Who Inherits in Nigeria

A woman keeps a house for twenty-two years. She raises four children in it, two of them hers by birth and two of them not. She is known in the compound as his wife, called so by his mother, seated as such at funerals, named as such on the school forms. There was a ceremony of some kind at the beginning, attended by both families, though nobody now living can say with confidence what was paid or to whom. There is no certificate. There was never a reason to get one.

He dies on a Tuesday. By Saturday the house has visitors.

They are not unkind. Several of them are genuinely grieving. But somewhere between the burial and the fortieth day a question is asked aloud for the first time in twenty-two years, and once asked it cannot be unasked: on what basis, exactly, is she in this house?

She has an answer. It is a true answer, and it is a long one, and it is made almost entirely of things that happened rather than things that were written down. The law will listen to it. The law will then ask her a much shorter question, and everything will turn on that.

(A constructed illustration. The pattern is ordinary; the person is not real.)

The law does not ask who you loved. It asks what it can read.

A household feels like the most private thing a person has. For most of its life it is left alone. No registrar visits. No statute is consulted. The arrangements that govern it — who contributes what, whose name the land is in, which child is treated as whose, what was said at a ceremony a generation ago — are made informally, adjusted informally, and never once written down, because writing them down would have been an insult and there was no occasion for it.

Then the household reaches one of four moments, and the institution walks in the door.

It walks in at death, when an estate must be distributed and somebody must be authorised to distribute it. It walks in at separation, when property acquired jointly must be divided between people who no longer agree on what joint meant. It walks in at incapacity, when someone must be permitted to decide on another person’s behalf. And it walks in at dispute, when a bank, a land registry, a hospital or a company registrar requires an answer to a question the family has been comfortable leaving open.

At each of those moments the institution asks the same thing. It does not ask about the twenty-two years. It asks what status the relationship holds, and it looks for the record that proves it.

This is not cruelty and it is not an oversight. An institution can only act on what it can verify. A registrar cannot weigh devotion. A court can weigh evidence, but only evidence that is put before it, and only after somebody has paid to put it there. The system is built to answer a narrow question quickly, and the narrow question is: which recognised status is this, and where is the document?

Almost everything difficult about Nigerian succession follows from the distance between how households actually form and what the law is equipped to read.

Nigerian law recognises intimate and family relationships through a small number of statuses. Each has its own conditions of entry, its own evidence, and its own consequences on death and on separation. They are not interchangeable, and a household is not free to choose which one it is in after the fact.

Recognition is not a matter of dignity or of naming. It is the switch that controls six practical things, and it controls all of them at once.

The first is standing to administer. Someone must obtain letters of administration before an intestate estate can lawfully be dealt with. Who may apply, and in what order of priority, depends on recognised relationship. A person with no status does not merely lose a share; she is not a person the process is addressed to.

The second is the share itself — the entitlement on intestacy under the applicable statutory, customary or Islamic regime.

The third is the matrimonial home. On separation, the court’s power to order settlement of property between spouses is exercised over people who are spouses. Outside that jurisdiction, the question reverts to strict title and proof of contribution.

The fourth is the family house — property held not by an individual but by a family as a unit, inalienable without the consent of the family, administered by its head. A person outside the recognised family does not acquire rights in it by living in it, however long.

The fifth is the children: custody, maintenance, and the framework through which either is claimed.

The sixth is the plainest and the most easily missed. It is the right to be told. Banks release balances to persons with authority. Registries respond to persons with an interest. Hospitals speak to next of kin. A person with no recognised status is not refused an answer so much as never reached by the question, and by the time she understands that, decisions have already been taken.

It would be comfortable to treat the unrecognised household as an unusual case. It is not. It is produced systematically, by four ordinary features of Nigerian life.

The first is that we operate two systems of marriage side by side and only one of them generates a document as a matter of course. Statutory marriage is a minority form in much of the country. Customary marriage is the majority form and, absent registration, leaves the household holding a valid status with nothing to produce.

The second is that formality is read as distrust. To ask for a certificate, a deed, a written agreement, or a record of what was paid is to suggest that the relationship might one day be contested — which is precisely the suggestion nobody wants to make at a wedding. The instrument that would have settled the question is not omitted by accident; it is declined on purpose, for a reason that is entirely human and turns out to be expensive.

The third is that assets sit in the wrong names for good reasons. The land is in the father’s name because it was his father’s. The account is in one name because two names were inconvenient at the branch. The business was registered by whoever went to the office. None of this was intended to allocate ownership. All of it will be read as though it were.

The fourth is time. The people who could have proved what happened were present at the beginning and are not present at the end. Nothing degrades faster than an unrecorded fact.

It is true, and important, that the courts have moved a long way. The repugnancy doctrine has been used to strike down customary rules disinheriting widows and daughters; the constitutional protection against disability by birth has real force; and the direction of authority since Mojekwu v Mojekwu (1997) is consistent. But there is a difference between a rule of law and a remedy actually available to a particular household. A judgment is obtained by a claimant who has standing, evidence, money and time, in that order. Most of what this cluster examines is the gap between the two.

A right you must litigate to establish is not a right you hold. It is a right you might win.

The whole of the analysis above points to one conclusion, and it is a constructive one. If the law will only act on statuses it can read, then a household that cannot obtain the status it wants must arrange its affairs so that the outcome does not depend on the status at all.

That is what instruments are for. An instrument does not marry anyone and does not confer a status. It does something narrower and more reliable: it fixes an entitlement to property by a route the register can verify, independently of what the register thinks of the relationship.

Four routes do most of the work.

A will disposes of what the testator owns, to whomever he chooses, subject to the limits of the applicable law — which for a person governed by Islamic personal law is a real and defined limit, and which everywhere leaves the family house and jointly-owned property outside the testator’s gift. A will is the cheapest of the four and the most frequently defective, because it is written once and never revisited.

A lifetime transfer moves the asset now, into the correct name, through the register that governs it. It is definitive and it is irreversible, which is both its virtue and its risk.

A trust separates the person who benefits from the person who holds. It is the instrument that answers this problem most directly, because it can provide for a dependant the law of succession would not reach, it operates outside the estate, and it does not require the beneficiary to establish any status other than being named. This is the reason a body of work on trusts is the natural home for a body of work on households.

A letter of wishes carries the explanation the instrument cannot — who the people are, why the provision is what it is, and what the maker of it understood the arrangement to be. It binds nobody. It has settled a great many disputes that a bare instrument would have started.

None of this is a substitute for regularising a status where a status can be regularised. Where a customary marriage exists and can be registered, register it. Where a statutory marriage is wanted, contract it. Where paternity is a fact, acknowledge it in a form that will outlive the person acknowledging it. The instruments are for what remains after that — and for most Nigerian households, something always remains.

Each of the essays below takes one household question and follows it to the register that decides it. They can be read in any order; the first is the paradigm case the others are measured against.

The woman in the cold open is not without remedies. She may be able to prove a customary marriage. She may be able to establish a beneficial interest in the house through her contribution. She may have a claim as the mother of children of the deceased. Each of those is a real route and each is examined below.

What she does not have is the one thing that would have made none of it necessary, and it would have cost less than a single day in court.

The law will not be persuaded of a relationship it cannot read. What it will not recognise, an instrument must provide for.