The concept of Next-Of-Kin in law, has many a time been misconceptualized even by the intellectuals and most especially the public. Generally, sizeable numbers of people have misunderstood the person (Next-Of-Kin) to be someone who has the legal right to acquire, distribute, be in charge of, or dictate about the distribution, administration, and management of properties… and wealth of any person to whom he/she is serving as a Next-Of-Kin to after their death.
Indeed, this has led to several confrontations amongst laymen and has equally generated the questions of Who and What are the legal functions, rights and obligations of a Next-Of-Kin.
WHO IS LEGALLY RECOGNIZED AS A NEXT-OF-KIN?
According to the BLACK’S LAW DICTIONARY which defined the term as: that “In the law of descent and distribution, this term properly denotes the person nearest of kindred to decedent or declarant, that is those who are most nearly related to him by blood.” The cited definition also received a judicial blessing in the case of ABIODUN JOSEPH V FAJEMILEHIN O.O & ANOR (2012) as EJEMBI EKO J.C.A as he then was, adopted this definition in the course of giving his judgment.
In furtherance, it can be deduced from the above definition that in the eyes of the law, a next-of-kin is someone that has a close relationship primarily by blood with a declarant or decedent. For the purpose of simplicity, a decedent means a dead person, while declarant implies someone who makes a formal declaration or statement.
DOES BEING A NEXT-OF-KIN MEAN HAVING A RIGHT TO INHERIT A DECEDENT?
Going by the legal definition of the term next-of-kin, one could determine that a next-of-kin neither carry legal obligation nor rights. However, a further critical examination as it shall be subsequently discussed held otherwise in a slight exception.
A decedent (dead person) either dies a testate or intestate, a decedent who died leaving a Will behind is legally said to have died testate and if otherwise, is said to have died intestate. Indeed, a decedent who died testate that is: he/she left behind a legally binding Will stating how his/her properties and estates should be shared among his/her relatives mentioned in the document, as such, there is no need for the claim of next-of-kin. All that has been written shall be adopted and enforced.
However, the question of inheritance of a decedent who died intestate, as to who has the legal right to inherit his/her properties and estates has been determined by the provisions of the law. In essence, such laws include Islamic law, customary law, English law or administration of estates law or laws of coordinate jurisdiction depending on the religion and the type of marriage such a decedent had with his/her spouse. See the case of Kekereogun & ors v Oshodi 1971.
By implications, in either of the two circumstances, a next-of-kin doesn’t have right, or obligation with respect to inheritance of a decedent unless such a next-of-kin name is included in the Will of the decedent or by his/her status such as a son to his father, a son is entitled to the property of his father and not as his next-of-kin. And on the other hand, in the case of a decedent who dies intestate, the inheritance process will be as per the provisions of the law.
THEN, ARE NEXT-OF-KINS USELESS?
Having a Next-of-kin is very important and useful, a declarant should also be mindful when selecting a next-of-kin. Therefore, a next-of-kin is someone who has the obligation to decide for you in times of emergency, or in a circumstance where you’re out of jurisdiction (not physically available). He/she is also saddle with the responsibility to decide for you in case of medical disposition such as surgery among others. He/she is simply a first contact if anything should happen to you.
Moreover, a next-of-kin can sue persons, agencies, and institutions in respect of the declarant for the enforcement of his (the declarant’s) rights if breached. By virtue of Section 46 sub 1 of the Nigerian 1999 constitution as amended which provides that any person who alleges that any provisions of chapter 4 (Human Rights Chapter) has or is or may likely be contravened in relation to him can seek redress in a court.
Further interpretation of this section was made in the case of Dilly vs IGP & Ors (2016) YARGATA BYENCHIT NIMPAR, J.C.A as he then was made a judicial interpretation of “Any person” as stated in section 46 sub 1 of the Nigerian 1999 constitution as follows that‘any person´ includes the ‘next of kin’ of a person whose rights have been violated. Meaning that, a next-of-kin has locus standi (the right to sue) any person, institutions, and authorities as it may require with respect to the enforcement of human rights of a decedent or declarant. See also the case of Ahmad vs. S.S.H.A (2002) 15 NWLR (Part 791)539@563.
Conclusively, having a next-of-kin is an act that every rightly guided minded human being cannot do away with, however, the erroneous justification of the masses on whether being a next-of-kin to a declarant denotes having legal right to the declarant properties is unlawful, and it’s against the provisions of the law.
Olayemi writes from Bayero University, Kano and can be reached via badmusuthman1999@gmail.com
