Can a Property Not Specifically Mentioned in a Will but Incorporated in the Residuary Clause Be Said to Have Fallen into Intestacy

CASE TITLE:                         MR. OMOBUDE OMONUWA VS MR. BENSON EDEGBE AND ORS (2022) LPELR-57135(CA)

JUDGMENT DATE:           15TH MARCH, 2022

JUSTICES:                            UCHECHUKWU ONYEMENAM, JCA

JAMES GAMBO ABUNDAGA, JCA

ADEMOLA SAMUEL BOLA, JCA

PRACTICE AREA:               WILLS AND PROBATE- WILL

FACTS:

The Appellant’s father, Pa Wilifred Aimiyekagbon Omonuwa, died on 28th January, 2012. He was survived by 19 children, amongst whom is the Appellant who is the eldest child and son. The Appellant’s father made a Will which was proved in the probate Registry, Benin City. The Appellant alleged that certain properties of their late father were not captured in the said Will, that those properties fell into intestacy, and were therefore subject to Bini Native Law and Custom. Among the properties not specifically mentioned in the Will is Property No. 173, Uselu Lagos Road, Benin City, housing Alfa Group of Schools.

Upon hearing that the said properties not specifically mentioned in the Will were about to be sold, the Appellant put a caveat against the sale, and further put up a publication in the Nigerian Observer and EBS. The Appellant alleged that Mr. Benson Edegbe (1st Respondent), without recourse to him as the eldest son, and in complete disregard of Bini Native Law and Custom, sold the property and also withdrew the sum of N12,361,112.47 from their late father’s fixed deposit account with Guarantee Trust Bank(4thRespondent) which was also not captured in their late fathers’ last Will.

Aggrieved by this state of affairs, the Appellant instituted an action against the Respondents in the trial Court, wherein he sought, inter alia, for an order directing Elder Matthew E. Ogbebor (2nd Respondent) to immediately convene a meeting of the Elders of the family and children of their late father, for the purpose of sharing the properties not specifically mentioned in the Will in accordance with Bini Native Law and Custom. He also sought for an order setting aside the purported sale of the property by the 1st Respondent to Mr. Osamuyi S. Irenuma (3rd Respondent).

The 3rd Respondent counter claimed for; a declaration that he is the legal owner and in possession of the property sold to him by 1st Respondent and therefore entitled to a statutory right of occupancy over same; an order of perpetual injunction against the Appellant and the sum of N5 Million Naira general damages for trespass.

In its considered judgment, the High Court dismissed the Appellant’s claims and granted the 3rd Respondent’s counter-claims in part.

ISSUES:

The appeal was determined upon consideration of the issues thus:

(1) Whether the Testator/Appellant’s late father’s property at No. 173, Uselu Lagos Road, Benin City which is one of the properties not captured in the Will (Exhibit A) fell into intestacy, and therefore subject to Bini Native Law and Custom on inheritance in view of clause 36 in the said Will.

(2) Whether the trial Court was right in granting the 3rd Respondent’s Counter Claim.

COUNSEL SUBMISSIONS

Learned Counsel for the Appellant submitted that it was wrong for the learned trial Judge to hold that all properties constituting the Estate of the Testator not captured in the Will are deemed to be under the Executors. That the properties not specifically mentioned in the Will fall into intestacy of the deceased, and therefore in accordance with the interpretation of “intestate”, devolved in the deceased’s children by operation of law. That its inheritance must therefore be determined according to the personal law or the customary law of the Benin people.

Counsel further submitted that the 2nd Respondent admitted the Appellant’s case that the intestate properties of the deceased are subject to the deceased’s personal law of distribution, inheritance or succession. That the Executors had no business intermeddling with properties not captured in the Will as such properties fall into intestacy which is subject to Benin law and custom.

Learned Counsel for the 1st Respondent submitted that the Appellant’s father’s properties not captured in the Will became a part of the residuary estate which the Executors/Administrators were empowered to distribute among the beneficiaries of the Will and did not fall into intestacy or become subject to Bini Native Law and Customary Rules of distribution.  That if the Appellant’s father intended that persons other than the named Executors should carry out his wishes, he would have so clearly stated.

Counsel further submitted that partial intestacy occurs only where a residuary clause is not used and some parts of the estate might end up being undisposed of.

Learned Counsel for the 3rd Respondent submitted that the Executors were appointed and given the mandate to distribute the residuary estate amongst the Testator’s children consistent with the Will. Therefore, the properties in the residual estate became part of the inventory of the list attached to the letters of administration granted by the probate registry of the High Court. That the administrators became vested with the power to deal with the residuary estate to the exclusion of any other person or entity.

DECISION/HELD:

In a unanimous decision, the appeal was dismissed and accordingly, the judgment of the trial High Court was affirmed.

RATIOS:

1. WILLS AND PROBATE- WILL: Whether a property not specifically mentioned in a will but incorporated into the will by a residuary clause can be said to have fallen into intestacy

“The Appellant’s suit at the lower Court is founded in his belief that property No. 173, Uselu/Lagos Road, Benin City is not captured in the Will. However, the contention of the 1st, 3rd and 4th Respondents is that it is captured by virtue of clause 36 of the Will which has incorporated the said property as a residuary estate and states: “I hereby direct that my properties not specifically mentioned herein shall be shared amongst my children.” Residuary Estate is defined in Black’s Law Dictionary, 9th Edition as: “Part of a deceased’s estate remaining after the payment of all debts, expenses, statutory claims, taxes, and testamentary gifts (special, general and demonstrative) have been made.” It is without a doubt that residuary estates are gifts that remain and are not specifically devised after all the debts and liabilities of the Testator have been cleared and paid. As rightly submitted by counsel for the 1st Respondent, the essence of making a residuary gift is that it prevents partial intestacy, whereby some properties may fail or may not be disposed of if no provisions are made for what will happen to the residue of the estate. The appellant has challenged the inclusion of property No. 173, Uselu/Lagos Road, Benin City in the inventory. The respondents, particularly 1st, 3rd and 4th respondents are in sharp disagreement with his position. The first point I must make here is that he has failed to challenge that inclusion when the letters of Administration were granted and therefore have formed part of the deceased Testator’s Will upon which the letters of administration were granted to the Administrators, he cannot challenge their right to perform their duties under the letters of Administration by exercising their powers and control over it. More so, even in the suit leading to this appeal, the appellant did not challenge the letters of administration based on the inclusion of the properties not captured in the Will. Secondly, and more importantly, the inclusion of Clause 36 in the Will put the Executors/Administrators on the notice to investigate any of the Testator’s properties that were not captured in the Will. Since that property was revealed to them, it would have amounted to an act of dishonesty or indolence not to have included those properties in the inventory. This is because the directive in clause 36 was directed to them. Therefore, they could not be seen to have performed their duties under the Will well without identifying those properties that were not specifically captured in the Will. I have no doubt in my mind that those properties did not fall into intestacy. They formed part of the Will for which the Executors/Administrators were given letters of Administration to deal with. Perhaps the appellant’s case might have fared better if his case was that, as the 1st son that property is the Igi-ogbe. Even in that case, it is the Will he would have challenged and not wait till letters of administration had been issued to the Executors/Administrators.” Per ABUNDAGA, J.C.A.

• WILLS AND PROBATE – WILL: Whether a property not specifically mentioned in a will but incorporated into the will by a residuary clause can be said to have fallen into intestacy

“The point must also be made that by making a Will (Exhibit “A”), the Testator did not want his properties to be shared or distributed in accordance with Benin Customary Law of inheritance or distribution. That is why after making specific bequests he included a residuary clause by including clause 36. It is, therefore, wrong to refer to any property not specifically captured in the Will but incorporated into the Will by a residuary clause as intestate property.” Per ABUNDAGA, J.C.A.