(Question posed by Engr. Festus Ani)
INTRODUCTION:
The meaning and the legal implication of the term “next of kin” have been constantly misunderstood by the ordinary public. It appears, though erroneously, that many people think that once you are appointed the next of kin of a person, it automatically gives you the right to inherit the person’s estate upon his demise. In fact, many people think that, a next of kin gives an exclusive right over a person’s property.
The above erroneous belief and understanding of the term next of Kin has made many people to shy away from the need to make a Will. This is because, they think appointing a Next of Kin, is a way of naming your beneficiary. However, the above assumption is not in conformity with the law. It must be noted that, ignorance of the law is not an excuse.
WHAT THEN IS THE MEANING OF THE TERM “NEXT OF KIN”?
The term, next of Kin has been described as the nearest blood relative of a person. See JOSEPH v FAJEMILEHIN O.O & Anor (2012) LPELR-9849(CA). The term can also refer to a person who can be contacted or notified in cases of emergencies or eventualities. For instance, one of the forms that is usually filled while on transit, requires the information of next of kin. This is needed in case of any accident. In other words, where there is an accident involving that person, his next of kin shall be notified or informed.
Also, the term is constantly put into use by hospitals. In this case, next of kin means a person who can make medical decisions for a person who is incapacitated or unable to do so, during emergencies.
The term is also frequently used in financial documents by banks and other financial institutions. In this instance, next of kin means a person who can ensure that the proper steps are taken towards the recovery of the money held at the bank, at the demise of the owner. In other words, being a next of kin of a person, as regards his money in the bank, does not give a right to inherit such money, either partly or as a whole.
WHAT IS THE LEGAL IMPLICATION OF THE TERM NEXT OF KIN AS IT RELATES TO THE LAW OF SUCCESSION?
It must be noted that appointment of a next of Kin is not a substitute to the making of a valid WILL. The reason is because, when a person dies testate (that is, the person made a valid Will), the matter of next of kin is of no relevance. The estate of a deceased person who dies testate is distributed strictly according to the Will. Thus, his next of kin will only be entiled to his estate, if the WILL says so.
On the other hand, in a situation where the deceased died intestate (that is, without making a valid Will), the question of the distribution of his estate is governed by the law. The customary law/Islamic law or the Administration of Estate Law will apply depending on the kind of marriage contracted by the deceased. In other words, if the deceased contracted a statutory marriage (popularly known as court marriage), the distribution of his estate shall be governed by either the English Law or the Administration of Estate Law. See OBUZEZ V OBUZEZ (2007) 10 NWLR (Pt.1043) 430. It must be noted that the Administration of Estate Law provides for the order of inheritance which must be complied with strictly and a next of kin, is not among the categories of those entitled to inheritance in this instance.
In other words, Succession is regulated by law. It is only those entitled by law to inherit a deceased person’s estate that can do so. A next of Kin is not one of such persons. However, this is without prejudice to his right to inherit on a personal ground. Thus, if the person so named as a next of kin is the son of the deceased, he is entitled to inherit, not as a next of kin, but because he is the legitimate son of the deceased. Also, if the person so named as a next of kin, is also named in a valid Will made by the deceased, he is entitled to an inheritance not because he is a next of kin, rather, because, he is named in the WILL.
CONCLUSION
A next of kin, who is usually a blood relative, though not always, has no legal right of inheritance by virtue of his status as a next of kin simpliciter. However, it must be noted that the appointment of a next of kin is not a means or method of naming an heir. A next of Kin is not recognised as an heir under the Nigerian law of succession.
Therefore, next of kin, stricto sensu, does not by any stretch of imagination, entitle the person so named an automatic right of inheritance. If the person so named as a next of kin is not entitled either by the WILL or by other laws of inheritance, to inherit, he cannot be conferred with the right of inheritance by the mere fact that he is named as a next of kin.
It is hereby submitted that when it comes to the law of succession, the term next of kin has no legal implication. It therefore does not confer the right of inheritance. Thus, it is erroneous and unlawful for anyone to claim any inheritance on the singularly reason that he is named as a next of kin. Such claims have no legal bases and are unfounded.
(Copied)
With all due respect I don’t have time to write much now. But the truism is that laws are based on places/ countries/ principalities. Nations and entities. All the words/ names and status of people depends on those too. I think all the answers to this question has been answered already. It all depends on places and what one means by the words in question, what next of king translates to in a local language: for example Nenwe! When that translation is properly established then Nenwe’s local laws take precedence over any Outside laws, say, Aninri, State and Nigeria. Nigeria is not like America that has one Central Western Traditomsl legal tradition. But even that, some states have certain laws that are peculiar to it. There are Federal laws, state laws. But no person will use any external law to come and try to inherit property of a man who dies and the next relative person alive to take over the man’s Oku. For example a living Nenwe person writes a Will that empowers a Yoruba person to come and own his Oku against his Anwuhu achiru Oku! That cannot happen. But let people trained in Nigerian laws tell us what Nigerian Laws say about that. But are Wills capable of making a person to inherit something a next of king would think he ought to have possibly yes. But all depends on local traditions and closeness of people in the area. Next of king is not an automatic basis for inheritance. Let Nigerian trained lawyers tell us what the law says on the matter but the posted piece seems to have said all that is ordinarily needed to be said on the subject.
ReplyDeleteJerry.
Thank you @Festus ANI for bringing up this topic.
ReplyDeleteI agree that the article you presented answered most of the questions raised.
But while waiting for the lawyers to speak, I think that if a valid Will of a Nenwe man wills any or all of his properties to a Yoruba man, the man's will should be respected while his Nenwe relations have a right to challenge the Will in a court of competent jurisdiction.
I do believe, however. that there are some other matters arising from this topic that may help elucidate some issues.
I have a personal experience related to this issue and I would like to know the position of the law in this circumstance.
A close blood relation took a loan of three million naira from a commercial bank in Nigeria and dropped my name as next of kin. I am mneither aware of the loan nor that my name and phone number were mentioned in the loan documents.
Two years later, when the bank came hard on account of default, the person informed me (via WhatsApp) that the loan document bears my name as next of kin and that the bank was threatening to call me.
Mj
No one has called me yet, but in case they do, is anything legally binding on me since neither the bank nor the one who took the loan contacted me or sought my consent when the loan transaction was contracted? I did not sign any document as a guarantor.
Barristers @Dr Bar NICK UDEH @Ike Ekene I hope you are reading.
I am
Dr. Leo Chukwuali
I am not a lawyer though, but as a student here, may I ask; is the man who named you as next of kin dead? Did he not present guarantor(s) to the bank?
DeleteIf he is still alive and has guarantors against that loan, from my layman's view, his next of kin has no case to answer. The bank knows the law.
I repeat, I am not a lawyer, I think the next of kin comes in when the direct person is no more or highly incapacitated more especially mentally.
Silas Nwaenya (prof)
Although there are those who do not face real bones of matters but are subjective when one criticized the Nigerian system but truth has to be told. All laws are local all over the world. Which is why in America for example, in order for a trained Attorney to practice law in any of the fifty states he/ she must pass and be admitted to the Bar of that state. No one arrogates him/ herself to even giving legal advise in a state he/she was not authorized to practice law talkless in a complete foreign country. It is not the case that on paper the Yoruba man will not initially try to take legal action in the so-called court of competent jurisdiction but just on a face value I can say that he will not be successful on his case/ fight: not that the Will shouldn’t have given him the right of ownership but because of the merits of Nenwe’s own laws of inheritance. And many other legal bottlenecks the case will run into against the Yoruba man. Just like all contracts that was executed on faulty basis/ laws/ reasons does not stand. If the man Wills properties that were jointly owned based on Nenwe tradition it will mean the man Willed properties jointly owned to someone before he died. However, I said that since Nigerian everything is always different, let Nigerian trained lawyers come out here and give the topic their arguments. What can be more far reaching than that? We have tons of Nigerian lawyers in this forum but as I said yesterday everything is always wrapped in secrecy. Let a Nigerian trained lawyer come out here, identify himself and give us his her legal spins on the topic.
ReplyDeleteJerry. (Ph.D)
As Prof Sai said and talking from a lay mans point of view and experience of working in the court room for many years: I suppose the bank will go first to the collateral,then the guarantors.You may be informed and information sort of he is no where to be found.
ReplyDeleteOr if you may wish to clarify or offset the debts before auctions
Charlie.mbc@gmail.com
You are very correct, Sir. And so are many others that have commented so far. The subject on ground is one that most of us here, not just lawyers, have some kind of general knowledge about because of its nature and recurrence.
ReplyDeleteUnder the Nigerian Law, “next-of-kin" is, at best, the first contact point should anything happen to the individual in question. They can make decisions for the individual who have chosen them as such only in times of emergency or where that individual is not available. A next of kin may furnish necessary information about the deceased or injured person's identity or make some other medical-related decisions.
Choosing a person as your next-of-kin when opening a bank (or other allied or related) accounts does not automatically place on such person to inherit one's wealth on demise, and vice versa.
The position under the succession laws in Nigeria is that the beneficiaries of a deceased person's inheritance will be determined by whether he died testate (having made a Will) or intestate (having not made a Will). If he died testate, his will will be followed to the last letter to determine who benefits therefrom. But if he died intestate, it will be a different matter entirely, that is to say, in accordance with the law. Here, the law in question would be either customary law, Islamic law, English Law or the Administration of Estates law. The applicable law in this situation will be determined by the kind of marriage contracted by the deceased during his lifetime. If he contracted statutory marriage, the beneficiaries will be determined in accordance with either the English law or the Administration of Estates Law, which basically, states the surviving spouse and the children of the deceased as the beneficiaries; then the parents of the deceased comes after the surviving spouse and children, followed by full blooded brothers and sisters, brothers and sisters of half blood, grandparents, aunties and uncles and a blood relation to the parents of the deceased, etc.
If the deceased contracted a customary marriage, then customary law will be applied to ascertain the beneficiaries. Thus, the beneficiaries will be those who are under native law and custom entitled to inherit the Properties of the deceased.
For Muslims, Islamic law is applied to determine the beneficiaries.
Barrister Ekene
You did great brother. You have expanded and explained the grey areas of the main paper. I appreciate the richness and simplicity of your presentation.
ReplyDeleteThe Technical areas will definitely get more light with Judicial authorities to drive home the points you made.
The current trends of appallete Courts, including Supreme Court decisions on paternity, inheritance etc are adversely eroding whatever is left of Igbo and Nenwe Customs and tradition on succession etc.
I was tempted to fully respond with Judicial authorities when I read Oga Jerry put up a line like... _"... For example Nenwe! When that translation _ (of Next of Kin) _is properly established then Nenwe's local laws take precedence over any Outside Laws ..... To me, this assertion makes it imperative that the call for a Lawyer's legal opinion, be answered with contemporary Supreme Court positions on Statutes over customs and vice versa.
I will fully respond. The main paper's title is achieving its purpose.
Nicholas (Barrister)
In the face of these laws, families continues to challenge wills, next of kins declarations by the deceased.
ReplyDeleteCBN had had issues with relations of deceased staff such that staff are required to declare percentage(s) of benefits as they would want for their relations receive, not following the named next of kin and this is reviewed periodically. I think many organizations apply this procedure.
Ogbuevi