Where a man dies without a will, but married under the
English law, the family members may apply for the letters of administration. The wife and one or two grown up children of the man who dies intestate are the family members qualified to apply for the letters of administration.  But where there is no wife or grown up children, then the siblings of the late man can apply. The application will be made to the High Court of the state where the property is located, and it will be issued in the names of those who applied for it.

These persons will also share the property as the case maybe. Alternatively application for the letter of administration may be made to the ministry of justice in the state.   In this case, it is the Administrator-General in whose name the letter with be issued that will administer the property for the family. Application to the ministry of justice is possible not minding whether the late man has married under customary or English law.

Where a man is married under the Islamic law, then his property will be shared according to the Sharia rules of inheritance. But if the marriage is under customary law, the applicable customary law will be used for the sharing. Another option is for the extended family members to use their discretion to decide on how to share the property among the immediate family of the late man.

The pattern of inheritance and succession under customary law in Nigeria have almost as many variations, as there are ethnic groups in the country. The general rule of customary law where a land owners dies intestate, is that his self acquired property devolves on his children as family property. This rule is known  as primogeniture rule. The head of the family is the eldest male child of the deceased who occupies the family house holds same as a trustee of the children.  However, the rule is different in certain localities. It is unfair to the younger children of the family, hence it is repugnant to natural justice, equity and good conscience. Though it has been argued that the system accords with native ideas, particularly the role of the eldest son as the “father of the family,” who has a legal obligation towards the children.

The right of the eldest surviving son to succeed his father in the headship of the family is automatic. Only the father as the owner and creator of the family property can deprive the eldest son of this right, by a valid direction made with the aim of ensuring that the affairs of the family are properly managed by a person qualified on the grounds of intelligence and education to do so. In the absence of any such direction by the father, the right of the eldest can cannot be taken away without his consent. But a right that arises by the operation of the law is liable to be abrogated or modified by a change in custom. An example of such right is the right to “Igiogbe house” which exists in Benin Kingdom.
The Igiogbe, which represents the family seat or principle house of the deceased is customarily inherited by the eldest surving son of the deceased after the performance of the second burial ceremonies (which I desire so much to be abolished). This has been the age-long custom of the Bini people. This custom has been judicially recognized by the Nigerian Supreme Court in the case of Arase V. Avase (1981) N.S.C.C 101. However in Idehen V. Idehen (1991) G.N.W.L.R (Pt 198)382 the same Supreme Court modified the definition of the Igiogbe under Benin customary law by introducing the concept of multiple Igiogbes, which was totally at variance with the hitherto acknowledged customary law definition. A testator cannot make a will and disinherit the eldest son of his customary entitlement to the “Igiogbe” for any reason.

This customary principle has received legislative approval by virtue of section 3 (1) of the wills law 29. This law is applicable in Edo State as the Wills Law of Bendel State.

On the 19th of April, 2013, the Nigerian Supreme Court in a unanimous decision upheld the Bini customary law of succession in which the eldest son is entitled to inherit the family’s principle house. “Igiogbe”.
The issue was the validity of a will by Pa Daniel Ediagbonya Uwaifo, a member of the Bini ethnic group who died in 1985, leaving behind two houses. Edward Omorodion Uwaifo, the eldest son (the appellant) who was left out of the will completely. Sought to have it vitiated in its entirety on the ground that it violated the Bini tradition of Primogeniture. The court sided with the appellant in part and invalidated the will to the extent that it had devised the Igiogbe to someone else.

Ewere resides in Port Harcourt