Category: ARM Trustees

Ask Shade: He Left Everything to His children From a Previous Marriage! How Do I Secure My Child’s Future?

Dear Shade,

I’m in my early 30s engaged to a widower in his 50s. We plan to get married in a few months and I‘m already pregnant. While cleaning his study last week, I stumbled on something that looks like his Will and it seems like he already willed everything to the three children from his previous marriage. Since then I’ve been worried about my unborn children. What would be their fate? What if something suddenly happened to their father, will they have anything from him? How can I be sure what I found is really his valid Will? Since I’m already carrying his child, I am contemplating asking him to write another Will. The document I found dated back to 2009, what of assets he has acquired after he wrote this Will? Please advise me, how can I secure my children’s future?

Fikayo, Lagos

***
Hello Fikayo,

I completely understand and empathize with your situation as it could be quite a challenge bringing up the issue of Wills with your fiancé considering the fact that you are not yet married to him. It is only natural that you are concerned about the security of your children’s future, given the prevailing circumstance. Your concerns are valid and thinking about an update of your fiancé’s estate plan is the way to go.

The details you provided about the document you stumbled upon are hardly enough for me to ascertain if it is indeed your fiancé’s Will. However, even if it is not his Will, it is likely an indication that a Will exists, and your fiancé is knowledgeable and intentional about estate planning. I think you should find a little relief in this fact, it gives you a good pedestal to start the conversation about an amendment and all that.

It should interest you to note that the Wills Law of Lagos State makes it necessary for your fiancé to make provisions for all his dependents in a Will which would include your unborn child and subsequent children. In the event that he refuses to make the appropriate provision, he must state a reason or reasons for his refusal. You should also be aware that since you are not yet married to him you do not outrightly become his dependent, the baby notwithstanding.

If all else is in place, you should focus on getting married as the marriage will confer on you rights as a dependent and give you the needed standing to discuss his succession plan. Once married statutorily-that is marriage done through a marriage registry, all prior Wills written by your husband (including his 2009 Will) would become invalid according to the provisions of the Wills Law. He would therefore need to rewrite his Will based on the statutory marriage with you.

Should there be any fatality to your husband after your marriage without him rewriting his Will, you would be entitled to all his personal belongings (items like clothes, jewelry, watches etc) and one-third of his estate according the Administration of Estate Law while his children would be entitled to two-thirds of the estate. These unspecific distributions could however be likely cause of dispute amongst family members due to valuation and sharing issues relating to the Assets. Should the unfortunate occur before your wedding, the child should still be considered his dependent.

I understand that the subject of Wills may appear to be a bit emotional, but I would recommend that you subtly encourage your fiancé upon marriage to re-write his Will so that the intestacy rules are prevented and the beneficiaries’ gifts are clearly stated to reduce dispute amongst family members. You should also consider writing your Will if you do not have one.

Thanks to everyone who has reached out to me with their concerns. If you would like to have your question featured, please email your question to [email protected]. ARM has a new and easy way for people to get started on their last will and testament. The Easy Will portal  is designed to take the stress off getting a Will. In a few clicks, interested people can now easily get a valid and secure Will online. Have a look here.

Warm regards,

Shade

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Ask Shade- My father had a secret family

Dear Shade,

Please help us. Until my father’s unexpected demise (he slumped and died), we did not realise he had a secret family. We always thought his frequent visits to Ibadan were business related but apparently, we were wrong. The Ibadan woman bore him two sons and a daughter while my mother has just my twin sister and I. While he married my mother traditionally, he married the other woman at the marriage registry. The problem now is she has proof that over half of my father’s property were purchased in her name and she is insistent on claiming ownership, as there is no Will. If this is allowed to happen, my mother would be left with just the house we live in and a plot of land. The company, buildings and trucks carry the woman’s name. My mother is devastated, how would she be able to cope, he has given everything they worked for to another woman. The extended family supports his second wife because she has sons and her children are still young. Is there anything we can do?

Bimbo, Lagos

Hello Bimbo,

I sincerely empathize with you. Dealing with such daunting discoveries after losing a dear person can be quite overwhelming. The situation is a little complex given that your father married both women.

It is important to note that the law recognises both the statutory marriage (court marriage) and the customary or traditional marriage. The major contrast between the systems is that while the statutory marriage speaks to monogamy, Customary or Native law is potentially polygamous. From your explanation, your mother’s marriage to your father falls under the category of the customary marriage while his marriage to the other woman is a statutory marriage. Although a part of the Nigerian law upholds the potency of the customary law as binding, other legal principles suggest that any Customary marriage which precedes subsequent Statutory marriage would be rendered void by the subsequent statutory marriage

For the distribution of your father’s assets, if most of your father’s properties were purchased in the other woman’s name, then those said assets would be presumed by the law as belonging to her and it would be impossible for such assets to form part of your father’s assets or Estate. You may however be able to prove that the presumption of the other woman’s title to the assets if you can present any evidence of fraud, misrepresentation or show that she was only holding the assets on behalf of your late father.

Since your farther died intestate (without a Will), a critical point of concern is the subject of obtaining a letter of administration.  Particularly as there is a hierarchy of persons authorised to apply for this letter. The first person with a right to apply for the letter of administration would be his statutory wife (provided the Statutory Marriage is not voided) and the children (who are adults) following in order of priority.

If your father’s statutory marriage is found to be void by a court based on the provisions of the Marriage Act, then his assets will be distributed based on the existing customs that govern asset distribution in his culture. Otherwise, the distribution of your late father’s assets would be based on the relevant Administration of Estate Law. Most of those Laws (particularly in Lagos State and the States of the Old Western Region of Nigeria including Oyo State) provide that where the deceased had a statutory marriage, the surviving spouse would be entitled to the personal chattels (such as clothes, cars, furniture, jewellery etc) and a third of all assets of the deceased spouse.  The remaining two-thirds of the assets may then be shared amongst all the deceased’s children.

This situation shows why it is important to have a Will to prevent any sort of confusion as to the distribution of one’s assets. It also reveals that a Statutory Marriage offers greater advantages in the event of the demise and intestacy of a spouse than the traditional marriage. It likewise points to the fact that women should not assume the state of their husbands’ estates. They should themselves plan their estates and encourage their spouses to do the same.

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Ask Shade: How Do I Convince My Husband to Write a Will?

Hi Shade,
I need your help to save my marriage. I ran into an old friend who bitterly recounted her ordeal in the hands of her in-laws after her husband’s unexpected death. I was greatly disturbed by her story, I kept wondering what would happen to us if anything happened to my husband. I run a small business, but my husband mostly provides for our welfare and the children’s education. So, I asked him if he was thinking of writing a Will as nobody knows tomorrow.

He has been angry with me since then and has refused to eat anything I cook, claiming if I don’t have plans to kill him, I wouldn’t be talking about a Will when he is barely forty years old and has not even built a house.

Please Shade, is he too young to have a Will? Can one put small things like share certificates, land, bank account, pension funds in a Will? If so, how can I convince him to write a Will?
Benita
Lagos, Nigeria.

***
Hello Benita,
I can imagine what you are going through. Your situation is not at all peculiar, we deal with cases like this a lot – women encountering obstacles in their attempt to propel their husbands towards estate planning. However, the widespread misconception has led many to erroneously assume that Wills are for the extremely wealthy, aged, or polygamous.
Planning your Estate (or distribution of your assets after demise) is a very good decision and you do not need to be rich before doing so. A Will can include assets such as your bank accounts, retirement savings account (pension funds), investments, real estate, shares and many other assets.

You may explain to your husband that a Will doesn’t mean unexpected death, a Will is in fact more about attaining peace of mind than preparing for death as it prevents assets from being subject to the rules of intestacy, native laws and customs and religious practices. Writing a Will ensures that one’s wishes are carried out and assets are distributed to loved ones and dependents as you wish thereby reducing the likelihood of conflicts and dispute amongst surviving family members.

Bear in mind that even at the age of 21, one can write a valid Will, so your husband is not too young to write a Will. Writing a Will also enables surviving family members to be able to identify and recover all the personal assets that a person might have accumulated over the years but which no one else may be aware of – such as bank accounts and investment accounts.

Wills are something most people are afraid to talk about. It might not be so easy to convince your husband from the onset because it is a very sensitive topic. However, you might want to find a time he is relaxed and in a good mood and talk to him about the advantages of a Will. You should also let your husband know that designating a next of kin does not automatically transfer assets to that person.

Furthermore, you should consider writing your own Will also at the same time that he is writing his. This should not only give him comfort, but also assure you as to your children’s wellbeing should anything happen to you. Since you have a business, however small, it is wise for you to take steps towards organising your estate as well.

If it seems like you are not able to convince him at first, do not fret, building trust and changing perception takes time. Keep at it, as lovingly as you can and hopefully, you’ll succeed. Regarding his refusal to eat meals at home, perhaps you can convince him of his safety by sharing the meal with him. Since you are not likely to poison yourself, he should be convinced the food is safe if you eat together, from the same plate.

I wish you all the best, I am certain your marriage will survive this little hurdle.

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Source: Articles