Handling wills, inheritance disputes
Disputes over the transfer and inheritance of individual or family property by near or distant relatives have been a leading cause of fights and disagreements in many communities in Nigeria.
Envy and sibling rivalry, especially in handling these issues, have further contributed to animosities.
In some instances, hatred develops from the absence of a will by the initial owner and or contest of the validity or administration of the will.
A will is a document that states the last wishes of a testator.
A research work titled, “Inheritance and family conflicts: exploring asset transfers shaping intergenerational relations,” by Misa Izuhara and Stephan Köppe and published online in 2017, showed an annual increase in inheritance disputes since 1985.
The authors stated that the value of the inheritance, sibling rivalry, legacy of divorce and verbal indication or bequeath of the property or business are reasons families engaged in endless court battles.
A further breakdown of these causes shows that high-valued inheritances are mostly contested in court, while smaller inheritance disputes are settled out of court.
Bequeathing the family house, especially when one of the children resides in the building, is another reason for the disputes.
The sibling living in the home may not want to pay rent for the portion that should extend to the other siblings.
Such cases portend more trouble among the children if the portions are not clearly stated or only stated verbally by the testator.
The PUNCH reported in 2016 the bitter rivalry among some family members regarding the acquisition of their father’s property.
The report quoted Justice Modupe Onyeabo of the Family Division of the Lagos State High Court, who handled the case of the wealthy property owner with 36 children contesting his property, as saying the family was “at daggers drawn and some of them are no longer on talking terms.”
The judge, who delivered a paper titled, ‘Family Cohesion and Inheritance: The Role of the Administrator-General and Public Trustee,’ stated that unfavourable ethnic or cultural practices, lack of accountability on the part of caretakers, gender discrimination to polygamy were factors causing disharmony during property sharing or will execution.
A will writing service in the United Kingdom, Unite Wills, states that a will, if not written and signed by the testator or by someone else permitted to do so in the presence of the testator and without the attestation and signature of the witnesses, is rendered invalid.
Additionally, a will can be contested if it does not include the true wishes of the testator, has not been correctly executed and is found with elements of fraud and forgery.
“The best way to minimise the risk of disputes and legal problems is by planning and writing a will with a professional will-writing service,” the company said.
Undoubtedly, many Nigerians have forfeited or lost property due to incomplete documentation, secrecy and lack of a will by the initial owner.
For a businessman, Adebayo Adegboyega, the mistake his father made by not having a will before his death was one he vowed never to repeat.
He stated that though his father had a lot of property before his demise, the absence of the will created a problem.
Adegboyega added that when he was given charge of a landed property that belonged to his mother, he employed the services of a legal practitioner to “avoid stories.”
He said, “Having a will is a very good thing. A lot of children and wives are in trouble today because their father/husband fails to do the will during their lifetime, thereby causing them to lose their property to other people knowingly and in some cases unknowingly. My dad didn’t write his will while he was alive despite having a lot of property. l will not repeat such a mistake.”
Adegboyega noted that aside from keeping the documents of one’s property safe, the property itself should be checked regularly.
“I prefer getting a legal practitioner involved. In this part of the world, one must not be careless with his or her properties to avoid losing it to others who are smarter than us,” he opined.
A lawyer, Ayo-Oluwa Oloyede, on his Facebook page, recently shared the story of a father, who in his final will, gifted his daughter one of his highly valued property with a caveat that the documents be handed to her when she clocked 35 with a master’s degree.
The daughter, who was 24 at the time, reportedly sought to lay hands on the documents but failed.
“The executor stood his ground. The property is now marked NOT FOR SALE and a caveat has been filed at the registry. She can wail and whine but until she’s 35 with a master’s degree, she does not possess that promise,” the post added.
Such a watertight process ensured the safety of the documents and property and honoured the wishes of the testator.
A family lawyer, Joshua Daranijo, stated that the most effective way to handle property or transferring of commodities to family members was through the writing of a will.
He advised that the planning and drafting of a will should be done by engaging the services of a lawyer.
He said, “Most people do not see the need to have a family lawyer but you should always have a family lawyer. Even if it is someone close to the family. It is better not to have a member of the family as the family lawyer because it might make objectivity a bit more difficult.”
Daranijo added that the family lawyer must be trusted and preferably someone unrelated to the family.
After the services of a trusted lawyer are retained, knowing the amount of and what property to be assigned is necessary.
According to the family lawyer, immediately after a couple is married, issues of wills and next of kin should be discussed and agreed upon.
“I don’t think you need to wait until you have numerous assets or you are old before you have such discussions. This also does not imply a sudden death at a young age. Rather, it helps the family to be able to access funds in case of eventuality that leaves the person incapable of handling transactions.
“Writing a will and sorting out the next of kin should be done within the first one or two years of marriage. This makes it clear of who gets what in case of death,” he said.
Wills could be updated annually at the purchase of property and accumulation of wealth.
The family lawyer noted that writing a will on the deathbed could be contested whether the individual was in a sound mind at the time.
He explained that a next of kin did not translate to being the beneficiary of a will.
Daranijo said, “Your next of kin is someone they can call to reach you and have some level of authority to access funds at the bank. But if your next of kin is not on your beneficiary list in your will, that is a different matter entirely.
“The next of kin listed in your bank’s document will still need proof that you wanted them to have the money in the bank through a letter of administration from the court or a will that states that everything from this account must be willed to this next of kin. Your next of kin must tally with the list of beneficiaries of your assets and accounts.”
He added that unless there was a conflict in a marriage, the spouse was the preferred next-of-kin and beneficiary in the will.
Daranijo decried the lack of orientation on succession and will in the country.
He advised, “Don’t joke with succession. Always make it a priority and this does not mean negative thinking. Those not planning to marry should also decide on who they want as their next of kin.”
To resolve disputes for families whose loved ones died without writing a will, the family lawyer stated that a letter of administration could be applied for and got from the court.
He, however, decried the ease of getting the document, stating that it allowed criminally-minded relatives or friends to exploit the real owners while still alive.
He said, “The system needs to do better. There needs to be more scrutiny and diligence on the part of the court because we also see cases where officers of the court are involved in fraud and join in approving letters of administration to people who have no relation to the family. If due diligence is not done, anyone can take the letter of administration that is duly signed and this would be accepted by the banks.
“A will would declare all your assets and divide them with the people you need to divide them with. But when you die without a valid will, that is when people will begin to apply for a letter of administration.”
This could further promote disputes among family members and open up such families to being cheated by rogues, who understand that they can easily apply for and get a letter of administration.
Families who do not have lawyers are further at risk of being chased off or cheated of their property.
When the head of a family then dies without leaving a will or having a family lawyer, Daranijo advised the immediate members, such as the children or spouse, to immediately apply for a letter of administration by presenting a marriage certificate or birth certificate or any means of identification as proof.
To avoid this stress, Daranijo stated, “Get a lawyer and have a will. Even if the will is contested, as long as you have a verifiable means, the will of the testator will be granted.”
Also, a legal practitioner, Benedict Olutan, explained that a will was only effective after the demise of the testator.
Olutan explained that a lawyer should be the only one privy to the contents of a will and it should be kept with a trusted person, in a bank, with the lawyer or in a probate registry.
He stated that securing the will in the probate registry was the best option as it would prevent an unlawful takeover by non-listed members.
“When there is a will, sometimes the testator is expected to appoint at least two or more executors, who will take over the property, share it and go to court for a letter of administration. When the testator does not appoint an executor, the beneficiaries apply to the probate registry for a letter of administration with a will,” Olutan added.
Those who acquired landed property based on trust without the appropriate documents will face problems after the demise of the initial owners involved in the verbal bond.
Only property with adequate documents can be successfully transferred from the owner to their beneficiaries without attracting disputes.
To this, the legal practitioner harped on the importance of having a complete and original document of every acquired property.
He said, “Before you buy a property, it is essential to secure the services or opinion of a legal practitioner or an expert. They will undertake the legal due diligence by tracing the initial owner of the property or any existing legal claim on the property.”
Olutan added that buyers must ensure they get the deed of assignment, consent and registration of the property.
He encouraged persons without properly executed legal documents of their property to rectify them while the “assignor, that is, the person who sold the property is still alive. When such a person dies, it becomes difficult to prove.”
Punch
