LIMITATIONS TO TESTAMENTARY FREEDOM IN NIGERIA #2
CUSTOMARY LAW LIMITATION
Customary law is generally a make-up of rules and traditions peculiar to a people that are accepted as binding upon them.
As discussed earlier, customary law puts certain restrictions on the testator’s right to share his properties to whomever he wishes. It should be noted however that Customary law does not prohibit the making of Wills, it merely restricts testamentary freedom with regards to a particular property that is subject to customary law; it is argued that some properties are sacred by Customary Law and as such cannot be disposed of by the Testator however he wishes.
This principle is reflected in section 3(1) of the Wills Law of the former Western Region (comprising of the former Western Region except for Oyo and Lagos), it reads as follows:
“Subject to any Customary Law relating thereto, it shall be lawful for
every person to demise, bequeath or dispose of, by his will executed in
a manner hereinafter required all real and personal estate which he
shall be entitled to, either in law or in equity, at the time of his death
and which if not so devised, bequeathed and disposed of would
devolve upon the heir at law of him, or if he became entitled by descent…”.
A similar provision is expressed in S.1(1) Wills Law of Lagos State. It simply provides that a testator can dispose of any or all of his property by Will except a property that he has no power to give whether by Will or by custom. This means that a testator cannot give by Will a property that he does not own, or owns jointly with another or any of his properties that should be inherited by another according to his native law and custom. Thus in the case of OKE V OKE, where a man devised a house built on a land he inherited from one of his wives to another, the court held that since the land was a family property allocated to his wife, she could not legally pass it on to her husband and neither could he pass same to another. The gift was held to be in contravention of the Urhobo and Itsekiri custom that prohibits a wife from gifting family property by Will.
In the popular case of IDEHEN V IDEHEN, where a man from Edo state, subject to the Bini Customary law, made a will giving the house he lived in (Igi-Ogbe) to a person other than his eldest surviving son, the Supreme Court voided the bequest, awarding the Igi-Ogbe to the rightful heir as is according to Bini native law and custom. Let us be reminded of the fact that the restriction on the testator’s right of bequest is placed on that particular property that is subject to customary law and not on the right of the individual to make a will. Thus every other gift made in the Will shall remain valid except the portion that contradicts the native law and custom of the testator.
The Question on whether or not Customary Law restrictions are absolute was answered in the case of Lawal-Osula V Lawal-Osula, where the Testator included a clause to oust the application of his native law and custom to his testamentary freedom:
“it is my will that the native law and custom of Benin shall not apply to alter or modify this will”
the Supreme Court held that the customary law restriction is so absolute that a Testator cannot seek to exclude it. Basically, there is no way to avoid it, every property subject to customary law must be given to its rightful heirs as dictated by the Testator’s custom.
States with Customary law restrictions include Lagos, Abia, Kaduna, Jigawa, Plateau, Kwara, Bauchi, States of old western Nigeria (Delta, Oyo, Ogun, Osun, Ekiti, Edo State); all other States of the Federation operates under the Wills Act 1837.
When making a will, bear in mind the position of your native law and custom regarding your properties and the various beneficiaries entitled to them, provided such custom does not go against natural justice and equity or does not contravene the 1999 Constitution (as amended). Considering this will go a long way to avoid any challenge to your Will.
Have you come across other customary restrictions on inheritance? Share with us!
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