Professor of Private and Property Law, Babatunde Oni (SAN) has called for periodic reviews of the legal framework governing wills in the various states of the federation to ensure its continued relevance in the evolving socio-legal context.
He said this adaptive approach will enable the legal system to address emerging challenges and incorporate best practices in the field of inheritance law.
Prof, Oni stated this in his inaugural lecture delivered at the J.F. Ade Ajayi Auditorium of the University of Lagos titled, “Crying from the Grave: Trust’s Resonance in Inheritance Tales.”
The law professor called for legislative support for law of restitution over unlawful conversion of inheritable property.
He noted: “ while alive, property owners may decide to adopt gift inter vivos as well as trust inter vivos but emphasised that disposition made during one’s life, reduces possible disputes that may arise as a result of absence of estate planning.”
According to him, “the law of restitution seeks reimbursement from another who had benefitted from someone else’s property without legal justification.
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“The principles are based on enrichment, deprivation, and the absence of a juristic reason for enacting legislative intervention. It becomes necessary, other than criminal prosecution, to compel families or individuals to disgorge inheritable property or the value unlawfully converted by the laws of wills.
“The administration of estate laws of various states should be amended to reflect this”, he stressed.
Prof. Oni listed the many estate planning mechanisms with varying degrees of complexities and limitations to include Wills, Trusts, Gifts, Power of Attorney, Succession by Contract and naming a beneficiary for life insurance, retirement accounts, securities and bank accounts, among others.
The law professor explained that in Nigeria, the inheritance of a deceased person’s assets is influenced by various circumstances, including their religion, indigenous belief system, or customary law and practice.
“If a person dies intestate, the law of intestate succession in Nigeria involves the application of three systems: The English Common Law system, The Administration of Estate Laws of the various states, and Customary law, which includes Islamic Law. It is important to note that Islamic law is considered to be equivalent to indigenous customary law. However, it is not subject to the strict rules of proof and validity of customary law as it is derived from known and written sources like the Qur’an and Sunnah”.
He emphasized however that in any situation that intestacy arises, the allocation of the property is solely determined by the legal regulations that dictate the sequence of inheritance in cases where there is no valid will.
He stressed the importance of application of trust for every estate plan to work and be receptive to all stressing that the law also imposes an application of trusts on whoever takes charge of the properties of the deceased.
He advocated for supportive legislation at the national and State levels that recognize and facilitate the establishment of trusts in customary inheritance, saying that government backing can provide a solid legal foundation for the integration of trusts into the broader legal landscape.
“The State must establish a system for monitoring and evaluating the effectiveness of trust structures in customary inheritance. Regular assessments can identify areas for improvement, ensure compliance with legal standards, and contribute to the ongoing refinement of trust-related policies”, he said.
To modernize and strengthen the trust systems in customary inheritance issues in Nigeria, fostering transparency, efficiency, and fairness in the administration of Wills, he recommended that the legal framework be amended to explicitly recognize and regulate partially oral wills, particularly through recorded mediums.
Prof Oni advocated for the formal recognition of customary trusts within the legal framework, incorporating provisions into relevant laws to acknowledge and legitimize trusts as a recognized instrument for managing and distributing inheritance under customary law.
“In addition, a community-based trust model must be developed and tailored to the specific cultural and social dynamics of each community. This involves working closely with local leaders and traditional institutions to create trust structures that align with customary practices while adhering to basic legal principles.
He said this adaptation aligns with contemporary practices and ensures a more inclusive approach to inheritance matters and can be incorporated in line with Section 84 of the Evidence Act.
“This provision allows for the admission of electronic records, emails, digital documents, social media posts, and other forms of electronic evidence in legal proceedings, as long as the necessary requirements are met. It should be amended to include provisions that specifically address the admissibility of electronic Wills, acknowledging them as valid testamentary documents”, he said.
To enhance the reliability and accessibility of wills, he said there should be a concerted effort to digitize and manage wills through a centralized database.
“Leveraging technology for will documentation and storage would not only reduce the risk of loss or tampering but also provide a systematic means for authorized individuals to access these documents promptly.
“A comprehensive national database should be established to centralize the storage and management of wills across all states in Nigeria. This centralized system would facilitate efficient data sharing, minimize duplication, and promote transparency in the administration of Wills, curbing corruption and ensuring that the rightful beneficiaries receive their inheritance without undue delays or interference”
He proposed that there should be the development and adoption of a standardized format for wills to streamline the process of drafting and reduce ambiguities, adding that a standardized template can serve as a guide for testators, minimizing errors and legal disputes, and aiding in the efficient administration of estates.
He said public awareness campaigns should be launched to educate the populace about the importance of drafting wills, “the potential risks of not having a will, and the benefits of utilizing the reformed systems” he said, adding that increased awareness will encourage more individuals to engage in proper estate planning, reducing the likelihood of intestacy and subsequent legal complications.
He suggested that launching of awareness campaigns to educate communities about the benefits of trusts in inheritance matters should include information on how trusts can preserve family wealth, provide for dependents, and mitigate disputes. Education is key to fostering acceptance and understanding of the concept.
Prof Oni advocated for the formal recognition of customary trusts within the legal framework, incorporating provisions into relevant laws to acknowledge and legitimize trusts as a recognized instrument for managing and distributing inheritance under customary law.
“In addition, a community-based trust model must be developed and tailored to the specific cultural and social dynamics of each community. This involves working closely with local leaders and traditional institutions to create trust structures that align with customary practices while adhering to basic legal principles.