WHO IS ENTITLED TO THE LETTER OF ADMINISTRATION OF ESTATE IN NIGERIA

There are basically three systems of laws governing intestate succession in Nigeria. These are:

                                i.                        Common Law,

                              ii.                        Laws of Administration of Estate in various States; and

                            iii.                        Customary Laws

The factor, which determines which system is to apply in every case, is the type of marriage contracted by the deceased person. Where a person who contracted a statutory marriage dies intestate (without making a Will), his real and personal estate will be distributed according to the provisions of any local enactment relating to administration of estate, and where none exist, the common law intestacy rules will apply. See Zaidan v. Mohsons [1973] All N.L.R. 86.

Thus, having regard to the fact that the deceased contracted marriage under the Marriage Act, the law which governs his intestate succession is the Administration of Estate Laws of the State which he was residing when he died intestate.

The law governing intestate succession in Lagos State is Section 36 (1) of the Old Marriage Act known as Marriage Ordinance which  was applicable in Lagos, when it was a British Colony and after Nigeria got its  independence from the British and subsequently when Lagos was made  a Federal territory. The said Section 36 (1) provides that:

“where any person who is subject to customary law contracts a Marriage in accordance with the provisions of the Marriage Ordinance and such person dies intestate after the commencement of this law leaving a widow or husband or any issue of such marriage any property of which the intestate might have disposed by will shall be distributed in accordance with the provisions of this law, any customary law to the contrary notwithstanding”.

However, after the creation of Lagos State, the Lagos State Government repealed or omitted the Section 36 (1) supra vide Section 1 of the Lagos State (Applicable Laws) Amendment Edict (1972) and adopted the Administration of Estate Laws of Western Region which is the law governing the estate of a deceased person who died intestate in the States which made up the old western region.

Nevertheless, the provisions of the Administration of Estate Laws in Lagos State and other Western States on intestate succession as provided in Section 49 (5) are similar to the repealed Section 36 (1) of the Marriage Act.

In Salubi v. Nwariaku (2003) 7 NWLR (Pt. 819) 426 at 453, Paras. F- H Ayoola JSC succinctly brought out the difference between Section 36 of the Marriage Act and Section 49 (5) of the Administration of Estate Laws, thus:

The only difference in the two provisions is that while section 36 (1) of the Marriage Act incorporated English law (fixed at the date of the enactment 1914) into our laws of intestate succession by reference, the later statute has directly and not by reference substantially incorporated the contents of the then current English law on the subject in its provisions with the consequence that it was not necessary to search for what the English law on the matter was.

The source of section 49 (5) was itself Cap. 115 of the Laws of the Federation and Lagos, 1958 modified to signify the end of incorporation of English law by reference. The provisions of section 49 (5) of the Administration of Estates Law, particularly in the portion rendered in italics in the quotation above, leave no room for any doubt that the estate in this case fell to be distributed in accordance with the "provisions of this Law", that is, the Administration of Estates Law and not English law or customary law.
It is not necessary to embark on any further analysis of the reasoning of the court below that led to the conclusion that section 39(1) of the Marriage Ordinance applied. It suffices to say that it proceeded on erroneous premises in material respects. In the later case of Obusez v. Obusez (2001) 15 NWLR (Pt. 736) 377; (2001) FWLR (Pt. 73) 25 the court of Appeal [Oguntade, Aderemi and Chukwuma-EnehJJ.C.A.] departed from the decision of the Court [Akpabio, Akintan and Ige, JJ.C.A.] in the present case. I am of the opinion that the court below was in error when it held that the applicable law governing the distribution of the estate is as prescribed in section 36 of the Marriage Act even though that error was not of significant consequence to the method of distribution of the estate. The applicable enactment is section 49(1) of the Administration of Estates Law, Laws of Bendel State. The court below should have made an order in terms that the estate of the deceased stood to be distributed to all the beneficiaries of the estate in accordance with that Law.”

It is very clear from subsection 5 of section 49 of the Administration of Estates Law that, the intention of the law maker is that customary law be excluded in relation to the estate of persons to which the subsection applies.  It is also very clear that the above provision deals with succession to property of a person married under the Marriage Act who died intestate while residing within Lagos State. See Per Onnoghen JSC in Obusez v. Obusez (2007) 10 NWLR (PT. 1043) 430 at 459 , H-B– 460,

Section 49 (5) of the Administration of Estates Law, Laws of Lagos State provide that, in the event of a spouse married under the Marriage Act dying intestate and being survived  by his spouse and children , the surviving spouse shall be entitled to two thirds of  the  real estate of the intestate.

This entitlement to two thirds of the estate of the deceased person who died intestate makes such a spouse a beneficiary of the estate of the intestate and a qualified person to apply for letter of administration of the estate of her late husband.

Thus, it glaring from the foregoing that, the property of a person who married under the Marriage Act but died intestate would ordinarily devolve to his wife. Aboki, JCA, Motoh v. Motoh (2011) 16 NWLR (pt. 1274) 474 at 530, paras. B-C puts it succinctly thus:

“The position of the law is that, where a man who marries under the statute dies intestate, his estate is only inheritable by the wife legally married under the Marriage Ordinance or Marriage Act.”

Notwithstanding the position of the law expounded above, by virtue of Section 26 of the Lagos State Administration of Estate Laws, other beneficiaries of the deceased, such as his children (including children born out of wedlock during the subsistence of the marriage) and relations (which includes: brothers, sisters, half-brothers and half-sisters, aunts, nephews, nieces) are eligible to apply for letters of administration. See UBA V. Obianwu (1999) 12 NWLR (Pt. 629) 78. Nevertheless, the surviving spouse takes precedence over the children and the relations of the deceased.

In Obusez V. Obusez (supra) the Supreme Court rejected the argument that,the grant of letters of administration to the 1^st Respondent (the surviving spouse) along with the 2^nd respondent (a friend of the deceased), who is a total stranger to the deceased family to the exclusion of the appellants should not have been made and that the grant was a wrong exercise of discretion resulting in a miscarriage of justice and a derogation from the appellants constitutionally guaranteed right to family life.

Also, where the deceased has divorced his wife and his surviving children are still minors or under-aged, the letter of administration will be granted to the divorced spouse. In Administrator- General V. Coker (1948) 16 NLR 11, it was held that, inspite of the divorce, the mother was in the circumstance the right person to represent the child during minority and that, the grant should be issued jointly to her and a relative of the deceased.