By Adewale Kupoluyi
In Nigeria, the Islamic form, as practiced by Muslims is called the Wasiya and has no required formality except that it must be in respect of only one-third of the deceased’s estate unlike the English form that is governed by statutory authority, which varies from state to regions. On the other hand, a trust can be defined as an equitable obligation binding a person, who is called the trustee, to deal with property over which he has control, which is called trust property for the benefit of persons, who are called beneficiaries or cestui que trust, held in a fiduciary by one party for the benefit of another by the trustees, who are known for their reliability, integrity, and faithfulness
Learning, they say, is a continuous exercise. This time around, the Nigerian Bar Association (NBA), Ibadan Branch Continuing Legal Education Quarterly Seminar Series presents an opportunity for a discourse at the Aare Afe Babalola Bar Centre, Ibadan, Oyo State. The lead paper titled, “The Law and Practice of Wills Probate and Administration of Estates”, was delivered by Prof. Babatunde Oni of the Department of Private and Property Law, University of Lagos, Akoka, Lagos State, which I found worth sharing. According to the don, due to some problems, which are usually encountered in the distribution of estates and hence, estate planning is beginning to get more attention.
He stressed that the inevitability of death and retirement as a result of old age makes it mandatory for a person to leave a good estate plan to avoid acrimony and conflicts often associated with improper estate planning, saying irrespective of one’s financial situation, it is key to have an estate plan, which is like a roadmap on how a testator wants his properties to devolve upon his demise or intervivos. The guest speaker disclosed that the main objectives of estate planning include tidying up one’s affairs, providing support for one’s spouse and children, minimising the cost of payable estate taxes, transferring property to one’s heirs and legatees in terms of devolving a plan detailing one’s wishes as to the use and distribution of his wealth, preparing for future illness, disability or retirement before and after death.
According to him, to achieve an effective estate planning, there are number of estate planning tools such as wills, trusts, gift intervivos, estate plan by instrument of contract, and estate plan by operation of law. A will is a testamentary and revocable document, voluntarily made, executed and witnessed according to law by a testator with sound-disposing mind wherein he disposes of his property subject to any limitation imposed by law and gives such other directives as he may deem fit to his personal representatives otherwise known as his executors, who administer his estate in accordance with the wishes manifested in the will, which takes effect after death while someone, who makes a will is called a testator if he is male or testatrix when female.
In Nigeria, the Islamic form, as practiced by Muslims is called the Wasiya and has no required formality except that it must be in respect of only one-third of the deceased’s estate unlike the English form that is governed by statutory authority, which varies from state to regions. On the other hand, a trust can be defined as an equitable obligation binding a person, who is called the trustee, to deal with property over which he has control, which is called trust property for the benefit of persons, who are called beneficiaries or cestui que trust, held in a fiduciary by one party for the benefit of another by the trustees, who are known for their reliability, integrity, and faithfulness. He added that trust is not a legal person like an individual or a company, capable of owning property and for there to be a trust, property must be subject of a trust, so the property would be owned by a trustee or trustees, who may be individuals or corporate organisations.
The Professor identified some of the problems facing estate planning through trust in Nigeria to include finding a suitable person to act as trustee, perfecting of a trust, and heavy cost of administration. To sort out the controversies, the office of the Administrator-General and Public Trustee, which is a branch of the Ministry of Justice, deals with the administration of estate and it gets involved in trusts usually by court orders, which may occur in the process of administering estates that have minors as beneficiaries by protecting the interest of beneficiaries that the court had ordered the office to hold such property in trust for, as against vesting the assets in personal representatives. A legal title cannot be held by a minor, as there is no objection to the land being held in trust for such a person, as stated in Section 7(a) of the Land Use Act, Cap 202, Laws of the Federation of Nigeria, 1990.
The guest speaker observed that challenges facing corporate trustees in estate planning to cover financial crimes and confidentiality, conflict in management and administration of trust, challenges of variation of trust as well as regulatory constraints. He stated further that probate practice had to do with the procedure of administration of the estate of the deceased after his death in terms of the procedure used for the grant of probate and letters of administration while applications for probate or letters of administration are made to the probate registry and that while a probate confirms the authority of an executor, a letter of administration where it is granted, confers authority of an administrator, as affirmed in the case of Ademola v. Sodipo (1989) 5 Nigeria Weekly Law Reports pt.121 329.
However, controversies may arise in this process. For instance, where two or more persons are entitled in the same degree to probate. In this case, the registrar may validly grant probate to the other person without notice to the other persons entitled in the same degree, saying this is recipe for disputations where there are, and when two or more executors are appointed in a will and only one person applies for probate, the grant may be resisted by other executors that are excluded from the grant, saying what is safe to do is to be fair to all parties to prevent the truncation of the process. The search for the testator’s will begins after the burial ceremonies and that the original copy of the will is often kept at the probate registry and if the will is in the custody of the testator or any other person, it is sent to the probate registry within three months of his knowledge of the testator’s death.
He informed that the will must be read in the probate registry or any place that the probate registrar determines and he shall be the supervising officer, but where the will cannot be found and there is reasonable ground to believe that a person has knowledge of any testamentary document of the testator, the court may summarily order that such a person be examined or interrogated regarding the document in court. Prof. Oni, who is also the Principal Partner, Babatunde Oni & Co, admitted that the administration of estate, either through probate or letter of administration, is a technical one that requires expertise that is laden with the problems bordering on death certificates; influence of customary succession in the grant of probate and letter of administration; conflicts among the executors, administrators and beneficiaries; delays in obtaining letter of administration and probate or manual filling; high cost of obtaining letters of administration or probate; and matters pertaining to next-of-kin; among others.
The legal luminary recommended that most of the identified problems can be tackled through the practice of trust intervivos and gift intervivos, introduction of a digital and electronic filing system to eliminate manual processing of files at the probate registry, improved service delivery, adequate training of probate registry staff, introduction of Alternative Dispute Resolution (ADR) mechanism into the administration of estates law, and allowing for instalmental payment of estate duties. In addition to the Professor’s rich presentation with appropriate legal authorities, more Nigerians should embrace the practice of wills writing. The bitter truth is that death is inevitable and no one knows the time, how, and where; writing of wills is never a death sentence, but a necessity in the journey of man in life.
Dr. Kupoluyi writes from Federal University of Agriculture, Abeokuta (FUNAAB), Ogun State.