Writing a Will and Inheritance under the Igbo Native Law and Custom – By Barr. Fidelis Anayo Akonobi

The Igbos as people is uniquely and naturally endowed with commercial acumen which is almost invariably harnessed in their trades and converted into gains or profits. This character trait is inherent in most Igbo stock and this is why there is a notorious saying that “ndi igbo anaghi azu ahia uru n’adighi” meaning that no Igbo person engages in any business which offers no gain or profit prospects. This divine instinct has propelled the Igbos to scatter across the globe. In fact, it is widely believed that there is no part of the world that you will not find an Igbo person. Aside from the government that regulates the overall economy, the Igbos functionally controls the commercial activities in Nigeria. They have also excelled in various other spheres both locally and internationally. This has culminated in the Igbos being widely regarded as a prosperous race.
Many Igbo men and women live in opulence with a lot of money and property and this presupposes that upon their death, there is always a legacy to bequeath to those that survive them. Unfortunately, most Igbos are reluctant to put down in written form when they are alive how they wish their properties to be distributed to those that survive them after their death. They do not consider it serious or important. They see it as something that reminds them of death. They deliberately forget that death is sure. In the Bible, it is written in the Book of Hebrews 9:27 that it is appointed unto men to die once and after that judgment by God. To many, the thought of death is unimaginable and unacceptable. That is why they are imbued with the acute misconception of regarding death as meant for others and not them. It is for that same reason that they may well be above 70years, possessing a lot of properties but still ignore the issue of drafting a will. Some even wait until they see death approaching on their sick bed before hurriedly writing their will and at that point in time, some of them may have lost the capacity to reason properly. The sooner they realize that death is a natural and divine appointment which all must keep and not wish away, the better for them.
A will has been defined as a disposition or declaration by which the person making it (the testator) provides for the distribution or administration of his property after his death. A document is not a will unless it is testamentary that is unless it speaks from death. The concept of a will is not altogether strange to the Igbos. “Ike Ekpe” is an oral or sometimes a written declaration of wishes of a man to be implemented after his death by those he leaves behind. Most legatees hold such declarations sacrosanct and strive to implement strictly the wishes of the dead man because it is widely believed that if they deviate, the spirit of the dead will haunt them. However, some do not feel bound or obligated to respect the wishes of the dead, they often say “onye nwuru anwu kee epee, ndi di ndu ekegharia ya” meaning that a dead man may say his wish before he dies but those alive can change it.
In order for a will to be valid, it must be made by a person who is 18 years and above, and made voluntarily without any pressure from any other person. The maker of a will must at the time he is making it be of sound mind. This means that he must be fully aware of the nature of the document he has made and signed, and aware of all his property as well as the identity of the people who may inherit them. A will must also be in writing, signed by the maker in the presence of two witnesses. The two witnesses must also sign in the presence of the person making the will. A will has other legal niceties and technicalities which we may not go into here for reason of brevity.
Certainly, a will can solve problems. Its importance cannot be ignored. If a man makes a will it means that he has while alive excused his heirs from all those rules of inheritance under his native law and custom. The Igbo custom unlike the Yorubas disinherits female children in relation to landed property and places undue importance or glorifies the head of the family such that he owns everything leaving the others to inherit virtually nothing, Reliance on the ‘Umunna’ (Kinsmen) to settle disagreements arising from inheritance issues may be problematic. Some Umunnas may be corrupt or dubious or may be influenced by some inheritors against the others. This is why it is appropriate for a man to distribute his property to his heirs according to his wishes as stipulated in his will. The acrimony and upheaval which may erupt in the course of distribution of a man’s wealth between his loved ones or family members after his death may be avoided by the presence of a will.
In a society like ours where poverty is prevalent and social security is absent ferocious struggle over inheritance can produce undesirable and sometimes a bizarre situation. In some cases, family members fight over the property of a dead man even before he is buried. Let’s take an example of a man with a lot of possessions who had many wives and concubines and also had so many children; in other words, he had many heirs but died without making a will. Certainly in that family you will find all manner of persons with all shades of character and personality. The weak and strong ones, the wicked and the kind, the greedy and benevolent will co-habit as brothers and sisters. The man is no longer alive to wield the big stick to protect the weak from the strong, or the kind from the greedy and avaricious ones. The resultant battle for the man’s property may in some cases be fatal or murderous. However, this situation is avoidable if the man had written his will when he was alive. He would have settled those issues according to his wishes.
Even in a monogamous family set up, this cacophonous situation can also play out. We have handled a case where a son contested the property of his deceased father with his own mother. Siblings are set against each other fighting over property of a deceased person who would have without stress settled those issues before dying. Sometimes some of those properties are allowed to rot away owing to one Court injunction or the other.
It is the law that when a man dies without making a will, his property becomes a family property. The Supreme Court of Nigeria in the case of Mohammed V Klargester Nigeria Ltd. (2002) 14 NWLR part 787 Page 335 at pages 360 – 362, held that where a person died, without making a will (intestate) leaving many heirs behind, his property will devolve on the heirs and will be become a communal or family property of all members of the family. The Court also held that in a situation like this no inheritor can sell or convey such property without the consent or ratification of the other co-heirs. That means that whoever buys such property from one or more members of the family without concurrence of the other members has bought nothing. It is a common phenomenon for one or more family members who feel that they are stronger or better positioned in the family to sell such property to a buyer without the concurrence of other members of the family in reckless disregard of whatever maybe the consequence.
The brazen injustice meted to widows in Igbo land especially the illiterate ones and those from rural areas cannot escape our comment. It is a common occurrence for relations of a deceased man under variegated guises to dispossess or disinherit his wife and children. No man will ever desire his wife and children to suffer when he had enough to take care of them. Purposefully, a will may protect a man’s wife and children from meddlesome interlopers upon his death.
A will also excludes the rules of inheritance according to the law – The Administration of Estates Law. One important disadvantage of one dying without making a will is that his assets will be distributed according to the law and not according to his wishes. Such man’s property in practical terms vest in the state and his heirs must apply to the High Court of that state for grant of letter of administration upon satisfaction of certain conditions which may be cumbersome, time wasting and expensive. Applicants for Letter of administration are required by law to provide a bond or sure-tee which can be avoided if the man made a will. Such application may open up a can of worms as the room is wide open for claims and counterclaims over the deceased property. Those who he would even never intended to inherit his property even his enemies may enjoy his property at the detriment of his preferred heirs.
After a will is written, it is very important that the maker should communicate the existence and the location of the will to his trusted loved ones. If not, there is no way his heirs will know that he made a will. He may allow the Solicitor, who prepared the will for him to keep it, or he can keep it in the bank paying little charge or he may choose to store it in the Probate Registry of State High Courts and obtains Certificate of deposit. The most important thing is that he should let his own people know that he made a will and also where they can locate it after he is gone.
A will when made can be reviewed or amended at any time before the death of the maker when the need arises. Some of the situation that may warrant a review includes marriage, divorce and having another child. In such a situation it may be reviewed or amended by a means of a codicil which is a miniature will or an entirely a new will may be drafted if the change is a major one.
In conclusion, it is advisable for a man to conclude and settle matters concerning his sweat, or give certain directives through making a will before he closes his eyes. He ought not to leave room for people who desire to reap where they did not sow to come in. As for death, it is an appointment everyone must keep. In so far as a man has property to be inherited, he should not put off writing his will because the time death will knock at his door is what he does not know.

By: Anayo Fidelis Akonobi
Barrister & Solicitor,
Supreme Court of Nigeria

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