Introduction
It
is no longer unusual in Nigeria for a deceased who was married under the
Marriage Act to have children out of wedlock. Whenever instances such as this
arise, one of the major issues, which crops up is, who amongst the children of
the intestate person are entitled to apply for letters of administration in
respect of the estate of the intestate person. This is because by virtue of
section 24 (1) of the Administration of Estates Law, Laws of Lagos State,
Volume 1, CAP A3, the maximum number of persons who can apply for letters of
administration is 4 (Four).
is no longer unusual in Nigeria for a deceased who was married under the
Marriage Act to have children out of wedlock. Whenever instances such as this
arise, one of the major issues, which crops up is, who amongst the children of
the intestate person are entitled to apply for letters of administration in
respect of the estate of the intestate person. This is because by virtue of
section 24 (1) of the Administration of Estates Law, Laws of Lagos State,
Volume 1, CAP A3, the maximum number of persons who can apply for letters of
administration is 4 (Four).
Our
law reports are replete with cases where children of an intestate person who
were born within wedlock were up in arms against children born outside wedlock
in respect of the modalities for applying for letters of administration for
their late parent’s estate.
law reports are replete with cases where children of an intestate person who
were born within wedlock were up in arms against children born outside wedlock
in respect of the modalities for applying for letters of administration for
their late parent’s estate.
This
paper therefore seeks to explain the status of children born out of wedlock
with regards to their right to apply for letters of administration in respect
of their late father/mother’s estate.
paper therefore seeks to explain the status of children born out of wedlock
with regards to their right to apply for letters of administration in respect
of their late father/mother’s estate.
There is no Legal Distinction Between Children Born
Within and Outside Wedlock
Within and Outside Wedlock
Section
42 (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as
amended) provides, thus: “No
citizen of Nigeria shall be subjected to any disability or deprivation merely
by reason of the circumstances of his birth.
42 (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as
amended) provides, thus: “No
citizen of Nigeria shall be subjected to any disability or deprivation merely
by reason of the circumstances of his birth.
The
effect of the provision of section 42 (2) of the Constitution is that there is
no legal distinction between children born in a lawful wedlock and children
born out of wedlock. This is because section 42 (2) specifically precludes
discrimination against a child on the basis that he/she was born outside
wedlock.
effect of the provision of section 42 (2) of the Constitution is that there is
no legal distinction between children born in a lawful wedlock and children
born out of wedlock. This is because section 42 (2) specifically precludes
discrimination against a child on the basis that he/she was born outside
wedlock.
The
Supreme Court of Nigeria endorsed the position stated above in the case of Salubi v. Nwariaku
(2003) 7 NWLR (Pt. 819) 426 where it held that the children of the deceased who
were born within a lawful wedlock and the children of the deceased who were
born out of wedlock are entitled in equal shares to the properties of the
deceased. Ayoola, JSC captured this point beautifully when his Lordship held
thus:
Supreme Court of Nigeria endorsed the position stated above in the case of Salubi v. Nwariaku
(2003) 7 NWLR (Pt. 819) 426 where it held that the children of the deceased who
were born within a lawful wedlock and the children of the deceased who were
born out of wedlock are entitled in equal shares to the properties of the
deceased. Ayoola, JSC captured this point beautifully when his Lordship held
thus:
“It suffices to hold that the court below was right in
holding that the trial court had jurisdiction to entertain the claim before it
and that the two issues born out of wedlock are entitled in equal shares with
the two other issues of the marriage of deceased and the widow.”
holding that the trial court had jurisdiction to entertain the claim before it
and that the two issues born out of wedlock are entitled in equal shares with
the two other issues of the marriage of deceased and the widow.”
The
implication of the foregoing is that the mere fact that a child was born out of
wedlock will not be an impediment to the child getting an equal share of
his/her deceased parent’s properties with the children born in a legitimate
wedlock.
implication of the foregoing is that the mere fact that a child was born out of
wedlock will not be an impediment to the child getting an equal share of
his/her deceased parent’s properties with the children born in a legitimate
wedlock.
Can a Child Born Out of Wedlock Apply for Letters of
Administration?
Administration?
Section
26 (1) of the Administration of Estate Law, Laws of Lagos State, Volume 1, CAP
A3, 2003 provides as follows:
26 (1) of the Administration of Estate Law, Laws of Lagos State, Volume 1, CAP
A3, 2003 provides as follows:
“In granting administration the court shall have regard
to the rights of all persons interested in the estate of the deceased person or
the proceeds of sale thereof,… and any such administration may be limited in
any way the court thinks fit—“
to the rights of all persons interested in the estate of the deceased person or
the proceeds of sale thereof,… and any such administration may be limited in
any way the court thinks fit—“
The
effect of section 26 (1) is that all the beneficiaries or persons who have an
interest in the estate of a deceased person can apply for the issuance of
letters of administration in respect of the estate of the deceased person. This
means that the surviving spouse and all the children of the deceased can apply
for the issuance of letters of administration. Also, other relatives of the
deceased such as his/her siblings, aunts, uncles, cousins and so on can also
apply for the issuance of letters of administration.
effect of section 26 (1) is that all the beneficiaries or persons who have an
interest in the estate of a deceased person can apply for the issuance of
letters of administration in respect of the estate of the deceased person. This
means that the surviving spouse and all the children of the deceased can apply
for the issuance of letters of administration. Also, other relatives of the
deceased such as his/her siblings, aunts, uncles, cousins and so on can also
apply for the issuance of letters of administration.
The
crux of section 26 (1) in granting letters of administration is in the phrase, “rights of all persons interested”.
Children born out of wedlock definitely fall within the category of persons
interested. This does not however give room for all comers, as “any such administration may be
limited in any way the court thinks fit”.
crux of section 26 (1) in granting letters of administration is in the phrase, “rights of all persons interested”.
Children born out of wedlock definitely fall within the category of persons
interested. This does not however give room for all comers, as “any such administration may be
limited in any way the court thinks fit”.
It
is submitted that a child who was born out of wedlock can apply for the
issuance of letters of administration in respect of the estate of his/her
deceased parent. This is because the provision of section 26 (1) of the
Administration of Estate Law of Lagos State is encompassing and covers children
born out of wedlock. Further to this, the provision of section 42 (2) of the
Constitution of the Federal Republic of Nigeria also makes it unlawful for a
child to be denied his/her right to be appointed as an administrator of his/her
deceased parent’s estate just because he/she was born out of wedlock.
is submitted that a child who was born out of wedlock can apply for the
issuance of letters of administration in respect of the estate of his/her
deceased parent. This is because the provision of section 26 (1) of the
Administration of Estate Law of Lagos State is encompassing and covers children
born out of wedlock. Further to this, the provision of section 42 (2) of the
Constitution of the Federal Republic of Nigeria also makes it unlawful for a
child to be denied his/her right to be appointed as an administrator of his/her
deceased parent’s estate just because he/she was born out of wedlock.
Again,
it is important to note that the Court has a discretion regarding persons to
whom letters of administration are to be granted and this discretion must be
exercised on the basis of materials/evidence placed before the Court and with
due regard to the rights of all persons interested in the estate of the
deceased person or proceeds of the sale thereof. See: Asere v. Asere (1992) 6
NWLR (Pt. 197) 316.
it is important to note that the Court has a discretion regarding persons to
whom letters of administration are to be granted and this discretion must be
exercised on the basis of materials/evidence placed before the Court and with
due regard to the rights of all persons interested in the estate of the
deceased person or proceeds of the sale thereof. See: Asere v. Asere (1992) 6
NWLR (Pt. 197) 316.
In
the case of Chief J.L.E
Duke v. Rev. (Dr.) Peter Etim Duke (2014) LPELR-23095 (CA), the
Court of Appeal upheld the judgment of the trial Court where it granted letters
of administration in respect of the estate of the deceased to both the
Appellant and Respondent. Although the Appellant, who was born within the
lawful wedlock of the deceased, had contended that the Respondent was not
entitled to a grant of the letters of administration because he was born out of
an adulterous relationship, the Court of Appeal held that this was not enough
ground to refuse the Respondent his right to be appointed as an Administrator
to his late father’s estate. The Court of Appeal also held that the Respondent
could not be discriminated against based on the provision of section 42 (1) of
the Constitution of the Federal Republic of Nigeria and that the Respondent was
able to show that he had sufficient interest in the properties of the
deceased.
the case of Chief J.L.E
Duke v. Rev. (Dr.) Peter Etim Duke (2014) LPELR-23095 (CA), the
Court of Appeal upheld the judgment of the trial Court where it granted letters
of administration in respect of the estate of the deceased to both the
Appellant and Respondent. Although the Appellant, who was born within the
lawful wedlock of the deceased, had contended that the Respondent was not
entitled to a grant of the letters of administration because he was born out of
an adulterous relationship, the Court of Appeal held that this was not enough
ground to refuse the Respondent his right to be appointed as an Administrator
to his late father’s estate. The Court of Appeal also held that the Respondent
could not be discriminated against based on the provision of section 42 (1) of
the Constitution of the Federal Republic of Nigeria and that the Respondent was
able to show that he had sufficient interest in the properties of the
deceased.
Also,
in the recent case of Mgbodu
v. Mgbodu (2015) 12 NWLR (Pt. 1474) 415 the Court of Appeal held
that a child born out of wedlock must not be prevented from partaking in the
sharing of his deceased father’s estate. His Lordship, Bolaji-Yusuff, JCA at
page 439 paragraphs D-F held thus:
in the recent case of Mgbodu
v. Mgbodu (2015) 12 NWLR (Pt. 1474) 415 the Court of Appeal held
that a child born out of wedlock must not be prevented from partaking in the
sharing of his deceased father’s estate. His Lordship, Bolaji-Yusuff, JCA at
page 439 paragraphs D-F held thus:
“It has long been established that in this land,
Nigeria, once a father acknowledges the paternity of a child whether born in or
out of wedlock, the child is regarded as a legitimate child and is entitled to
share in the estate of his/her father…This custom has now received a
constitutional approval first through section 39 of the constitution of the
Federal Republic of Nigeria, 1979 and now through section 42 of the 1999
Constitution (as amended) which provides that no citizen of Nigeria shall be
subjected to any disability or deprivation merely by reason of the
circumstances of his birth.”
Nigeria, once a father acknowledges the paternity of a child whether born in or
out of wedlock, the child is regarded as a legitimate child and is entitled to
share in the estate of his/her father…This custom has now received a
constitutional approval first through section 39 of the constitution of the
Federal Republic of Nigeria, 1979 and now through section 42 of the 1999
Constitution (as amended) which provides that no citizen of Nigeria shall be
subjected to any disability or deprivation merely by reason of the
circumstances of his birth.”
Conclusion
Whilst
it is conceded that it might be emotionally traumatizing for the children of a
deceased who were born within a legitimate wedlock to recognize the rights of
their siblings who were born out of wedlock when applying for letters of
administration, it is important to state that the failure to recognize the
rights of the children born out of wedlock can lead to the nullification of any
letters of administration, which was obtained without their knowledge, consent
or input.
it is conceded that it might be emotionally traumatizing for the children of a
deceased who were born within a legitimate wedlock to recognize the rights of
their siblings who were born out of wedlock when applying for letters of
administration, it is important to state that the failure to recognize the
rights of the children born out of wedlock can lead to the nullification of any
letters of administration, which was obtained without their knowledge, consent
or input.
In
the case of Mgbodu v.
Mgbodu (Supra) the Court of Appeal set aside the letters of
administration which was granted to the Appellant and his mother because they
refused to include the Respondent’s name as one of the children of the deceased
in the application for letters of administration on the ground that he was born
out of wedlock.
the case of Mgbodu v.
Mgbodu (Supra) the Court of Appeal set aside the letters of
administration which was granted to the Appellant and his mother because they
refused to include the Respondent’s name as one of the children of the deceased
in the application for letters of administration on the ground that he was born
out of wedlock.
Therefore,
it is important for the beneficiaries of an intestate person to adopt the
consensual approach to the administration of the estate and distribution of the
assets of the deceased in order to prevent a protracted and unnecessary
litigation over the assets of their deceased parent.
it is important for the beneficiaries of an intestate person to adopt the
consensual approach to the administration of the estate and distribution of the
assets of the deceased in order to prevent a protracted and unnecessary
litigation over the assets of their deceased parent.
It should be noted that this article is for general
information only. It is not offered as advice, on any particular matter,
whether legal, procedural or otherwise. If you have any questions about this
article, please contact the author.
information only. It is not offered as advice, on any particular matter,
whether legal, procedural or otherwise. If you have any questions about this
article, please contact the author.
By: Faruq Abbas
Managing Partner at Abdu-Salaam Abbas & Co.