Introduction
What or Who is a Next of Kin?
The term next of kin, usually refers to a person’s closest living relative(s). Individuals who count as next of kin include those with blood relation, such as children, or those with a legal standing, such as spouses or adopted children.
The Eighth Edition of the Black Law’s Dictionary defines a next of kin to be- a person or persons closely related to a decedent (recently dead person) by blood or affinity.
Another definition is an intestate’s heir- that is, the person or persons entitled to inherit personal property from a deceased person who has not left a will; i.e dying intestate.
Next of Kin was defined in the case of JOSEPH v FAJEMILEHIN O. O & ANOR (2012) LPELR-9849(CA) as follows:
“next-of-kin”, by definition, is the person declared to be the nearest of kindred to the declarant, in this case the 2nd Respondent. See Black’s Law Dictionary and Chambers 20th Century English Dictionary.” Per Ejembi Eko, JCA (Pp 34 – 34 Paras A – B)
See also the case of MOHAMMED v TIJANI (2021) LPELR-54215 (CA).
A person’s next of kin often takes precedence over others in inheritance matters, especially where a person dies intestate. Inheritance rights use the next of kin relationship for anyone who dies without a will, leaving no spouse or children. Surviving individuals may also have responsibilities, during and after their relative’s life. For example, the next of kin may need to make medical decisions if the person becomes incapacitated, or take responsibility for his/her funeral arrangements and financial affairs after their relative dies.
Jurisdiction Over Next of Kin
Under English Law, Islamic law and the Administration of Estate Laws of various States in Nigeria, the surviving spouse together with the children of the deceased inherit his estate, to the exclusion of every other person. Then the parents of the deceased take 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; and finally relation to the parents of the deceased, etc. This was the position in KEKEREOGUN & ORS v OSHODI (1971) LPELR-1686 (SC), subject however to contrary provisions under the Administration of Estate Laws of various States. The specifics of determining the next of kin and inheritance, vary from jurisdiction to jurisdiction. Matters involving inheritance in certain countries, such as the United Kingdom, are handled in accordance with various succession laws. In other countries, next-of-kin laws are in place for settling the estates of people who die intestate.
Line of Inheritance
In the absence of a surviving spouse, the person who is next of kin inherits the estate. The line of inheritance begins with direct offspring, starting with their children; then their grandchildren; followed by any great-grandchildren; and so on. The legal status of stepchildren and adopted children, varies by jurisdiction. If the deceased had no offspring, the line of inheritance moves upward to their parents. If the parents are no longer alive, collateral heirs (brothers, sisters, nieces, and nephews), are next in line.
How does Next of Kin Work in Nigeria?
Under the Administration of Estate Laws in some States in Nigeria, a beneficiary of the deceased estate need not be a next of kin, but be a legitimate inheritor of the deceased estate. This was decided in the case of ONUKOGU v NWOKOLO & ANOR (2021) LPELR-55185 (CA), where the Appellate court stated that:
“Sections 2 and 3 of the Administration of Real Estate Law Cap 2 Laws of Kano State provide thus: “2. When any person shall die intestate after the commencement of this law leaving any real property of whatsoever nature of which the intestate might have disposed by will, such real property shall for purposes of administration be deemed to be part of the personal estate of the said intestate and shall be administered accordingly … 3. When a person dies intestate possessed of real estate, the Court shall, in granting letters of administration, have regard to the rights and interests of persons interested in his real estate, and his heir-at-law, if not one of the next of kin shall be equally entitled to the grant with the next of kin”.
This provision is replicated in most Administration of Real Estate Laws in most States in Nigeria.
“Next of Kin” and Mode of Inheritance
When one states his next of kin to a financial institution, his financial assets do not immediately go to the next of kin. It simply means that they are the first point of contact if something should happen to such a person. The next of kin is supposed to be a trusted person that you know will do the right thing and ensure that all processes are done correctly in the case of emergency. Under English Law and the Administration of Estate Laws of various state, 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 take 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. This was the position in KEKEREOGUN & ORS v OSHODI (Supra), subject however to contrary provisions under the administration of estate laws of various States. The Supreme Court explained how to determine the next of kin of a deceased as follows, in the above mentioned case:
“The only matter on this appeal, is to determine who are the next-of-kin of the deceased. The rules governing the rights to administration in Nigeria in the circumstances of this case, are the rules in England where death occurred there before 1926 and are set out on pages 166 and 167 of Williams on Executors and Administrators 13th Edition as follows: “In the first place the children and their lineal descendants to the remotest degree, and on failure of children, the parents of the deceased are entitled to the administration; then follow brothers and sisters, then grandfathers and grandmothers, then uncles or nephews, great-grandfathers and great and lastly cousins” “When the contest is between one of the half blood, the whole blood is preferable in the grant of administration to the half-blood, though the majority of interests concur in the latter, unless material objections can be proved against the claimant of the whole blood.” In our view, there can be no question that as between the 1st, 2nd and 3rd defendants who are half-brothers of the deceased and the plaintiff who is his cousin, the 1st, 2nd and 3rd defendants as next-of-kin, have the right to administration.” Per Charles Olusoji Madarikan, JSC (Pp 7 – 8 Paras B` – A)
The Locus Standi of a Next of Kin
The phrase ‘Locus standi’ was defined in the words of Nwali Sylvester Ngwuta, JSC in the case of ADETONO & ANOR v ZENITH INTL BANK PLC (2011) LPELR-8237(SC), as follows:
“Locus standi to maintain an action in trespass in the context of this case, means the same thing as “sufficient right and/or interest to maintain an action. for acts of trespass…” What, then is Locus standi? The term, locus standi, has been defined inter alia, as the right of a party to appear and be heard on the question before any Court or tribunal. See Senator Abraham Adesanya v President of the Federal Republic of Nigeria & Anor (1981) 5 SC 112 at 28-129 per Fatayi Williams, CJN (as he then was); Ogunsanya v Dada (1992) 4 SCNJ 162 at 168; Gombe v. P.W Nig. Ltd. (1995) 7 SCNJ 19 at 32″.
It is pertinent to state that for an action to be competent, such an action must be instituted by a party recognised as juristic person in the legal parlance. A party who purports to bring an action in respect of the estate of a deceased person is Trustee, Executor or Administrator of the Estate, and no other. In the case of UNION BANK v MKENA (2019) LPELR-47197 (CA), the court held thus:
“It is not a fact in dispute that the Respondent, as Plaintiff before the lower Court, sued the Respondent/Defendant as: “Ker Mkena (Suing as next of kin of the late Dr Terlumun Mkena)”. Therefore, the bone of contention is whether the suit before the lower court was competent, having been so initiated. By a long line of decided cases, it is incontrovertible that where a party purports to bring an action in respect of the estate of a deceased person, in order to be competent, such an action must be instituted by the Trustee, Executor or Administrator of the Estate, and no other. In the case of The Administrators/Executors of the Estate of General Sani Abacha (Deceased) v Eke-Spiff (2009) All FWLR (Pt. 467) 1, 21, D-F, & 31, D-E the Supreme Court held inter alia as follows: “I go further to say that a person does not have the locus standi, indeed, he lacks the competence to bring an action in a representative capacity as an administrator of the estate of a deceased person, until he has been granted the letters of administration. If he brought the action before the grant, such grant has no retroactive validity. Similarly, a person, who as a plaintiff has no legal power to sue another person as an administrator or executor of an estate of a deceased person, without naming the person of such an administrator or executor on the writ and ascertaining that Letters of Administration or Probate as the case may be, thus legally empowering that person sued to administer the estate of the deceased, was obtained prior to the initiation of the suit… This is because a person has no locus standi and lacks competence to bring an action in a representative capacity as an administrator of the estate of the deceased person, until he has been granted the Letters of Administration… Similarly, a person who has not applied for nor granted letters of administration authorising him to administer the estate of a deceased person, cannot defend any action against the estate of the deceased. In other words, it is the grant of the letters of administration that confers the right to sue or be sued in the name of the estate of a deceased person.” Thus, for a person to be competent to institute an action in respect of the estate of a deceased person, or even to defend an action commenced against the estate of a deceased, he must be an Administrator or Trustee or Executor of the estate, who has been granted Letters of Administration in that regard, to administer the estate. Any other person would lack the requisite locus standi to initiate or sustain an action in respect of the estate.
By virtue of this Rule of Court and the law as set down in decided cases, a grantee of Letters of Administration in respect of the estate of a deceased has the right to sue and be sued. What is important is the legal standing which vests in a party the capacity to approach the court, and not the way in which he chooses to describe himself. Thus, in my humble view, the description of the Plaintiff as “the next of kin” of the Estate of the late Dr. Terlumun Mkena on his court processes, is merely superfluous and does not in any way detract from the fact that he was properly clothed with locus standi to institute the action, having been granted Letters of administration before he did so”.
In conclusion, there is nothing special about next-of-kin as far as succession is concerned. Next-of-kin is merely inserted as 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.
THOUGHT FOR THE WEEK
“Legacy is not what I did for myself. It’s what I’m doing for the next generation”. (Vitor Belfort)
Menu
