How preference for ‘next of kin’ in estate claims can be challenged in court

BY ADEBAYO ADEKOLA

Some banks, pension fund administrators, registrars, employers, and insurance companies usually insist they would only attend to next of kin for claims to a deceased person’s estate. They ignorantly exhibit this faulty preference for next of kin in their list of requirements on their various websites and other platforms.

Sadly, this ignorance is boldly implemented by the processing staff. They refuse superior legal education on the laws and their application. Some of them would further refuse to attend to, give, or release relevant documents required for estate claims because the personal representatives are not named as next of kin in their record of the deceased regardless of the personal representatives presenting letters of administration and grant of probate. This is considered by most personal representatives and beneficiaries as one of the downsides of the process of claiming the estate of a deceased.

This article is aimed at correcting this faulty stand and ensuring a better estate claim process. Hence, a critique would be appreciated.

In Nigeria, a person’s assets also referred to as ‘‘estate of a deceased’’, are held temporarily by institutions; like banks for monies in the bank, pension fund administrators for pensions, registrars for securities, retirement benefits by employers, and insurance companies for some insurance policies. Usually, these assets, in whole or in part, are released to the owner while he or she is alive, at his or her request. When the owner dies, the assets are released to his or her personal representative(s) in accordance with the provisions of relevant laws.

For instance, Part 1, sections 1 to 4 of the Administration of Estates Act, and Part 2, sections 3(1) to 3(3) of the Administration of Estate Law of Lagos State provide that all property in which a deceased person was entitled to an interest not ceasing on his death shall, on his death and notwithstanding any testamentary disposition thereof, devolve from time to time on the personal representatives of the deceased.

Section 53(1) of the Administration of Estates Act states that where the intestate during his lifetime takes out a life insurance policy or contributes to any social security scheme, superannuation fund, or provident fund, the right to the benefit of such insurance policy, social security scheme, superannuation fund, or provident fund shall devolve on the personal representatives as part of the estate of the intestate.

Section 8 of the Pension Reform Act 2014 provides that where an employee dies, his entitlements under the life insurance policy maintained under section 4(5) of this Act shall be paid by an underwriter to the named beneficiary in line with section 57 of the Insurance Act. Upon receipt of a valid will admitting probate or letter of administration confirming the beneficiaries under the estate of the deceased employee, the pension fund administrator shall, with the approval of the commission, release the amount standing in the retirement savings account of the deceased to the personal representatives or to any other person as may be directed by a court of competent jurisdiction in accordance with the terms of the will or personal law of the deceased employee, as the case may be.

Section 263(1) of the Investment and Security Act 2007 provides that if within six months of the death of a person who was entitled to a registered bond or securities, the nominal or face value of which does not in the aggregate exceed N5,000, probate of the will or letters of administration of the estate of the deceased person is not produced to the registrar, the registrar may, after such inquiry as he may deem necessary, determine which person is entitled to such bond or securities.

All the above simply implies that ‘’personal representatives’’ shall be the representatives of the deceased with regard to any property to which he was entitled to an interest not ceasing on his death.

Section 2 of the Administration of Estates Act of Lagos State indicates that ‘‘personal representative’’ means the executor, original or by representation, or the administrator for the time being of a deceased person. Section 3(2) confirms that personal representatives for the time being of a deceased person are deemed in law to be his heirs and assigns within the meaning of all trusts and powers.

Section 1I of the Administration of Estates Law states that the personal representatives of a deceased person shall personally be under a duty to collect and act on the estate of the deceased and administer it in accordance with the law. In Section 58, “administration” means, with reference to the estate of a deceased person, letters of administration, whether general or limited, or with the will annexed or otherwise; “administrator” means a person to whom administration is granted.

Person(s) recognised by law that could benefit from the estate of the deceased are referred to as ‘’beneficiaries’’, and according to the second schedule of the Administration of Estates Law, the wife, husband, children, parent, siblings, and grandchildren are recognised as probable beneficiaries where there is no will. Where there is a will, the beneficiaries would be the named persons against a named asset.

Nowhere in the laws cited above was a next of kin placed over and above the personal representatives or the beneficiaries of a deceased. In the case of Miss Afiniki Sambo vs. Mr Ignatius Ojiji and ARM Pensions Managers Limited FCT/HC/1658/2019, the court defined next of kin and cited Joseph vs Fajemilehin O.O & Anor (2012) LPELR 9849 (CA) per EKO JSC, Paragraphs A-B, where he said: “A next of kin, by definition, is the person declared to be the nearest of kindred to the declarant.”

The implications of the above are that anyone, including beneficiaries, and personal representatives, could be named a next of kin by the deceased while alive. The laws, case laws, and definitions above do not ascribe any absolute right or entitlement to a person named as a next of kin to a deceased person’s asset. If a named next of kin is not a probable beneficiary or personal representative where there is no will, such a person cannot benefit from or administer a deceased’s estate by virtue of being a next of kin. Where there is a will, such a person cannot benefit from the estate or act as executor unless he or she is named a beneficiary or executor in the will.

Also, any preference for a next of kin by any institution and refusal to attend to, give, or release relevant documents required for estate claims because the personal representatives are not named as next of kin in its record of the deceased regardless of the personal representatives presenting letters of administration and grant of probate can be successfully challenged in a competent court of law in Nigeria.

Adebayo Adekola, team lead/founder, Taitum Legal Practitioners, can be reached via [email protected]