Friday, 20 July 2018

ILLEGITIMACY AND THE RIGHT OF INHERITANCE

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Generally, under the law, a child is considered legitimate if its parents were married at the time of its birth. Thus, a child born in lawful wedlock is considered legitimate. Customary law also recognises a child to be legitimate if the paternity of the child is acknowledged by the father of the child before or after the birth of the child.

An illegitimate child is one born outside of marriage. An illegitimate child can become recognised as legitimate through a process known as Legitimization. Legitimization may occur through either of the following processes:

Marriage: a child born out of wedlock would become legitimate if its parents eventually get married to each other;
Acknowledgment: This is a process of legitimization known only to Customary Law. A child becomes Legitimate when his father acknowledges paternity by acknowledging the child as his. However, acknowledgement would not make an illegitimate child legitimate if that illegitimate child was born out of wedlock during the subsistence of a valid statutory marriage.[1] This is aimed at protecting the sanctity of marriage.

Illegitimacy poses some problems when it comes to succession. Succession means the process of inheriting property from a deceased person.
When the deceased made a valid will before his death, there is usually no problem.  However, problem arises when the deceased died intestate; that is without a will and this problem is further compounded where the paternity of the child is not acknowledged by the deceased before his death, either because he did not know about the existence of that child, or for one reason or the other.

This raises the question: Can an illegitimate child inherit from his father or mother in the event of their death? 

The answer to the question is in the affirmative. A child irrespective of whether he is considered to be illegitimate can inherit alongside his legitimate siblings in the event of the death of his parents.  Formerly under the Nigerian Law, before the 1999 constitution came into force, an illegitimate child had no Inheritance Rights in his father’s Estate[2]. However, the position has been altered by the 1999 constitution.

The effect of Section 42(2) of the 1999 Constitution of Nigeria (As Amended) is that it has conferred equal Succession/Inheritance rights on the illegitimate child and the legitimate child. Therefore the distinction between an illegitimate child and a legitimate child is a distinction without any legal consequence or implication.

The Legitimate child or a child born during the subsistence of a valid marriage has an automatic right to a share in his father’s property, while the right of the illegitimate child to have a share in the estate (property) of his deceased father is predicated upon his ability to establish that he has been acknowledged by his father in his lifetime as his child and is therefore entitled to a share in his father’s estate. In the case of a child who was never acknowledged by his father in his lifetime for one reason or the other, he can only become entitled to a share of his father’s estate if he is able to adduce clear and credible evidence which proves that he is a child of the deceased.

In Ukeje v. Ukeje[3], the Supreme Court finally resolved the uncertainty surrounding the inheritance rights of illegitimate children when it stated that:

The trial court, I hold did rightly declare Unconstitutional, the law that disinherits children from their deceased father’s estate. It follows therefore that the Igbo native law and custom which deprives children born out of wedlock from sharing the benefit of their father’s estate is conflicting with section 42(2) of the constitution of the Federal Republic of Nigeria, 1999 (as amended).

Section 42 of the Constitution entrenches the right to freedom from discrimination and section 42(2) particularly provides that no citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth. It is for this reason that an illegitimate child cannot be robbed of his right to inherit his from father’s estate (property).

[1] Cole v. Akinyede (1960)5 FSC 84
[2] Osho v. Phillips (1972) ANLR at 279
[3] (2014) LPELR-22724(SC)
 
 

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