18 April 2008

Nigeria: Inheritance Rights And Women (iii)

Abuja — "Inheritance simply means the entry of a living person into the position of a dead person"

Inheritance refers to a title or property or estate that passes by law to the heir on the death of the owner. It also refers to attributes acquired via biological heredity from the parents or an attribute or immaterial possession as in a blessing from a dead parent.

The Nigerian legal system is a mixture of Nigerian legislation, English law, customary law (including Islamic law) and judicial precedents.

The lives of the Nigerian women have come to retain certain economic opportunities within the social system. Traditional or tribal society in Nigeria expect women to be wage earners who in farming, fishing, herding, and articles of commerce like pottery, cloth-making, and craft work. Women traditionally had the right to profit from their work, although the money usually served as a contribution to the family income. These traditions still survive in modern Nigeria.

However, Nigerian men do not value the economic contributions of their wives. Nigerian women still lack certain basic rights. As a rule, men in some cultures of Nigeria do not have any legal responsibility for their offspring, and they often abandon women, expecting them to carry the financial burden of the family. My bible tells me that any man who cannot provide for the needs of his family is worse than an infidel.

Polygamy is a crucial component of many women's lives. As women get older they have the comfort of knowing that the burden of their marriage does not fall solely on their shoulders.

A woman's position in society changes vastly once they marry since she becomes a possession, with relatively no rights in her husband's family. In some cases the husband's mother and sisters have much more of an influence over him than his own wife. The wife resents this lack of control or even respect within their marriage.

The Nigerian system of inheritance reflects the lack of male responsibility to his wife and children. If a husband dies, the woman usually receives nothing, although the law entitles her to a share. If she has no children, the treatment is worse. Since property can only pass between the same sexes, women can never inherit from their fathers since inheritance is largely patrilineal except with the sharia law.

Within marriage, women have an obligation to have children. Traditionally, society blames the woman for a marriage without children. Society not only condemns women who cannot have children, but unmarried and divorced women as well. The inheritance practices also take cognisance of this fact.

In recent years, modern developments of mandatory education, urbanisation, and capitalism are changing the Nigerian society. Since 1960, educational opportunities have expanded for women. Slowly men are beginning to see the value of higher education for their wives. Now, more often than not, they send their daughters to school for an education. But the impact of this exposure is yet to be felt in the inheritance practices of most cultures. As western values gained influence in post colonial Nigeria, women are beginning to demand some equality. Perhaps they will be able to reconcile the rights of the past with the freedoms of a modern age. They must fight for their rights to inherit property.

 The Indian Experience

Muslim women in India fall under The Muslim Personal Law (Shariat) Application Act, 1937. The Act abrogated discriminatory inheritance custom and enhanced most Muslim women's rights. Hence under the reform, a daughter and widow cannot be excluded by any other heir and are protected by the overall testamentary restrictions. Section (2) of the Act provides that:

"Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift, or any other provision of Personal Law, marriage, dissolution of marriage, including Talaq, Ila, Zihar, Lian, Khula and Mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions, and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)."

Muslims of East Pakistan (now Bangladesh), however, continued to come under the 1937 Shariat Act. But here women were not disadvantaged since even before this Act customs contrary to Islamic law were not enforced. Although, women would be entitled to smaller shares than men, still this amendment would go a long way in enhancing Muslim women's rights in this critical livelihood source.

There is a window of opportunity today for reform-minded political leaders, activists and intellectuals to work together, to correct historically embedded gender disabilities. Let this chance not be missed.

Contesting A Will

This doesn't happen very often. When it does, it's usually by someone who feels cheated out of his or her share of the will. However, legally, only a spouse is entitled to a specific share. So, to successfully challenge a will, it does little good to argue that the person making out the will made a mistake or cheated you. Instead, your best shot is to challenge the validity of the will, i.e. arguing the signature was forged, that the person making out the will was not of a sound mind, or that he or she was coerced or unduly persuaded by someone else.

The influence of received English law on customary law is very prominent in the area of personal laws (marriage and inheritance). Laws governing the marriage relationship in Nigeria tend to impact dramatically on women's legal position and status in many respects including domicile, property rights and legal competence. Invariably, a woman's right to property depends on the type of marriage she contracted which is either statutory or customary marriages, which include marriages under Islamic law.

Some states in the Eastern States namely Anambra, Enugu and Ebonyi States have adopted the Administration and Succession (Estate of Deceased Persons) Law, 1987 which deals with inheritance/succession to real and personal estate on intestacy.

Section 120 of the Administration and Succession (Estate of Deceased Persons) Law, 1987 prescribes thus:

a) If the intestate leaves a husband or wife but no children, parents or brothers or sisters of the whole blood, the residuary estate shall be held on trust for the surviving spouse absolutely. However, where the surviving spouse is the wife and the intestate leaves brothers or sisters of the half blood, the wife's interest will be for her life or until she marries whichever first occurs. Thereafter, the residue of her interest shall go to the intestate's brothers and sisters absolutely in equal shares. The children of a deceased brother or sister will take the share to which his parent would have been entitled if alive.

Where the intestate leaves a husband or wife as well as children's children (whether or not he also leaves parents or brothers or children of brothers and sisters), the residuary estate shall be held on trust as to the value of one third thereof for the surviving spouse. The interest of such spouse shall be absolute in the case of a husband and in respect of a wife, for her life or until re-marriage, whichever first occurs. The remainder of the estate together with any residue on the cesser of the wife's interest shall be held on trust for the children in equal shares absolutely or failing children, on trust for the children of the intestate's children in equal shares absolutely.

If the intestate leaves a husband or wife as well as one or more of the following - a parent, a brother or sister of the whole blood or children of a brother or sister of the whole blood, but does not leave a child, two thirds of the residuary estate shall be held on trust for the surviving spouse. In the case of a husband, the interest shall be absolute while for a wife, it will last for her life or until her re-marriage, whichever first occurs. The remaining one-third of the estate together with any residue on cesser of the wife's interest shall be held on trust for the brothers of the whole blood in equal shares absolutely. In the absence of brothers of the whole blood or their children, the portion will be for parents absolutely.

d) Where the intestate leaves children or children of deceased children but no husband or wife, two thirds of the residue of the intestate's estate shall be held on trust for the children of the intestate equally. Of the remaining one third, one sixth shall be held on trust for the parents and the other one-sixth for brothers and sisters.

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