OMONUWA v. EDEGBE & ORS (2022) LPELR-57135(CA)
Issue
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
“The Appellant’s suit at the lower Court is founded in his belief that property No. 173, Uselu/Lagos Road, Benin City is not captured in the Will. However, the contention of the 1st, 3rd and 4th Respondents is that it is captured by virtue of clause 36 of the Will which has incorporated the said property as residuary estate which states: “I hereby direct that my properties not specifically mentioned herein shall be shared amongst my children.” Residuary Estate is defined in Black’s Law Dictionary, 9th Edition as: “Part of a deceased’s estate remaining after the payment of all debts, expenses, statutory claims, taxes, and testamentary gifts (special, general and demonstrative) have been made.” It is without doubt that residuary estates are gifts that remain and are not specifically devised after all the debts and liabilities of the Testator have been cleared and paid. As rightly submitted by counsel for the 1st Respondent, the essence of making residuary gift is that it prevents partial intestacy, whereby some properties may fail or may not be disposed of if no provisions are made for what will happen to the residue of the estate. The appellant has challenged the inclusion of property No. 173, Uselu/Lagos Road, Benin City in the inventory. The respondents, particularly 1st, 3rd and 4th respondents are in sharp disagreement with his position The first point I must make here is that he has failed to challenge that inclusion when the letters of Administration was granted and therefore having formed part of the deceased Testator’s Will upon which the letters of Administration was granted to the Administrators, he cannot challenge their right to perform their duties under the letters of Administration by exercising their powers and control over it. More so, even in the suit leading to this appeal, the appellant did not challenge the letters of administration based on the inclusion of the properties not captured in the Will. Secondly, and more importantly the inclusion of Clause 36 in the Will put the Executors/Administrators on the notice to investigate any of the Testator’s properties that were not captured in the Will. Since that property was revealed to them, it would have amounted to an act of dishonesty or indolence not to have included those properties in the inventory. This is because the directive in clause 36 was directed to them. Therefore they could not be seen to have performed their duties under the Will well without identifying those properties that were not specifically captured in the Will. I have no doubt in my mind that those properties did not fall into intestacy. They formed part of the Will for which the Executors/Administrators were given letters of Administration to deal with. Perhaps the appellant’s case might have fared better if his case was that, as the 1st son that property is the Igi-ogbe. Even in that case, it is the Will he would have challenged and not wait till letters of administration had been issued to the Executors/Administrators.” Per JAMES GAMBO ABUNDAGA, JCA (Pp 34 – 36 Paras A – D)
✍️ C.K. ANYANWU ESQ
PUBLICITY SECRETARY,
NBA-ABA, BRANCH