Introduction
Inherited property can become a major source of family disputes, particularly where several beneficiaries are entitled to the same property.
A common situation is one in which a deceased person’s property is left to several children or other beneficiaries, but one family member subsequently assumes control of the property.
That person may be the eldest child, the first son, the person who lives on the property, the person who has been collecting rent, or someone regarded by the family as the “head of the family”.
The problem arises when that person attempts to sell, lease, mortgage or otherwise deal with the property.
This raises an important question:
Who has the authority to deal with inherited property left to multiple beneficiaries under a Will in Nigeria?
The answer cannot simply be determined by asking who is the eldest child or who has been managing the property.
The terms of the Will, the nature of the beneficiaries’ interests, the status of the estate and the applicable law must be considered.
WHAT THE LAW SAYS
1. The Will Is the Starting Point
Where a deceased person has left a Will, the Court’s starting point in determining the rights of beneficiaries is the Will itself.
The Court is required to ascertain and give effect to the intention of the testator as expressed in the Will.
In UDEGBUNAM v. UZODIKE & ORS (2016) LPELR-41529(CA), the Court of Appeal stated:
“The Rules which govern the construction of contracts are the same at law and in equity. – RE TERRY & WHITES CONTRACT 1886. 32 CHD. 14 @ 21. This applies to simple contracts and to specialities, of which I dare add, – the construction of Wills. In the Construction of Wills of deceased persons, the Courts duty, and indeed their concern, is to give effect to the intention and wish of the deceased testator. It therefore becomes imperative on the Courts to adopt the golden rule, by giving the words used in the Will its literal and ordinary meaning.”
Per RITA NOSAKHARE PEMU, JCA (Pp 9 – 9 Paras C – E).
The importance of this principle is that the rights of beneficiaries should first be determined by examining what the deceased actually provided.
A family member cannot simply replace the terms of the Will with assumptions about what the deceased would have wanted.
2. Where the Will Clearly States How the Property Is to Be Shared, the Court Must Give Effect to That Intention
The position becomes particularly important where the Will clearly indicates how the deceased intended the property to be distributed.
In UDEGBUNAM v. UZODIKE & ORS (2016) LPELR-41529(CA), the Court of Appeal further held:
“Decidedly, when constructing a Will, in which the testator’s intention is clearly indicated on how his property must be shared, the Court has no business entertaining argument regarding the issue of native law and custom, as this would defeat the very intent and purpose of the Testators wish in his WILL.”
Per RITA NOSAKHARE PEMU, JCA (Pp 14 – 14 Paras B – C).
This is particularly relevant where a family member attempts to rely on customary family hierarchy to justify control over property which the deceased expressly dealt with in a Will.
The important question is therefore not simply:
“Who is the eldest?”
The first question is:
“What did the deceased provide in the Will?”
Where the testator’s intention is clearly expressed concerning the distribution of the property, that intention must be given effect.
3. Being the Eldest Child Does Not Automatically Give a Person Authority Over Inherited Property
One of the most common misconceptions in family property disputes is that the eldest child automatically has authority over the property of a deceased parent.
That is not a safe assumption.
Being the eldest child, first son or a person regarded as the family head does not, by itself, establish exclusive ownership or authority to deal with property that has been devised to several beneficiaries.
The same applies where a person has historically:
- Collected rent from the property;
- Maintained the property;
- Paid taxes or other expenses;
- Lived in the property; or
- Dealt with tenants on behalf of the family.
Those activities may be relevant to the circumstances of the case, but they do not automatically establish exclusive authority to sell or lease the property.
The legal question remains:
What interest does the person have in the property, and what authority does the person have to deal with it?
4. Multiple Beneficiaries Do Not Necessarily Have Identical Interests in Every Case
It is also important not to assume that whenever several people are named as beneficiaries, the law automatically treats their interests in exactly the same way.
The wording of the Will matters.
A Will may give property to several beneficiaries together. It may create separate interests. It may impose conditions. It may also confer particular responsibilities or powers on particular persons.
Therefore, before determining who can sell, lease or otherwise deal with the property, it is necessary to establish:
- What the Will provides;
- Who the beneficiaries are;
- What interest each beneficiary received;
- Whether the estate has been administered;
- Whether there are executors or administrators with authority to deal with the estate; and
- Whether the proposed transaction is consistent with the legal interests in the property.
This distinction is important because beneficial entitlement and authority to administer or deal with estate property are not necessarily the same thing.
5. Beneficiaries Have Sufficient Interest to Protect Their Rights
What happens where one person begins dealing with property in a manner that threatens the interest of another beneficiary?
A beneficiary is not necessarily without a remedy.
In ADETOLA & ANOR v. ATUNRASE & ORS (2025) LPELR-81629(CA), the Court of Appeal stated:
“As children and beneficiaries of the estate of their father, the late Joseph Banjo Atunrase, they have sufficient interest to defend their rights, where they allege any infringement. See OLOWO SAGO V. ADEBANJO (1984) 4 NWLR (PT. 88) PG. 275.”
Per BITRUS GYARAZAMA SANGA, JCA (Pp 27 – 27 Paras B – C).
The decision is important because it recognises that beneficiaries of a deceased person’s estate may have sufficient interest to defend their rights where they allege an infringement.
Therefore, if one beneficiary attempts to deal with estate property in a manner that threatens another beneficiary’s interest, the affected beneficiary may have grounds to seek appropriate legal protection.
The precise remedy and the appropriate parties will depend on the circumstances of the particular estate and the nature of the interest involved.
6. Who Can Actually Sell or Lease Estate Property?
This is where it becomes important to distinguish ownership or beneficial interest from legal authority to deal with estate property.
The fact that a person is a beneficiary does not necessarily mean that the person can personally sell or lease the entire property of the estate.
Similarly, the fact that a person is managing the property does not necessarily mean that the person has authority to dispose of it.
The relevant questions include:
Has the estate been administered?
The status of the estate may affect who has authority to deal with the property.
Who are the executors or administrators?
Where persons have been appointed to administer the estate, their legal authority must be considered.
What does the Will provide?
The Will may contain provisions concerning particular properties or the responsibilities of particular persons.
What interest does each beneficiary have?
The legal nature of the interest determines what the beneficiary can and cannot do.
Has the property been transferred or assented to the beneficiaries?
The position may change depending on whether the property remains an asset of the estate or has been properly transferred or vested in the beneficiaries.
Consequently, there is no universal rule that simply says:
“The eldest beneficiary can sell the property.”
Nor is there a universal rule that every transaction necessarily requires the signature or consent of every beneficiary.
The authority to deal with the particular property must be established from the relevant legal documents and circumstances.
7. Customary Family Property Is a Different Category
Another important distinction must be made between property devolving under a Will and customary family property.
Customary family property is governed by specific principles concerning the authority of the family head and the rights of other family members.
In AGUBOSHIM & ORS v. NJIRIBEAKO (2014) LPELR-23777(CA), the Court of Appeal stated:
“It is now almost universally accepted in all parts of Anglophone West-Africa and indeed Southern Nigeria, following the landmark cases of Ekpendu v. Erika (1959) SCNLR 186, Mogaji & Ors. v. Nuga (1960) SCNLR 219, Manko & Ors v. Bonso & Ors. (1936) 3 WACA 62, that a sale or alienation of family land by a member of the family other than the Family Head, is void ab initio while a sale or alienation by the Head of the Family is voidable at the instance of non-consenting members of the family. See. Achilihu & Ors. v. Anyatonwu (2013) 1 SCM 1 at 13 Per Aka’ahs, JSC and Ejilemele v. Opara & Anor. (2003) LPELR- 1065(SC) at 15 – 16 Per Iguh, JSC ably cited by my Lord at pages 20 and 21 of his Lead Judgment.”
Per IGNATIUS IGWE AGUBE, JCA (Pp 46 – 47 Paras F – B).
This is an important principle concerning customary family land.
However, it should not automatically be applied to property that a deceased person has expressly disposed of by Will.
Where the deceased has made a Will and clearly indicated how the property is to be distributed, the Court must first consider the testamentary disposition.
Therefore, the question of whether a “family head” has authority over a particular property may depend fundamentally on what kind of property it is and how the property devolved.
8. A Third Party Cannot Simply Assume That the Person in Possession Has Authority
The issue is equally important for purchasers and tenants.
Imagine that a person approaches a prospective tenant and says:
“This is my father’s property. I am the first son and I manage everything.”
The prospective tenant should not simply assume that the person has authority to grant a lease over the entire property.
The same caution applies to a purchaser.
Where there are circumstances suggesting that another person may have an interest in the property, proper enquiries should be made.
The doctrine of bona fide purchaser for value without notice is relevant in appropriate circumstances.
In CHIDOL PROPERTY LTD v. AGAPE PHARMACEUTICAL INDUSTRIES (W/A) LTD & ORS (2019) LPELR-48366(CA), the Court of Appeal stated:
“…I am not unmindful of the claim of the Appellant that the Appellant is a bona fide purchaser without Notice. The question is who is a bona fide purchaser for value without notice and the ingredients to sustain it as a defence. The Supreme Court per OBASEKI, JSC of blessed memory visibly and extensively explained the equitable doctrine in the case of ALHAJA JURADAT ANIMASHAUN v. G.A. OLOJO (1990) 6 NWLR (PART 154) 111 AT 122 F-H: – “What is the meaning of a ‘bona fide’ purchaser of the legal estate for value without notice?’ Bona fide’ is defined as “In good faith honestly, without fraud, collusion or participation in wrong doing. Purchaser for value ‘Purchaser in its technical sense does not necessarily imply purchaser for value. ‘For value’ are included to show that value must be given to earn the immunity from equitable claimants. Value means any consideration in money, money’s worth (e.g. other lands, stocks and shares or services or marriage. (See Le Neve v. Le Neve (1747) 1 Ves Sen 64; Wh & T. ii 157 Wil-Ioughby v. Willoughby 1 TR 763. Of a Legal Estate As Courts of equity break in upon the common law, when necessity and conscience require it, still they allow superior force and strength to a legal title to estate. See Wortley v. Birkhead (1754) 2 Ves Sen 571 at 574 per Lord Hardwicke, LC Without Notice He must have no notice of the existence of equitable interest. He must have neither actual notice for constructive notice or imputed notice.” A person has actual notice of all facts which he has (or has had) actual knowledge however that knowledge was acquired. Constructive Notice The Court of Chancery insisted that purchaser should inquire about equitable interests with 170 less diligence that about legal interest which they could ignore only at their own peril. The motto of English conveyance is caveat emptor/the risk of encumbrances is on the purchaser who must satisfy himself by a full investigation of title before completing his purchase. A purchaser would be able to plead absence of notice only if he had made all usual and proper enquiries, and had still found nothing to indicate the equitable interest. In the instant appeal, if the appellant had visited the site of the land, plot 27 before completing the purchase, she would have found that the respondent was already in possession of the land and then further enquiries would have revealed that her vendors had already sold the plot and collected the purchase price from the respondent. Imputed Notice There is a third category of notice known as imputed notice. If a purchaser employs an agent, such as a solicitor, any actual or constructive notice (re Aims Corn Charity (1901) 2 Ch. 750) which the agent receives is imputed to the purchaser. There is no evidence that any agent acted for the appellant. Since plot 27 was already sold to the defendant/respondent and who was put in possession before the appellant bought and received the conveyance Exhibit A assuming that the plan attached to Exhibit A correctly describes the property, she bought subject to the equitable interest in the land acquired by the Respondent. In view of all I have said, I found no merit in the appeal and for the above reasons, I dismissed the appeal and affirmed the decision of the Court of Appeal.” And recently in the case of BEST NIGERIA LTD V. BLACKWOOD HODGE (NIGERIA) LTD & ORS (2011) NWLR (PART 1239) 95 at 120 D FABIYI, JSC said: “A bonafide purchaser for value is one who has purchased property for valuable consideration without notice of any prior right of title which if upheld will derogate from the title which he has purported to acquire.””
Per PETER OLABISI IGE, JCA (Pp 25 – 28 Paras D – E).
The decision demonstrates the importance of proper investigation where a third party seeks to acquire an interest in property.
A purchaser or prospective lessee should not simply rely on the representation of the person offering the property.
The person should establish:
- The root of title;
- The ownership of the property;
- The status of the estate, where applicable;
- The authority of the person offering the property;
- The interests of other beneficiaries; and
- Any existing claim, encumbrance or dispute affecting the property.
9. What Should You Do If One Beneficiary Is Trying to Deal With the Property?
If you are a beneficiary and another beneficiary or family member is attempting to sell, lease, mortgage or otherwise deal with property in which you have an interest, the following steps may be appropriate.
Examine the Will
Obtain and carefully examine the Will.
Do not rely solely on another family member’s explanation of what the deceased intended.
Establish the Status of the Estate
Determine whether probate has been granted and identify the persons responsible for administering the estate.
Establish the Nature of Your Interest
Determine exactly what interest the Will or applicable succession law gives you in the property.
Find Out What Transaction Is Being Proposed
Determine whether the property is being sold, leased, mortgaged or otherwise dealt with and who is purporting to authorise the transaction.
Preserve Evidence
Keep copies of relevant documents, correspondence, title documents, receipts, tenancy agreements, photographs and communications concerning the property.
Seek Legal Advice
If the transaction is imminent or your interest is already being affected, obtain legal advice promptly.
10. What Should a Purchaser or Lessee Do Before Taking the Property?
A purchaser or prospective tenant should equally exercise caution.
Before paying money or entering into a significant transaction concerning inherited property, the prospective purchaser or lessee should investigate:
- The root of title;
- The Will, where relevant;
- Probate or letters of administration, where applicable;
- The identity and authority of the personal representatives;
- The interests of other beneficiaries;
- Existing tenants or occupants;
- Relevant searches at the appropriate land registry;
- Any pending litigation; and
- Any other circumstance that may indicate that another person has an interest in the property.
A prospective purchaser or lessee should be particularly cautious where one person claims to be the sole person authorised to deal with property which is said to belong to several beneficiaries.
The question should not simply be:
“Is this person the eldest?”
The question should be:
“What is this person’s legal authority to grant the interest being offered?”
PRACTICAL LESSONS
The Will Matters
Where the deceased left a Will, the terms of the Will are central to determining the rights created in respect of the property.
The Testator’s Intention Matters
The Court’s duty is to give effect to the intention of the deceased as expressed in the Will.
Being the Eldest Does Not Automatically Confer Authority
Being the first son, eldest child or family head does not, by itself, establish exclusive authority over property devised to several beneficiaries.
Beneficial Interest and Administrative Authority Are Not the Same
A beneficiary may have an interest in property without necessarily having authority to deal with the entire estate property personally.
Beneficiaries Can Protect Their Rights
A beneficiary who alleges infringement of his or her rights may have sufficient interest to defend those rights.
Customary Family Property Is Different
The rules applicable to customary family land should not automatically be applied to property expressly distributed under a Will.
Third Parties Must Investigate
Purchasers and lessees should investigate both the title to the property and the authority of the person purporting to deal with it.
CONCLUSION
When several people inherit an interest in property, the person who physically controls the property is not necessarily the person who has legal authority to sell, lease, mortgage or otherwise deal with it.
The eldest child does not automatically become the owner.
The person collecting rent does not automatically acquire exclusive authority.
The person regarded by the family as the “head” does not necessarily have authority over property that the deceased has expressly disposed of by Will.
The starting point is the legal basis upon which the property devolved.
Where there is a Will, the Court must give effect to the testator’s intention as expressed in that Will. Where customary family property is involved, the applicable customary family-property principles must be considered. Where a third party seeks to acquire an interest in the property, proper investigation of title and authority is essential.
Ultimately, the question is not simply:
“Who is the eldest beneficiary?”
It is:
“Who has the legal authority to deal with this particular property, and what is the source of that authority?”
That question should be answered before a sale, lease, mortgage or other transaction involving inherited property is concluded.
Disclaimer
This article is provided for general information and educational purposes only. It does not constitute legal advice and should not be relied upon as a substitute for advice on the particular facts of any case. The legal position may differ depending on the terms of the Will, the nature and status of the property, the applicable succession law, the status of the estate and other relevant circumstances. Professional legal advice should be obtained before taking action concerning inherited property.
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