the executor may without applying for probate do such acts with reference to the testator’s estate as constitute an acceptance of the office.

EFFECT OF ACCEPTANCE
An executor cannot accept in part and refuse in part: he must accept or refuse the office as a whole or where the appointment is limited, to the full extent of the appointment. The acceptance of the executorship involves the acceptance of the trusts which the testator himself may have imposed upon his executors.

RENUNCIATION OF THE OFFICE OF EXECUTOR
A person appointed executor may decline by filing in court the application that he does not intend to act the executor of the testator although usually the testator consults the person before appointing him as executor

EXECUTOR’S ACTS BEFORE GRANT
The executor derives his title under the will and the testator’s property vests in him as from the date of death without any interval of time. The probate itself is a mere authentication of his title but if it affects the legal estate in land, it is also a document of title.

SOURCE OF ADMINISTRATOR’S TITLE:
The administrator derives his title entirely from the grant of letters of administration, and the deceased’s property does not vest in him until the grant, so he cannot make a lease or other disposition before the grant.  An administrator is a person appointed by a court of competent jurisdiction to administer the property of a deceased person.

The office of the administrator is said to be dative because it derives from such a grant whereas the office of executor derives from the will of the deceased person.

THE DOCTRINE OF RELATION BACK
In order to prevent injury being done to a deceased person’s estate without remedy, the courts have adopted the doctrine that upon the grant being made the administrator’s title relates back to the time of death. It is applicable against a person dealing wrongfully with the deceased’s real estate.

THE CHAIN OF REPRESENTATION - DEVOLUTION ON DEATH

An executorship cannot be assigned at common law, because it is an office of personal trust. It can only devolve by operation of law. Upon the death of one of the executors/ administrators, the office with its incidents , duties and powers, and the estate and interest in all the property vested in the executors by virtue of their office, devolve upon the survivor(s).

Upon the death of a sole executor, or of the last survivor of several executors, the office devolves upon the executor of the sole or last surviving executor who has proved the will and so long as the chain of representation is unbroken, the last executor in the chain is the executor of every preceding testator.

The Supreme Court in Yusuf v. Dada (1990) 4 N.W.L.R. (Part 146) 657 at 682 stated per Agbaje, J.S.C. as follows:

‘Where more than one executor or administrator is appointed the joint office is treated as that of an individual person. Each executor represents the estate for all purposes subject only to the statutory exceptions. They have a joint and entire interest in the estate (real and personal) of the testator or intestate, which is incapable of being divided; and in case of death such interest vests in the survivor without any new grant by the court.

Consequently, if one of two executors or administrators purports to grant or release his interest in the testator’s or intestate’s estate to the other, nothing passes; because each was possessed of the whole before. Similarly, the act of one in possessing himself of the effects is the act of the others, so as entitle them to a joint interest in possession and a joint right of action if needed.’

The above position of the law is inapplicable where the deceased dies intestate under the native laws and customs

It is trite law that on the death intestate of a husband, whether his widow can inherit his property will depend on the customary law of her intestate husband’s locality. Thus, where a person dies intestate leaving many heirs behind, his property will devolve on the heirs and will become a communal or family property of all the members of the family.

The major means through which individuals are differentiated and placed into a system of inheritance is through the form of marriage that they choose to adopt, be it a civil marriage, or under a customary or sharia system. It is of brief note that the form of marriage should have such a major impact on both the rights of the couple and of their children, given that marriage may not be viewed as a contract between two individuals within Nigerian societies. As will be described below, marriage should not be understood as an absolute marker of rights entitlement, but a prima face signal to the courts of the intended system of inheritance.

Individuals must make the choice to contract either a statutory, monogamous civil marriage, or a marriage under a customary or sharia system which is permissive of polygamy.  

Ordinarily, under Igbo customary marriage law a widow has no right to inherit her deceased husband’s estate but she can be granted the use of his land if she remains in the family after his death.

Thus, it was held in Madu v. Madu [2007] 14 N W L R (pt. 784) 335 S C that under a customary law marriage which is polygamous by nature and not monogamous, there cannot be an implied gift by the husband to the wife. Such grant is subject to her good behaviour, it cannot vest the estate in her.

In Nezianya & Azika v. Okagbue(1963) All N L R 352, it was held that a married woman had no right to succeed to the estate of her later husband under Onitsha customary law. It was immaterial that she had been in possession of the property without the prior consent of any member of her deceased husband’s family. The fact that she has been in possession for a long time without interference from the family members does not constitute a bar to the family’s right of ownership of the property.

In this latter situation, her long possession was not adverse to the family nor did it give her any right to alienate the property.

A widow has no right of ownership over any property of her deceased husband. It is immaterial whether she has surviving sons or not. The only property of her husband which she has right to keep after the husband’s death are outright gifts made by the husband in his lifetime.

 In Eze v. Okwo the husband was survived by three customary law widows but no issue. Before his death the deceased instructed his senior wife to administer his property and use the income there from to maintain herself and the other wives, and to continue staying in his compound with the hope that they might have issues for him. The senior wife attempted to carry out the wishes of her husband but was challenged by his nephew, the plaintiff in this case. He claimed not only that he was the rightful administrator of his uncle’s estate but also that the defendant should be expelled from her late husband’s compound. It was held that a widow can neither inherit her husband’s compound nor administer it. A widow reserves some rights in her husband’s estates. She has the legal right to retain the use and possession of the matrimonial home subject to good behaviours. She is also entitled to farm in her deceased husband’s farmland even if she has no surviving children

Coincidentally, under Yoruba customary law, separate houses or rooms allotted to the wives by their polygamist husband do not vest in the wives; as such allotments are not outright gifts. This is very similar to Igbo customary law. Thus, upon the death of the intestate husband, such houses or rooms become part of the real property of the deceased which will devolve on his family.

Moreover, where a husband in his will purports to vest his share of un-partitioned family property in his wife, it is not capable of devolving upon the widow and such property consists of rights which are purely communal and inalienable. And where such property is being distributed by the family members, the widow cannot successfully claim that she is entitled to the share which would have been her husband’s had he been alive. This is because the devolution of family property under customary law “follows the blood".

The rationale behind this rule is that family land must be kept intact and also the fact that the deceased intestate’s customary law wife is not regarded as a member of the “family” for this purpose. This is evidenced in the statement by Coker48 that: “…among the Yorubas of Nigeria the wives of a man also constitute part of his…property”.

In Suberu v Sunmonu (1957) 12 FSC 33 the question was which of the two parties – the material or paternal relation – should inherit the real estate. The court held that as the deceased’s son died intestate without issue, his share of the family house devolved upon his uterine brothers children. The court also declared thus: “it is a well settled ruled of native law and custom of the Yoruba people that a wife could not inherit her husband’s property.”

In Oshilaja v. Oshilaja the court held that in accordance with the decision of the Supreme Court in the Suberu’s case, the widow in the instant case could not inherit her deceased husband’s estate. And as the deceased intestate died without a child, the court held that the sons of his uterine sister (there being no surviving full blood or uterine brother) were entitled to share in the estate to the exclusion of his widow. The disintegration of the family property could not therefore be avoided if some part of the family land were inheritable by a widow as she could not possibly leave the land in her deceased husband’s family in the event of her remarriage. 

One common rule of customary law which is synonymous with all the traditional African societies is that in customary law if intestate succession, the widow has no place in the sense that she can never inherit from her husband on intestacy. It is remarkable to find such uniformity in the customary laws of so many people with different origin, histories and customs. This rule appears irrespective of the services the widow may have rendered to her deceased husband, or of her contributions, financially or otherwise to the accumulation of his property.

 This inconsiderable attitude towards the right to inheritance by the widow extends to the administration of the intestate estate. In the Igbo case of Ejiamaike v. Ejiamaike  Oputa J. held that

 ‘a widow of a deceased person had no right under Onitsha customary law to administer the estate of her late husband especially where there is an “okpala” (first male issue) of the deceased who was not a minor’. There is an application of the Igbo law in the decision in the Yoruba case of Aileru Kors v. Anibi where Jibowu J. held: “under native law and customs, widows cannot administer the estate of their husbands”.

It is interesting to note that in recent times, the courts have departed from the rule of customary law that a widow cannot inherit the estate of her deceased husband. Thus in Loye v Loye, the court drew attention to modern socio-economic changes in the relationship of husband and wife and held that:

…a widow has no right of inheritance to the estate of her deceased husband. However, this aspect of our customary law needs urgent reform because it is capable of working great hardship in modern times when wives make significant contributions to the wealth and properties of their husbands. Customary law bases the right of inheritance on “blood relationship”, for example, sons, daughters, brothers, sisters, or even parents of the deceased. But this principle of our customary law should be reformed so that “a widow” or “widower” on grounds of marriage or marital ties could claim a share in the estate of the deceased spouse. 

Ifeanyi Ogu Esq.