Abstract

Succession is the devolution or transmission of property to a living person upon the death of its owner. There are two forms of succession, testate succession and intestate succession. Testate succession is when a person dies living behind a valid Will on how his estate will be administered, and the person’s estate must be administered as directed in intentions of the person making it, the matters which he wishes to take effect on or after his death. Intestate succession on the other hand is a situation where a person dies without a valid Will on how his estate will be administered. The meaning and legal impetus to the term “next of kin” have been a misnomer. It appears, though erroneously, that the general tendency is that once you are appointed the next of kin of a person, it automatically gives you the right to inherit the person’s estate upon his demise. One is tempted to ask can a next of kin automatically benefit under the law of succession. This article attempts to bring clarity in respect to the meaning and position of a next of kin under testacy and intestacy which goes a long way in resolving succession controversies in Anglophone Cameroon most especially due to the absence of Statutory Law on succession in Cameroon as a whole.

Key Words: Next of kin, beneficiary, testacy, intestacy, personal representative and Will

Chapter One: General Introduction

1.1 Background to the Study

Cameroon is still without a Uniform Family Code[1], and as such, matters of succession are either determined by applying the English Common Law in the Anglophone regions by virtue of Sections 11 and 15 of the Southern Cameroon High Court Laws 1955[2], or the French Civil System in the Francophone regions by virtue of a Decree of 1924 rendering the application of French law[3] in Equatorial Africa. Cameroon therefore has a bi-jurial system. Cameroon being a Bi-jurial state that is it has two systems of law, the English Common Law practised in Anglophone Cameroon and the Civil Law mostly practised in French Cameroon.

 The laws governing succession law in Anglophone Cameroon are drawn from English and Nigerian statutes. The most important English statutes on the subject are the Wills Act of 1837, Wills Amendment Act of 1852 and the Administration of Estates Act 1925. The latter repealed and consolidated all previous legislation on the subject some of which smacked of customary law. It governs administration of estates generally and there is also the Non-Contentious Probates Rules of 1954, now repealed and replaced by the Non-Contentious Probate Rules of 1987, which governs the designation of personal representative. There is also the Supreme Court Act of 1981 which is applicable as far the previsions dealing with probate are concerned. These are applied together with Administrator-General Ordinance, Cap 4 of the 1948 Laws of Nigeria; Order 48 Rules 1(1) of the Supreme Court (Civil Procedure) Rules Cap 211 of the 1948 Laws of Nigeria and the Evidence Ordinance Cap 62 of the 1958 Laws of the Federation of Nigeria[4]. Apart from English Law, Anglophone Cameroon law of succession comprises equally of customary law which encompasses Native law and customs[5] and Muslim law[6].

There is a general misunderstanding around the implication of the appointment of a next-of-kin to legal documents. People think once a person is appointed as next-of-kin; it automatically gives him or her the right to inherit whatever property the appointer has upon his demise[7].

Also, the belief and understanding of the term have made many people to minimise the need to make a Will, on the assumption that mere mention of their next-of-kin is enough when they die. This is because they think that appointing a next-of-kin is a way of endorsing a beneficiary. However, next-of-kin refers to a person’s closest living blood relative. The next of kin relationship is important in determining inheritance rights if a person dies without a Will and has no spouse or children.

Most of our everyday transactions now involve paperwork. Whether you are at a bank, a hospital, or preparing to board a flight or other public transportation, or filling out an employment contract, you may be required to designate someone as your next-of-kin. Have you ever wondered about the significance of this designation? Is it merely for emergency contact purposes, or is it for purposes of succession?

The question of who is entitled to inherit from a deceased’s estate is solely a question of law, which could either be under the English Received law, French Received law and Customary Law[8].  Essentially, succession is regulated by law and the mode of succession is largely dependent on two factors, namely, in case of testacy or intestacy and the applicable law for the distribution of the deceased’s estate in either case shall be determined by the incidence of marriage of the deceased or his personal law[9].

Furthermore, questions as to the persons having a legal capacity to sue with respect to the estate of a deceased, whether a next of kin decision attributes capacity to sue and be sued over the estate of a deceased, whether a next of kin decision is a prerequisite for the grant of letters of administration[10] are inevitable in succession matters and in determining the status and powers of a next of kin.

This study discusses the concept of next of kin, delving into its significance and examining the position of next of kin under testacy and intestacy. The duties of executors and administrators and rights of beneficiaries are not left out for a complete understanding.  

1.3 Research Questions

General Research Question

What is the legal implication of a next of kin under succession law in English Cameroon?

Specific Research Questions

1. What is the Meaning of Next of kin?
2. What is the  Position of Next of Kin under Testacy?
3. Legal rights and obligations of next-of-kin?
4. what is The Position of a Next of Kin under Intestacy?