Whether a Property Incorporated into a Will By a Residuary Clause Can Be Said to Have Fallen into Intestacy

CASE TITLE: OMONUWA v. EDEGBE & ORS (2022) LPELR-57135(CA)

JUDGMENT DATE: 15TH MARCH, 2022

PRACTICE AREA: WILLS AND PROBATE

LEAD JUDGMENT: JAMES GAMBO ABUNDAGA, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Wills and Probate.

FACTS

This appeal is against the judgment of the High Court of Edo State in Suit No. B/607/2012 delivered on 7th February 2017 by Hon. Justice E.O. Ahamioje.

The Appellant’s father, one Pa Wilfred Aimiyekagbon Omonuwa died on 28th January 2012. He was survived by 19 children, amongst whom is the Appellant, the eldest child and son. The Appellant’s father made a will which was proved in the probate Registry, Benin City on 31st March 2012. It is the Appellant’s case that certain properties of their late father were not captured in the said will and therefore 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. That upon hearing that the said properties not specifically mentioned in the will be about to be sold, he went to the property known as No. 173, Uselu Lagos Road, Benin City and put a caveat against the sale, and further put up a publication in the Nigerian Observer and EBS. However, the Appellant further states that the 1st Respondent without recourse to him as the eldest son, and in complete disregard of Bini Native Law and Custom sold the property at No. 173, Uselu Lagos Road, Benin City and also withdrew the sum of N12,361,112.47 from their late father’s fixed deposit account with Guarantee Trust Bank which was also not captured in their late fathers’ last will.

Aggrieved by this state of affairs, the Appellant as Claimant filed an action at the trial Court seeking declaratory reliefs and orders.

The claims were denied by the Respondent who in furtherance thereto filed their respective statements of defence. Further to the statement of defence, the 3rd Respondent counterclaimed for a declaration that he is the legal owner and in possession of all that property known as No. 173, Uselu Lagos Road, Benin City as shown in the Property Survey Plan No. KS/ED/044/2008 and therefore entitled to a statutory right of occupancy over same amongst other reliefs.

The learned trial judge dismissed the claims of the Appellant while the counterclaim of the 3rd Respondent was granted in part. Dissatisfied, the Appellant filed an appeal at the Court of Appeal.

ISSUES FOR DETERMINATION

The Court of Appeal determined the appeal on the following 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.”

DECISION/HELD

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

RATIOS:

• ADMINISTRATION OF ESTATE- PERSONAL REPRESENTATIVES: Meaning of an executor/personal representative; status of an executor/personal representative in relation to the property of a deceased
• 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
• WILLS AND PROBATE- EXECUTOR(S) OF WILL: Whether an executor or administrator has the power to sell the property of a deceased under a will
• WILLS AND PROBATE- EXECUTOR(S) OF WILL: Position of the law where an executor or personal representative decides to surrender the rights in respect of some of the properties of a deceased in the residuary clause to be distributed by other people other than them