Thursday, 19 September 2019

THE LEGAL EFFECT OF NOMINATING A NEXT-OF-KIN OR A BENEFICIARY AT A BANK OR WORK PLACE( ONLINE BANKING, BANKING AND THE LAW) A CASE STUDY

THE LEGAL EFFECT OF NOMINATING A NEXT-OF-KIN OR A BENEFICIARY AT A BANK OR WORK PLACE...

BY AWARI PRINCE

In certain online transactions involving banks, and a beneficiary to whom a transaction is favoured, there is usually a pop-up option inquiring whether you want to retain that person in whose favour the transaction was made as a beneficiary or a next-of-kin. Another popular requirement is the provision of the contact of a next-of-kin when filling a bank form or at work place. The question then is what is the legal implication of clicking on that yes button and accepting to retain that person as a next-of-kin or a beneficiary especially when a person dies or cannot be found in relation to the persons estate or the distribution thereof.

Generally, the devolution or distribution of the estate of a deceased is governed by the Administration of Estate Law/Act or the Will act/law depending on whether he died Interstate or testate.

The law is that when a person dies testate (living a will) the estate of that person is distributed in accordance with that will provided it meets the condition of a valid will as stated in section 9 of the Wills Act 1837. On the flip side, where the deceased died intestate, the estate is distributed in line with the Administration of Estate Law/Act, Customary law, or Islamic law as the case may be.

Thus it is Crystal clear that to inherit the estate of a deceased, one must be stated as a beneficiary in the will of the deceased or must be so entitled under Customary law, Islamic law or the Administration of Estate Act/or laws of various States as the case may be. And not the mere selection in the course of online banking transactions or by the filling of bank forms.


Furthermore, the law to be applicable in distributing the estate of the deceased shall be determined by the incidence of marriage of the deceased. If a deceased contracted a statutory marriage, succession to his estate will be effected in accordance with either the English law ( which include the statute of general application or domesticated English law) or the Administration of Estates Act/Law (or equivalent legislation), depending on the jurisdiction. See Jadesimi v Okotie-Eboh (1996)2 NWLR ( pt.429) 128 Obuzez v Obuzez (2007) 10 NWLR (Pt. 1043) 430.

For instance under English Law and section 49 of the Administration  of estate laws of Lagos State and the equivalent provisions in various state laws, the surviving spouse together with the children of the deceased inherit his estate to the exclusion of every other person. The parents of the deceased takes next after the surviving spouse and children, followed by brothers and sisters of the full blood, brothers and sisters of half blood, grandparents, aunties and uncles of full blood relation to the parents of the deceased etc. See Kekereogun & Ors v. Oshodi (1971) LPELR-1686(SC) subject however to contrary provisions under the administration of estate laws of various states.

Where however the deceased contracted a customary marriage, then customary law will determine who will inherit the property of the deceased. That is to say in the circumstance, heirs are those who are under native law and custom entitled to inherit his estate. For Muslims, Islamic law determines who to inherit the deceased estate.

Therefore, under the Nigerian law of intestate succession, one cannot choose his heir under the pretext of next-of-kin; the law imposes heirs on him. For example it is the surviving spouse and children of an intestate who married under the Act that are his heirs. The deceased cannot therefore exclude the rest of his dependants or relatives by naming only one of them or any of his other blood relatives his next-of-kin in a bank form or at work place. Without so doing in his will or in case where Custom apply as being in line with the Custom.

It is thus pertinent to note that there is nothing special about next-of-kin as far as succession is concerned.  Next-of-kin is merely the first contact point if anything happens to you. He is someone empowered to make decisions for you in times of emergency or where you are not readily available or unable to make the decisions yourself. He is someone empowered to provide necessary information about you where needed such as confirming your identity. He is also someone positioned to make medical decisions such as providing consent for a medical procedure. At best, what a next-of-kin can do after the demise of the deceased is perhaps to ensure that necessary steps are taken towards obtaining letter of administration from the probate. The typical Nigerian's conception of the term, "next-of-kin" is therefore erroneous.

A next-of-kin can inherit only if he is named in a Will as a beneficiary or by his status he is entitled by law to inherit but not actually because he is named as the next-of-kin of the deceased in a bank or place of work.

2 comments:

  1. A wonderfully written piece Awari...

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  2. Wao, very clear. Now I understand the whole essence very well. Thank you and God bless the writer.

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