INTRODUCTION
The dependents of a deceased person (testator) can contest his Will, where they believe that reasonable financial provision(s) has not been made for them in the Will. This issue has been provided for, under the extant laws1 regulating the disposition of a person's properties. Thus, the law allows certain categories of individuals to challenge a Will, where they have not been adequately provided for under the Will.
On 29th February 2024, an uproar ensued across multiple media outlets following a post by a social media influencer (Morris_Monye) on his X handle (formerly Twitter). According to the post, a man's 'side-chick' who had been receiving monthly allowance from the man before his death could contest his Will in court if no financial provisions were made for her, provided she could present the relevant bank statement as evidence. This article seeks to examine the propriety or otherwise of the above opinion in law using the Wills Law of Lagos State as a case study.
THE PROVISION FOR FAMILY AND DEPENDANTS
A Will is simply defined as a testamentary document or instrument voluntarily made and executed by a testator with testamentary capacity in accordance with the law wherein he disposes of his properties. In Odunewu v. Agoro,2 the Supreme Court held that "A "Will" is the legal expression of an individual's wishes about the disposition of his or her property after death; especially, a document by which a person directs his or her estate to be distributed upon death. It is the declaration in a prescribed manner of the intention of the person making it with regard to matters which he wishes to take effect upon or after his death."
The above definition resonates with the provisions of Section 1 (1) of Wills Law3 which provides that "it shall be lawful for every person to bequeath or dispose of, by his will executed in accordance with the provision of this law, all property to which he is entitled, either in law or in equity, or at the time of his death, Provided that the provisions of this Law shall not apply to any property which the testator had no power to dispose of by will or otherwise under Customary Law to which he was subject." Flowing from the above, it can be deduced that the disposition of a person's property is at his whims and caprices. Thus, he has the unilateral powers to dispose of or bequeath his properties to whoever he chooses including a stranger. The only exception to these powers is with respect to property which he has no powers to dispose of by Will due to his custom.4
Notwithstanding the above, the law has also made provisions for dependents of a testator to apply to Court for an order for financial provision, where the Will did not make reasonable financial provision for them. Not only that, the law also goes further to expressly provide the category of persons that can make such application. Section 2 of the Wills Law5 provides thus:
"(1) Notwithstanding the provisions of section 1 of this Law, where a person dies and is survived by any of the following persons—
(a) the wife or wives or husband of the deceased; and
(b) a child or children of the deceased—
that person or those persons may apply to the court for an order on the ground that disposition of the deceased estate effected by his will is not such to make reasonable financial provision for the applicant.
(2) In this section "reasonable financial provision" in the case of an application made by virtue of subsection (1)(a) of this section by the husband or wife or wives of the deceased (except where the marriage with the deceased was subject of a decree of judicial separation in accordance with any Customary Law and at the date of the death the decree was in force and the separation was continuing, means such financial provision as it would be reasonable in all the circumstances of the case for husband or wife or wives to receive, whether or not that provision is required for his or her maintenance.
(3) An application under this section shall be exercisable only within a period of six months from the grant of the probate." (Underlining ours)
From the above provisions of the law which are in tandem with the provisions of the Wills laws of various States, it is clear that the persons who can apply to the court for an order for reasonable financial provision are to wit: the wife or wives or husband of the deceased; and a child or children of the deceased. A cursory look at the provisions of the law shows that the word "side chick" is expressly omitted and thus, it could be said that it was not intended – expression unius est exclusion alterius. In Mkpa v. Mkpa,6 the Court of Appeal enunciated that "where a statute mentions specific things, those things not mentioned are not intended to be included. In the instant case, the words used by the lawmakers in sections 7, 8, and 10 of the Traditional Rulers law, 1978 of Cross River State are quite clear, precise, and unambiguous."
Similarly, in Elias v. F.R.N,7 the Supreme Court enunciated that "a cardinal principle that guides interpretation or construction of a statute is that its provisions are not to be construed or interpreted by placing a gloss on them by importing thereto words or matters extraneous to the provisions. The words of a statute are to be given their ordinary meaning and a court, when interpreting a statutory provision, must give the words and language used in the provision their simple ordinary meaning, without venturing outside the provision to introduce extraneous matters that may lead to circumventing or giving the provision an entirely different interpretation from what the lawmaker intended it to be. In other words, it is not permitted, in interpreting a statutory provision, for the court to either add words thereto or take words therefrom. This is because courts do not make laws. They merely interpret and declare the law as made by the legislature. In its interpretative duty, a court of law merely brings out only the clear intention of the lawmaker."
Worthy of note is the fact that the said post by Morris_Monye on his X handle relied heavily on the provisions for beneficiaries and dependents under the Wills Law. According to him, "if as a man, you die and you leave a Will for your family, your side-chick can contest that Will if and if she can prove in court that you've been sending her money monthly via bank statement. Provisions are made for beneficiaries and dependents. I'm just learning this now now." Having perused the law and given the analysis above, we fail to see how a side chick can contest a Will on the ground that the testator being her "Sugar Daddy" did not make reasonable financial provisions for her in the Will. Thus, the provision of her bank statement in court to establish that the said Sugar Daddy had been sending money to her monthly is extraneous and of no moment.
Furthermore, considering the nature of the relationship that existed between the side chick and the testator, it is our view that the court will refrain from enforcing such a claim by a side chick for reasonable financial provisions on the ground that enforcing same may corrupt public morals.8 In Oshiomhole v. F.G.N,9 the Court of Appeal enunciated that "no court will lend its aid to a man who found his cause of action on an immoral or an illegal act."
Assuming without conceding that the side chick has a child for the testator, the provisions of Section 26 of the Wills Law10 will come into play here. Section 26 of the Wills Law defines a child to "includes a child whose paternity has been acknowledged in accordance with the Customary Law applicable in the State, a child adopted whether before or after the commencement of this Law in pursuance of an adoption order made under the Adoption Law, Cap. A5, Laws of Lagos State, and a child legitimated under the Legitimacy Law Cap. L65, Laws of Lagos State." Flowing from the above and considering the ongoing debate on the issue of legitimacy of a child, it may not also be right to say that once a side chick has a child for the testator, she can automatically bring an application for reasonable financial provision in the Will. Notwithstanding the above, a side chick who has a child for the testator may in her capacity as best friend of the child and a person in loco parentis, bring an application for reasonable financial provision in a Will, citing Section 42(2) of the Constitution.11 Section 42(2) of the Constitution12 provides: "no citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth." The Constitution being the grundnorm may operate in this case to empower a side chick who has a child for the testator to apply to the court for reasonable financial provision in the Will in favour of the child. We will not venture deep into this aspect as same is not within the scope of our topic for discussion in this article.
However, the position that a side chick can apply to the court for an order for reasonable financial provision in a Will on the ground that prior to the death of the testator, she was being maintained by the testator may be obtainable in other jurisdictions such as the United Kingdom(UK). In UK, Section 1 of the Inheritance (Provision for Family and Dependants) Act 197513 provides:
"(1) Where after the commencement of this Act a person dies domiciled in England and Wales and is survived by any of the following persons:—
(a)the spouse or civil partner of the deceased;
(b) a former spouse or former civil partner of the deceased, but not one who has formed a subsequent marriage or civil partnership;
(ba) any person (not being a person included in paragraph (a) or (b) above) to whom subsection (1A) below applies;
(c) a child of the deceased;
(d) any person (not being a child of the deceased) who in relation to any marriage or civil partnership to which the deceased was at any time a party, or otherwise in relation to any family in which the deceased at any time stood in the role of a parent, was treated by the deceased as a child of the family;
(e) any person (not being a person included in the foregoing paragraphs of this subsection) who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased;
that person may apply to the court for an order under section 2 of this Act on the ground that the disposition of the deceased's estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant."
From the above, it is clear that the provisions of the law in UK is broad enough to accommodate an application to court by a man's side chick for reasonable financial provisions where her financial needs were not met in his Will. While this position may be possible in Uk and some other jurisdictions, it is not in Nigeria as of today, until same is incorporated into the Nigerian legal system either by legislative enactment or judicial pronouncement.
CONCLUSION
In the event of a person's demise, the law empowers the dependents of such a person to apply to the court for an order for reasonable financial provision where they perceive that the Will of such a person did not reasonably provide for their financial needs. The law also enumerated the category of persons that can bring this application as discussed above. Having reviewed the law on this issue, it is our view that in Nigeria, it is nearly impossible for a side chick to legally challenge a Will solely on the argument that the deceased did not adequately provide for her financial needs in the Will.
Footnotes
1. The Wills Act 1837; The Wills Act (Amendment) Act 1852; The Wills Laws of various States, such as the Wills Law Chapter W2 Laws of Lagos State; The Administration of Estates Law of various States and so on.
2. (2022) 7 NWLR (Pt. 1830) 545
3. The Wills Law Chapter W2 Laws of Lagos State
4. For instance, in Benin kingdom, the eldest surviving son of a Bini man is entitled to the Igiogbe which is the house in which the deceased lived and died in
5. Ibid
6. (2010) 14 NWLR (Pt. 1214) 612
7. (2021) 16 NWLR (Pt. 1800) 495
8. Shaw v. DPP (1961) UKHL 1 (04 May 1961)
9. (2007) 8 NWLR (Pt. 1035) 58
10. Ibid
11. 1999 Constitution of the Federal Republic of Nigeria (as amended)
12. Ibid
13. The Inheritance (Provision for Family and Dependants) Act 1975
To view original Tope Adebayo Article, please click here.
Originally published March 11, 2024
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.