Question: Can a widower benefit from the wife’s will?
Prof Abugu Answer: The case mentioned in Lagos, where the husband said that I am the only husband that is a case of persons who have married under the marriage Act and not under native law and custom.
When you marry under the marriage Act, the rules of inheritance are well spelt out; the surviving spouse is the first beneficiary of the deceased. So if husband and wife and you have married under the Act, if the wife dies, the spouse is the first person before even the children. That is how it is under the marriage Act and under the administration of native law.
If you didn’t make a will and you marry under the English Act, the rules of native law and custom will not apply. What will take over indicating inheritance will be the administration of native law and under that law your spouse is the first person in line in benefiting from it.
But if the marriage is under native law and custom, if the woman has assets of her own, she is entitled to making a will for the disposal of her assets whether she has children for the man or not. She can always make a will in disposal of her assets.
Dr Mrs Cassidy Answer: When somebody is working they normally write next of kin, I think the next of kin as written down, whether at the ministry should be adhered to.
If the person dies who have life insurance, sometimes you see people put down the name of someone else and not their husband, their children, such will should subsist so that there will be peace and quiet at the demise of a person, the deceased family will be at peace if this aspect of our inheritance laws are adhered to.
In a situation where someone has an adopted child, Urhobo customary law says that such a child should be allowed to inherit, that is another aspect of our culture that we should look into, such a child because if the child has been legally adopted especially if the child’s name is in the will should be allowed to inherit what was accrued to him by the deceased.
I want to conclude that aspects of our laws in Urhobo that are repugnant should be changed for the better and will should espoused so that there could be peace.
Prof Abugu Answer: I want to clarify what Dr Mrs Cassidy said about next of kin. Legally next of kin does not confer right of inheritance. In law, next of kin means the person to be contacted in case of emergency that is what it simply means.
In your documentation in your office and they asked you who is your next of kin, it does mean that is the person that is going to inherit what is accrued to you in the case of death.
Even if that person is recognized by the institution and he receives the money, the money does not belong to that person; we must still go further to the will and if there is no will then native law and custom.
Obaro’s Question: This our culture that places premium on the first male child, when in the family the woman incidentally becomes a senior person, with this decided cases in Igbo and Yoruba land, is it because we have not gone to court because as it is even with this information from the supreme court, we still stick to the old rule of saying the woman cannot be the head of a family. Is it because it has not been tested, should we have such instances in our family, do go to court to seek interpretation of the law? In other words, the ruling of the supreme court on Igbo culture does it affect Urhobo as well or is it specific to Igbo?
Prof Abugu Answer: Well, like I said we need not make all the mistakes, from what the law has said as far as Yoruba native law and customs is concerned, they have said that the tradition that said the woman cannot be the head of the family on the ground of her sex, such a custom will be hacked down.
We also need to be very careful to the extent to which this decision can be impressed. In one forum I argued that following this provision to the latter it simply means that if the eldest child of a ruling king is a female and she survives the father, does she have the right to say that under native law and custom, she should not be discriminated against and she should be crowned the queen of the kingdom.
So at the end of the day we need to particularize some of these decisions within a particular tribe. But there are some who feel that the decision is of a constitutional nature which we should learn from and modify our laws to that extent.
So technically if you ask me, in Urhobo land, with the state of the law as decided by the court there is no reason why a woman cannot be the head of the family.
But even when you say that, you know that in Urhobo land if the headship of a family falls to a woman, it is also the woman who will say my younger brother is the man, go and deal with him.
Question: Culture is dynamic, why has Urhobo culture not reflected this modern development?
Prof Abugu Answer: Culture is dynamic like you said; for example the practice of Osu or Outcast in Igbo land, for years the superior court has held that the practice of Osu is unconstitutional, that you cannot label somebody an Osu and then everybody then ostracize that family but notwithstanding those decisions when you get to the ground there is Osu but gradually these things will change.
There are children now in Igbo land who will marry an Osu and say come off it we are in the US, we are not in Nigeria, you people can’t paint us with all of that, gradually the culture is being challenged and it is being reformed.
Obaro’s Question: When in a family the most senior person who is now the head of the family goes to sell the land of the family can such sale be set aside if the other members of the family go to court?
Prof Abugu Answer: Under the existing state of the law, the head of the family has no right to sell family land. What the law requires for sale of family land, there must be the head and principal members of the family; so when the head of family acts unilaterally and sells family land behind everybody’s back that sale can be set aside.
Israel from US’s Question: Whose responsibility is it to change culture, which Urhobo institution as it were is responsible for this change that we so desire?
Prof Abugu Answer: It is not one single person responsibility to change culture. Though there are areas where a particular clan or community can change things for example the tradition of marriages; several communities and several clans have come together to say look particularly in Igbo land, let us simplify the requirements and the procedures to make it easier for our daughters to get married. That is a collective way of changing some cultural practices but we cannot say it is the responsibility of this person or that person. It only comes by way of awareness, by way of seminars and webinar like this directing everybody as to doing what is right.
Dr Mrs Cassidy Answer: Our customary laws emanate from our culture and our culture is our way of life, the totality of everything we are; our language, our beliefs, our religions, norms and values and these are communicated to us or inherited, we don’t question them.
So in changing this part of our culture and inheritance, the kings, the ovies, they can begin to look at these aspects that are repugnant to natural justice and address those aspects.
Societies evolve and make progress, therefore customs and traditions which are part of our culture should not be static either; we must be able to review aspects of our culture that are inimical to social justice and equity in order to avoid acrimony that are tended to issues that borders on inheritance by tradition.
Joshua’s Question: What is the capacity of the woman to make a will and if the woman makes a will, can she will all her properties to her immediate family before she got married because she has no child for the husband and the husband is married to another woman that has children for him and she knowing full well that she might not benefit from that estate any longer. In most cases when a woman dies the husband rushes to collect everything that the woman has as a beneficiary to the woman’s estate?
Joshua’s Question: I have seen people make will and the will is registered with a bank where it is kept safe and because the bank has an administrative structure, a board of directors, even if the MD dies the will is still subsistent and any new MD can now execute the will unlike when you make a lawyer your executor, the lawyer might predeceased the testator in which case the execution of the will becomes a problem. In most cases I advise because I have been in the position to advice people on registering their will, that they should make a body corporate, a company and possibly an institution like banks to be the executor of their will.
Prof Abugu Answer: Whether a corporate body can be an executor or an administrator, yes they can. You can make a bank or a trust corporation your executor but that actually depends on the size of your estate. The banks for instance you have UBA Trustees, First Trustees, Royal Estate Trustees these are professional trust corporation you can give them your will.
Let me also point out the distinction, your giving your will to the bank does not amount to registration of that will, the only formal mechanism for the registration of that will is registering that will by deposition of that will at the probate registry. When you do so a copy will be lodged with the probate registry, customarily a lawyer will do three copies and the three copies will be sealed.
You deposit one at the probate registry and you will be given a receipt for it and a reference number. The other two copies, one you can then give to a trust corporation if you want the trust corporation to hold it, can you actually go to the bank, if you have a vault, a space in the bank and put it in the vault and then you can keep a copy.
Traditionally, you should have three copies, one for yourself to keep; one will be registered in the probate registry, it is when you lodge with the probate registry that you can get probate for the will. Now if you don’t lodge it in the probate registry and you simply go and keep it in a bank or give your solicitor and you keep a copy, with the letter of administration they will apply for and then they will have to prove at that point that it is your will. But when it is registered it is at the probate registry where the will will be read
Chief Goodie Ibru goodwill message: I congratulate the moderator Prof Eghagha and the Urhobo Rennaissance Society for organizing this webinar, this is a very important subject which concerns all of us because one day we will pass on to meet our maker, on our demise we might either make a will or die interstate and the choice of Prof Abugu is just apt because you cannot find a better person to address this important subject.
It is important to write a will as has been mentioned earlier on, the will can be contested by the children of the testator and this contest can tear the children apart.
Where there is no will and letter of administration has been applied for, again this can cause disaffection among the children because there may argument among the children as to who will apply for the letter of administration.
In a recent case in the Supreme Court, the Supreme Court ruled that a female child was qualified to benefit from the estate of her father and she should be included among those who are to administer the deceased estate; this judgment and ruling was reported at the Punch of Tuesday the 8th of September, 2020. This put the supreme court in head on collision with the Urhobo culture.
To avoid or minimize disputes among the children of the deceased person, it is advisable that in addition to making a will, one should make the quest of gifts to his or her children while he is alive.
I am happy that we are having a very successful webinar and I pray that future seminars on the subject will be successful because I believe there will be future webinars on this subject because the subject is so wide that I don’t think we will be able to cover all the grounds today.
Prof Ben. Aghajafor: In conclusion the dynamism in culture can be done through individualism and collectivism. Individuals can bring it up, traditional institutions like the ivies can bring it up and a host of us can bring it up through webinar like this can be an engine of change towards this direction in ensuring that we change with time.
It requires advocacy, it requires creating awareness among our people as to where we should be with our female children. Some of us have only female children, we don’t have male children and then their future is jeopardized by the stories they hear through our inheritance lost.
We must also bear in mind what everyone must do, is to ensure that while we are able bodies living human beings a will must be written. It is not a taboo that you are going to die.
I have seen people who have planned their death, how they should be celebrated in death for example Gani Fawehmi, he chose his cloth in death, and the venue where his corpse was taken to; so we should plan this ahead because we have problems already.
Our lands have been sold to all kinds of human beings. I was surprised to find in so many places some foreign, non-indigenous citizens owning properties there and they are contesting ownership of the land with us and the case of Uwherun is not farfetched.
And this part of inheritance, as we are selling our lands, we are selling our ancestral homes, and sooner than later we need to have cemetery, cemetery is not common in Urhobo land, it is a sign for a big man to be buried in his house or a man that lived well should be buried in his house.
The head and the principal members of family should be involved in the sale of land, it should be enforced, it should be encouraged, it should be canvassed for so that we can have peace.
A number of times when people pass on, there is acrimony and all kinds of things that takes place in the family.
So I want to conclude that this webinar can be put together and be circulated or shared for others to benefit from it in the future. I greet you all.