ABSTACT
The Armed Forces Act (Cap A20) Laws of the federation of Nigeria 2004 is presently the Military Law regulating the Nigerian Armed Forces which consist of the Army, Airforce and Navy. The Act virtually embodied of testate and intestate procedures for the Administration of estate of deceased Military Personnel. This research basically examine the status and duties of Personal Representatives not appointed by a Will of Service Personnel but recognized under the Act (e.g Next-of-Kin or Claimants of Service Personnel). The research was conceived pursuant to misconception regarding the status and duties of Next-of-Kin/Personal Representative. This misconception was borne out from the Next-of-Kin appointment provisions under the Act. The provisions are to the effect that, money or Personal Property of Deceased Personnel may be paid or delivered of Next-of-Kin or Claimants. The Act was silent on what next the receivers of such estate will do after the delivery of the estate of him/her. This silence was the factor for the erroneous belief that a Personal Representative of a Deceased Personnel is the sole beneficiary of the estate of the deceased. Such believe was the cause of conflicts between appointed Next-of-Kin and the heirs of Deceased Personnel, which have resulted in series of petitions against of Next-of-Kins. Consequently, this dissertation aimed at examining the nature of Will under the Armed Forces Act and critically examine the status and duties of Personal Representatives under the testate and intestate succession. In this work, both doctrinal and empirical approach was adopted. The doctrinal research was achieved by the study of the Armed Forces Act, textbooks, Journals, correspondence and petitions from heirs of Deceased Service Personnel. The empirical approach was carried out through the preparation and distribution of questionnaire and analysis of data. The result showed that 45 out of the total of 100 respondents (52.9%) were of the view that Next-of-Kin is the sole beneficiary of the estate of Deceased Service Personnel. The work therefore recommended that, the status and duties of a Personnel Representative such as representing the deceased in all matters of the deceased entitlements and welfare of the deceased family, keeping a constant touch with the unit of the deceased on matters of the deceased family and briefing them accordingly, collecting any entitlements of the deceased Personnel when paid or delivered to him by the appropriate authority and presenting such entitlements to the family of the deceased or appropriate body or institution for onward distribution to the deceased heirs in accordance with the custom or tradition of the deceased Personnel, should be expressly stipulated to ambiguous circumstance on the status of Next-of-Kin.
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TABLE OF CONTENTS
Title Page……………………………………………………………………………i
Declaration…………………………………………………………………………ii
Certification…………………………………………………………………..……iii
Dedication………………………………………………………………………….iv
Acknowledgements…………………………………………………………………v
List of Cases………………………………………………………………………vii
List of Statutes……………………………………………………………………viii
List of Abbreviation…………………………………………………………………x
List of Tables………………………………………………………………………xi
Abstract……………………………………………………………………………xii
Table of Contents………………………………………………………………….xv
CHAPTER ONE: GENERAL INTRODUCTION
1.1 Background of the Study……………………………………………………1
1.2 Statement of the Research Problem…………………………………………3
1.3 Aim and Objectives of the Research…………………………………………4
1.4 Justification of the Research…………………………………………………5
1.5 Scope of the Research……………………………………………………….6
1.6 Research Methodology………………………………………………………6
1.7 Literature Review ……………………………………………………………7
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CHAPTER TWO: TESTATE SUCCESSION UNDER THE NIGERIAN MILITARY LAW.
2.1 Introduction…………………………………………………………………13
2.2 Definition of a Will…………………………………………………………14
2.3 Nature of a Will under the Armed Forces Act………………………………15
2.4 Formal Requirements of a Will under the Armed Forces Act……………..16
2.5 Testamentary Power under the Armed Forces Act…………………………18
2.6 Mental Capacity and other vitiating Elements……………………………20
2.7 Appointment, Number and Duties of Executors……………………….…..23
2.8 Revocation and Alteration of Will………………………………………..32
2.9 Functions of Codicils ………………………………………………………35
2.10 Conclusion………………………………………………………………….37
CHAPTER THREE: INTESTATE SUCCESSION UNDER THE NIGERIAN MILITARY LAW
3.1 Introduction…………………………………………………………………38
3.2 The Nature of Intestate Succession under the Armed Forces Act………….38
3.3 Payment of Debts of Deceased Service Personnel…………………………41
3.4 Distribution subject to right of Creditors…………………………………..43
3.5 Deceased Personnel‟s money undisposed of, to constitute a fund …………44
3.6 The Armed Forces Act and Succession under Customary Law……………45
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3.7 The Analysis and Interpretation of Data on the perception of some members of the Armed Forces on the status of NOK/Personal Representative……..55
3.8 Conclusion………………………………………………………………………60
CHAPTER FOUR: ADMINISTRATION OF ESTATE OF DECEASED MILITARY PERSONNEL UNDER THE ARMED FORCES ACT
4.1 Introduction…………………………………………………………………61
4.2 The Appointment and Duties of an Executor under the Armed Forces Act.62
4.3 The Appointment of NOK/Personal Representative under the Act………..68
4.4 The Legal issues on the Appointment of NOK vis-à-vis Duties of Personal Representatives and claimants under the Act………………………………70
4.5 The intricacies of NOK/Personal Representative Appointment……………83
4.6 Duties of a Personal Representative under the Armed Forces Act…………88
4.7 The Determination of heirs of Deceased Service Personnel under the Act..
4.8 The Modes of Distribution of an Intestate Estate under the Act…………..89
4.9 Do Personal Representative under the Act needs a Grant of Representation or Letters of Administration of Estate……………………………………..92
4.10 Jurisdiction of Sharia and Customary Courts on Succession Matters ……..95
4.11 Conclusion………………………………………………………………………97
CHAPTER FIVE: SUMMARY, CONCLUSION AND RECOMMENDATIONS
| 5.1 | Summary ……….………………………………………………………….98 |
| 5.2 | Findings…………………………………………………………………100 |
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5.3 Conclusion…………………………………………………………………103
5.4 Recommendations…………………………………………………………104
Bibliography………………………………………………………………106
Appendix…………………………………………………………..…….108
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CHAPTER ONE
GENERAL INTRODUCTION
1.1 Background of the Study
Under the Nigerian Law, a Military Personnel is subject to two Laws (i.e) the Nigerian Military Law and Civil Law. Thus the administration of estate of deceased military personnel will be considered in this perspective. Generally, administration of an estate involves realising the moveable assets and paying out of them any debts and other claims against the estate. It also involves the division and distribution of what remains 1. Conversely, in this research, it involves the division and distribution of testate and intestate estate of deceased military personnel under the Nigerian Military law. The Armed Forces Act2 is presently the major statute regulating the Nigerian Armed Forces.
Under the Civil Law, the laws governing the administration of the estates of deceased persons in Nigeria differ according to states, the applicable law depends on whether a state within the region concerned now has its own wills law and administration of estates law. Although some states have now enacted their own laws, notwithstanding these developments, it is pertinent to state that most of the states in Nigeria today still apply the pre 1900 English law with minor modifications.
1Garner, B.A.,(2004)“Black‟s Law Dictionary.” Thomson west, u.s, Eight Edition p. 46
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Fundamentally, when a military personnel dies, two issues arise in relation to his property or estate depending on whether he died testate or intestate. A military personnel dies testate if at the time of his death, he has a valid will by which he disposed of his property. He dies intestate if he had no will at all, or if his will turns out to be invalid. In either case, the Armed Forces Act has provision for the administration and distribution of the estate of deceased military personnel however, where there is gap in the Armed Forces Act, the Administration of estate laws, Customary laws or Islamic law may apply as the case permits. Note generally that, the Administration of estate laws in Nigeria consist of the Administration of estate laws made by the various states in Nigeria, including the Customary laws of succession which are the various native laws and customs in Nigeria and Succession under the Islamic law which is hinged upon two pillars – the “Mirath” and the “Wasiyyah”. The Mirath covers the entire aspects of intestate succession under the Islamic Law and gravitates to lay a firm foundation for the procedure of Wasiyyah (i.e) the testate succession which allows the Muslims to devise of not more than one-third of their estate as testamentary gifts.3
The making of a Will under the Armed Forces Act is an optional Phenomenon. Where a Will is not made by a service personnel, the customary laws of succession of the tribe of the deceased personnel applies. Where the deceased is a Muslims, Islamic law applies. However, where a Will is made, the
3Abdulrashid, Y., &Okoh, S.E.E., (2011) Succession under Islamic Law,Malthouse Press Limited, Lagos P. 3
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distribution of estate of the deceased is guided by the Will. Under the Armed Forces Act, a service personnel may wish to pass his proprietary rights such as death benefit, gratuity, allowances and any money he is entitled to, to his survivors and successor‟s in title by a Will. This is simply made by writing and signed or acknowledged by the maker in the presence of an officer of the forces or government medical officer.
The role of Personal Representative in testate and intestate succession is vital to the Administration of estate. It is on this note that, the research seeks to examine the appointments and duties of Executor of a Will and Administrators of intestate estates. The research will also critically examine the intricacies behind the appointments of Personal Representatives, such as: the appointment of brothers or uncles as Personal Representative/Next of Kin, the appointment of underaged persons as Personal Representative and so on.
1.2 Statement of the Research Problem
This research is conceived pursuant to the various misconceptions regarding the status and duties of persons whose names were registered as Next of Kin (NOK) of service Personnel and those who are considered as “claimants” of deceased service Personnel estate (who died without having NOK or has not made a will).This misconception was borne out from the wordings of sections 275 (3) and 277 (1) of the Armed Forces Act. The provisions are to the effect that, money or personal property of deceased personnel may be paid, or
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delivered to such persons. The Act was silent on what next the receivers of such estate will do after the delivery of the estate, particularly, when the receivers may not be the executors of the deceased if he has made a will or may not even be part of the heirs of the deceased personnel; the receivers may not equally be the sole heirs of the deceased where a will was not made; hence, the need for the critical examination of such status and duties.
1.3 Aim and Objectives of the Research
The aim of this research is to examine testate and intestate succession under the Armed Forces Act. The objectives are as follows:
- To examine the Nature of a will under the Armed Forces Act.
- To critically examine the legal status and duties of Personal Representatives under the testate and intestate succession.
- To address the misconceptions regarding the status and duties of personal representative as sole beneficiary of deceased service personnel.
- To suggest administrative means of preventing conflict between the legal heirs of deceased personnel and NOKs/personal representative.
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1.4 Justification of the Research
The basic issues under the Armed Forces Act regarding succession as its relates to Next of Kin/Personal representative whom the estate of a deceased Personnel will be delivered to, upon the demise of the Service Personnel, was that, the status and duties of such Personal representative were not expressly stipulated under the Armed Forces Act. (The Act was silent on the status and what duties expected of a Personal representative when such estate is delivered to him/her). These shortcomings in many instances caused the erroneous believe that a Personal representative of a deceased service Personnel is the sole beneficiary of the estate of the deceased. Such erroneous believe was the cause of conflicts between the NOKs and the heirs of deceased Personnel. These conflicts have resulted in series of petitions by the family members of deceased personnel against NOK/Personal Representatives. For instance, few among those conflicts recorded in 2017 include the following; firstly, the petition of Mrs Ladi John Gambo, wife of late 79NA/13433 Warrant Officer John Gambo forwarded on the 4th June 2017 to the Chief of Amy staff against Mr. Lucky John (NOK) and brother of the late Warrant Officer whom was paid the sum of N7,811,752.62 but never shared same to the heirs of the late Warrant Officer. Secondly is the petition of Miss Halimatu Ibrahim Ubale, daughter of 79NA/21562 Warrant Officer Ibrahim Ubale forwarded on the 22 February 2017 to the Commander 81 Military Intelligence Brigade against Mr. Hussaini
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Abdullahi (NOK) of her late father who collected the burial expenses N500,000 and 3 months‟ salary N300,000 but assumed the ownership of same. Thirdly, is the petition of Aisha Olabode Isiaka wife of late 05NA/56/917L/CPL Olabode Paul Osinlu forwarded on the 15 May 2017 to Army Headquarters Department of Army Administration against the first wife of the late soldier and the NOK as well, who allegedly denied the petitioner and her daughter the entitlements of the late soldier, simply because she is the NOK. It is in view of these and other several cases, that thisstudy is necessitated.
1.5 Scope of the Research
The scope of this proposed research will be limited to Administration of Estate under the Armed Forces Act. In this regard, testate and intestate succession under the Armed Forces Act will be discussed. Under these key subjects, the status and duties of executors under a will and administrators under an intestate succession will be considered. Subsequently, the research will examine the relevancy of a Grant of Representation and letters of Administration to Personal Representatives under the Armed Forces Act.
1.6 Research Methodology
The methodology to be adopted in this research work is mostly doctrinal. Reliance will be made on the Armed Forces Act, textbooks, journals, case law and other relevant materials. Questionnaires will also be used/issued to some
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Personnel, dependant of the deceased personnel who were affected and Deputy Directors Legal Services at Division level where cases or conflicts involving distribution of Deceased Service Personnel property are being handled.