Chukwuemeka A. Nnabuife ACIS
MEANING AND ROLE OF AN EXECUTOR IN NIGERIA
An executor is a person appointed by a testator to administer their estate after death according to the terms of the will (Akinyemi, 2018) [1]. In Nigeria, the executor’s authority is derived from the will but validated through a grant of probate by the Probate Registry under the High Court’s supervision (Administration of Estates Law, Lagos State, Cap A1) [2]. The executor ensures proper management and distribution of the estate, safeguarding beneficiaries’ interests.
EXECUTOR'S ROLE
An executor is a person appointed by the testator to manage and distribute their estate according to the will. The executor has the following role and responsibilities:
1. Management of estate property: The executor is responsible for managing the testator's property, including collecting debts, paying taxes and maintaining assets (Administration of Estates Law of Lagos State, 2015, Section 34) [3].
2. Preparation of inventory: The executor must prepare an inventory of the testator's assets and liabilities (Administration of Estates Law of Lagos State, 2015, Section 35) [4].
3. Distribution of assets: The executor must distribute the testator's assets according to the will
4. Accounting: The executor must provide an account of their administration to the beneficiaries and the court (Administration of Estates Law of Lagos State, 2015, Section 36) [5].
RIGHTS OF AN EXECUTOR
Authority to Act: Upon probate, the executor can manage and distribute assets (Nwabueze, 1972, p. 45) [6].
Right to Sue or Be Sued: Executors may litigate on behalf of the estate (Olawoyin v. Attorney-General, Northern Nigeria [1961] All NLR 269) [7]. Compensation: Executors may claim reasonable remuneration, subject to court approval (Administration of Estates Law, s. 33) [8]. Delegation: Executors can delegate tasks but remain accountable (Falade, 2020, p. 112) [9].
MANAGEMENT OF ESTATE PROPERTY
The executor must: Identify and value assets. Pay debts and taxes before distribution.
Distribute assets per the will (Wills Law, Lagos State, and Cap W2) [10]. Preserve estate property during administration (Nwabueze, 1972) [11].
Preparation of a Will by an Executor
In Nigeria, an executor drafting a will is not prohibited, provided it meets formalities under the Wills Law (Lagos State), including being written, signed by the testator, and witnessed by two non-beneficiaries (Wills Law, s. 9). Ethical concerns arise if the executor-lawyer benefits, potentially breaching fiduciary duty (Rules of Professional Conduct, 2007, Rule 14) [12].
PREPARATION OF A WILL AND CONFLICT OF INTEREST
A lawyer who is appointed as an executor can prepare the will, but they must avoid any conflict of interest (Nigerian Bar Association, 2007) [13]. The Rules of Professional Conduct for Lawyers, 2007, provide that:
1. A lawyer must not draft a will that gives them a benefit: Rule 24(1) states that a lawyer must not draft a will that gives them or their family members a benefit.
2. A lawyer must disclose any conflict of interest: Rule 24(2) states that a lawyer must disclose any conflict of interest to the testator and obtain their consent.
Fiduciary Duty and Remittance of Estate Funds
An executor has a fiduciary duty to manage the estate funds for the benefit of the beneficiaries. The executor must:
1. Keep estate funds separate: The executor must keep the estate funds separate from their personal funds (Administration of Estates Law of Lagos State, 2015, Section 37) [14].
2. Provide an account: The executor must provide an account of their administration to the beneficiaries and the court.
3. Remit estate funds: The executor must remit the estate funds to the beneficiaries according to the will.
Example
Let's say Mr. A, a resident of Lagos, appoints his lawyer, Mr. B, as the executor of his will. Mr. B is also the managing partner of a law firm that provides estate management services. Mr. A's will gives his lawyer, Mr. B, a bequest of ₦10 million.
In this scenario, Mr. B has a conflict of interest because he drafted the will that gives him a benefit (Nigerian Bar Association, 2007). Mr. B must disclose this conflict of interest to Mr. A and obtain his consent. If Mr. A does not consent, Mr. B must decline to act as the executor.
When Can an Executor Benefit from the Estate?
An executor may benefit if explicitly named as a beneficiary, provided the testator’s intent is clear and unforced. Misappropriation beyond the will’s terms violates fiduciary duty (Falade, 2020) [15].
Position of Law Where a Lawyer is an Executor A lawyer-executor faces heightened scrutiny under Nigerian law, particularly in Lagos. Lawyer as Executor and Will Drafter Fiduciary Duty: Executors must prioritize beneficiaries’ interests.
Undue Influence: A will be benefiting the drafter-lawyer may be voided if influence is proven (Ojo v. Gharoro [2006] 10 NWLR (Pt. 987) 173) [16]. Conflict of Interest: Self-benefit risks violating ethical rules.
Managing Estate Property through a Law Firm Legality: Delegation to a firm is allowed if reasonable (Administration of Estates Law, s. 34) [17]. Remitting Estate Funds: Funds must remain separate from personal accounts.
Fiduciary Duty: Self-dealing is prohibited (Nwabueze, 1972) [18].
Practical examples
Consider Mr. Ade, a Lagos lawyer, drafting Mrs Okonkwo’s will, bequeathing her Ikoyi property to himself as executor. Post-death, he applies for probate at the Lagos Probate Registry and uses Ade & Co. to manage the estate, charging high fees. Beneficiaries challenge the will for undue influence (Ojo v. Gharoro) and excessive fees (RPC, Rule 23). The Lagos High Court could invalidate the will or surcharge of Mr. Ade (Administration of Estates Law, s. 39).
A CASE STUDY AND JUDICIAL HOLDINGS
In Nigerian Bar Association v. A. O. Koku, ESQ [19].
FACTS OF THE CASE
George William Emodi Nicol, the testator in this case, passed away on December 17, 1994, leaving a will. The respondent, A. O. Koku, Esq., a legal practitioner, along with two others. Hon. Mr. Justice Olusola Thomas and Irene Onyegbutulem (Mrs.) were appointed as executors/trustees by the late George William Emodi Nicol in his will.
Shortly after G.W.E. Nicol’s passing, A. O. Koku, Esq., with the support of his co-executors/trustees, Hon. Mr. Justice Olusola Thomas and Irene Onyegbutulem (Mrs.), appointed his law firm, A. O. Koku & Co., as the solicitors for G.W.E. Nicol's estate. This appointment was formalized in a letter dated 4th January 1995, which was headed in the name of the deceased's estate but used the address of the respondent's law firm. The letter was signed by all three executors/trustees, including the respondent, and A. O. Koku & Co. acted as the secretariat for the estate's executors.
During his lifetime, the testator established a company called Apalagada Investment Limited in the Channel Islands. However, contrary to the testator's explicit instructions outlined in his letter of wishes (admitted as exhibit P4), which stated that Apalagada Investment Limited should continue to operate for twenty years after his death, the respondent, A. O. Koku, Esq., participated in the premature winding up of the company before the twenty-year period had elapsed.
Additionally, A. O. Koku, Esq., paid his law firm, A. O. Koku & Co., £20,000 as remuneration for professional services allegedly rendered to the estate, in which he also acted as a co-executor/trustee. The petitioner, Rowland B. Nicol, Esq., a beneficiary of the estate of G.W.E. Nicol (deceased), subsequently petitioned the Nigerian Bar Association on the following grounds:
1. That the legal practitioner, A. O. Koku, Esq., who was one of the executors of the estate of G.W.E. Nicol mismanaged the estate
2. That the legal practitioner, A. O. Koku, Esq., appointed himself as a solicitor to the estate of G.W.E. Nicol while still acting as an executor.
3. That the legal practitioner paid to himself the sum of £20,000.00 from the estate as remuneration and professional fees.
4. That the legal practitioner caused or participated in the premature winding up of the Apalagada Investment Limited contrary to the wishes and express intention of the testator.
The Nigerian Bar Association (NBA), as the complainant in this case, established a prima facie case of professional misconduct against the respondent. Consequently, they brought a complaint before the Legal Practitioners Disciplinary Committee. The petitioner, Rowland B. Nicol, testified as PW1 and submitted ten exhibits. The respondent, A.O. Koku, Esq., represented himself at the Committee and also testified on his behalf as DW1, with assistance from A.A. Koku, Esq., who appeared alongside him.
In evaluating the NBA's complaint, the Legal Practitioners Disciplinary Committee referenced the provisions of Section 12 of the Legal Practitioners Act (as amended, formerly Section 11) and Rule 49 (a) & (b) of the Rules of Professional Conduct in the Legal Profession.
(i)Section 12 of the Legal Practitioners Act as amended by Decree No. 21 of 1994.
"Section 12(l)(a)
1. Where -(a) a person who is a member of the legal profession is judged by the Disciplinary Committee to be guilty of infamous conduct in any professional respect; or
(b)...
(c)the Disciplinary Committee is satisfied that the name of any person has been fraudulently enrolled, the Disciplinary Committee, may, if it thinks fit, give a direction –
(i)ordering the registrar to strike that person's name off the roll; or
(ii)suspending that person from practice by ordering him not to engage in practice as a legal practitioner for such period as may be specified in the direction; or
(iii)admonishing that person, and any such direction may, where appropriate, include a provision requiring the refund of moneys paid or the handing over of documents or any other thing as the circumstances of the case may require."
(ii)"Rule 49(a) and (b)
49(a)The lawyer should refrain from any action whereby for his personal benefit or gain he abuses or takes advantage of the confidences reposed in him by his client.
(b)Money of the client or collected for the client or other trust property coming to the possession of the lawyer should be reported and accounted for promptly, and should not under any circumstances be commingled with his own or be used by him."
Held (Unanimously that:
1. On Conflict of interest as an executor of and solicitor to an estate –
A legal practitioner appointed by a testator as an executor of his Will cannot appoint himself or be appointed by other executors as solicitors to the estate as there is the likelihood of a conflict of personal interest. There is an apparent conflict where an executor/trustee of a deceased estate acts also as a solicitor to the estate, as in the instant case. In essence, a legal practitioner is either an executor to a Will if appointed by the testator or a solicitor to the estate if appointed by the executors but not both. (P. 450, paras. B-F)
2. On Conflict of interest where an executor also acts as a solicitor
Morality and law will not allow an executor to the estate of a deceased to also act as a solicitor to the same estate. (P. 453, para. C) Per ABDULLAHI IBRAHIM, SAN, (Chairman) at page 453, paras B-C:
"In the matter on hand, evidence has established that the respondent, as an Executor/Trustee of the estate of the deceased had got his hands deeply rooted in the appointment of his legal firm to act as solicitors to the said estate despite his appointment by the deceased as an Executor/Trustee per the terms of the Will i.e., exhibit PI. The two assignments, in our view, are not compatible. Morality and the law will not accept that kind of overbearing. We find the respondent's act to amount to unprofessional conduct..."
3. On Conflict of interest where the executor also acts as a lawyer –
It is trite that a lawyer or counsel will not be allowed to use his personal interest to conflict with the trust he is holding. Law, equity and conscience will not permit that. (P. 451, paras. D-E)
ADMINISTRATION LAWS OF ESTATES IN NIGERIA (FOCUS ON LAGOS STATE)
Estate administration in Nigeria is governed by state laws, customary practices, and English common law principles. In Lagos, key statutes are the Administration of Estates Law (Cap A1) and Wills Law (Cap W2). The administration of estates in Nigeria is governed by the following laws:
1. Administration of Estates Law of Lagos State, 2015: This law governs the administration of estates in Lagos State (Lagos State Government, 2015) [20].
2. Estate Administration Law of Nigeria, 2004: This law governs the administration of estates in Nigeria (Federal Government of Nigeria, 2004) [21].
3. Probate and Administration of Estates Law, 1959: This law governs the probate and administration of estates in Nigeria (Federal Government of Nigeria, 1959) [22].
KEY FEATURES OF ESTATE ADMINISTRATION
Grant of Probate: Executors apply to the Lagos Probate Registry with the will and death certificate (Administration of Estates Law, s. 10) [23].
Process: Probate is granted after 14 days if uncontested (High Court (Civil Procedure) Rules, Order 55) [24]. Time Limit: Application must be within three months.
Letters of Administration: Administrators apply after 21 days with public notice.
Distribution: Statutory rules apply, prioritizing spouses and children.
Duties: Executors file tax returns, pay estate duties (10% in Lagos), and maintain transparency (Falade, 2020, p. 130) [25]. Court Oversight: The Lagos High Court resolves disputes and can remove executors for misconduct.
Section 46 of the Administration of Estates Law governs the mode of distribution of the residuary estate of a deceased person who died intestate. They are in the following categories:
Surviving husband or wife
If the intestate leaves a husband or wife without any issue (child), no parent, or brother or sister of the whole blood or children of a brother or sister of the whole blood, then the surviving husband or wife takes the residuary estate absolutely. In other words, where a man dies without a child, and has no parent or brother or sister of the same parent (or even their children), then his surviving wife takes his residuary estate exclusively, without sharing same with anybody.
Surviving husband or wife and children
If the intestate leaves the issue (child), whether or not he leaves parent or brother or sister of the whole blood, the husband or wife will take the personal chattels (cars, clothing, books, shoes, jewellery, furniture, pictures, wines and such other assets of personal use) absolutely, and in addition, the husband or wife will take one-third of the residuary estate whilst the surviving issue takes two-thirds thereof.
Surviving husband or wife with no issue
If the intestate leaves a surviving husband or wife, a parent, a brother or sister of the whole blood or their issue but leaves no issue of his own, then the surviving husband or wife takes the personal chattels absolutely, and in addition, also takes two-thirds of the residuary estate. Either one or both parents will take the remaining in equal shares absolutely, whether or not the intestate leaves brother or sister of the whole blood. But where the intestate leaves no parent, the brothers and sisters of the whole blood take the remaining one-third in equal shares.
Intestate without surviving husband or wife
If the intestate leaves no husband or wife the residuary estate will be held for the issue of the intestate that is the children. The problem here always is when the children are still minors; it is always a challenge to determine who manages on their behalf in the absence of their biological parents.
Intestate without surviving husband or wife or issue
If the intestate leaves no husband or wife and no issue but both parents, then the residuary estate will be held for the father and mother in equal shares. If the intestate leaves only one parent, the residuary will be held for the surviving parent.
Intestate without husband or wife or issue or parent
If the intestate leaves no surviving husband or wife or parent or issue, then the residuary estate will be held for the following persons living at the death of the intestate, in the following order and manner, namely:
First, brothers and sisters of the whole blood and where there is no brother or sister of the whole blood, then brothers and sisters of the half blood. If the intestate leaves no brother or sister of the whole or half blood, then to the grandparents of the intestate, and if more than one survives the intestate, in equal shares. If the intestate leaves no brother or sister of the whole or half blood and no grandparents, then to the uncles and aunts of the intestate, first to those of the whole blood and if none, then to those of the half blood.
Intestate without survivors
If the intestate died without a survivor, the residuary estate of the intestate shall belong to the State as bona vacantia, and in lieu of any right to escheat.
RULES OF PROFESSIONAL CONDUCT FOR LAWYERS IN NIGERIA
The Rules of Professional Conduct for Legal Practitioners 2007 (RPC) governs lawyers’ ethics, enforced by the Legal Practitioners Disciplinary Committee (LPDC)
Key Provisions
Rule 1: Lawyers must act competently and diligently (RPC, 2007). Rule 14: Avoid conflicts of interest unless disclosed and consented (RPC, 2007). Rule 16: Keep client funds separate and remit promptly (RPC, 2007). Rule 17: No undue influence over clients (RPC, 2007). Rule 23: Fees must be reasonable (RPC, 2007).
Consequences
Breaches lead to suspension, disbarment, or fines by the LPDC (Legal Practitioners Act, Cap L11, s. 11) [26].
Based on the above illustration and Judicial authority, If Mr. Ade benefits himself and overcharges via Ade & Co., the LPDC could sanction him under Rules 14 and 16, and the Lagos High Court might order restitution.
CONCLUSION
In Lagos, a lawyer-executor can draft a will and benefit if named, provided no undue influence exists (Wills Law, s. 9; Ojo v. Gharoro). The Administration of Estates Law and RPC demand transparency and fiduciary loyalty. Using a law firm is lawful if fees are reasonable and funds are properly managed (RPC, Rule 16). Ethical breaches, as in Mr. Ade’s case, risk legal and professional consequences.
Footnotes
[1] Akinyemi, O. (2018). Nigerian Law of Succession: Principles and Practice. Lagos: Princeton Publishing.
[2] Administration of Estates Law, Lagos State, Cap A1, Laws of Lagos State of Nigeria, 2003. [3] Administration of Estates Law, Lagos State, Cap A1, Laws of Lagos State of Nigeria, 2003.
[4] Administration of Estates Law, Lagos State, Cap A1, Laws of Lagos State of Nigeria, 2003.
[5] Administration of Estates Law, Lagos State, Cap A1, Laws of Lagos State of Nigeria, 2003.
[6] Nwabueze, R. N. (1972). Nigerian Land Law. Enugu: Fourth Dimension Publishers. [7] Olawoyin v. Attorney-General, Northern Nigeria [1961] All NLR 269.
[8] Administration of Estates Law, Lagos State, Cap A1, Laws of Lagos State of Nigeria, 2003.
[9] Falade, A. (2020). Estate Administration in Nigeria: Law and Practice. Ibadan: University Press. [10] Wills Law, Lagos State, Cap W2, Laws of Lagos State of Nigeria, 2003.
[11] Nwabueze, R. N. (1972). Nigerian Land Law. Enugu: Fourth Dimension Publishers. [12] Rules of Professional Conduct for Legal Practitioners, 2007, Nigerian Bar Association. [13] Nigerian Bar Association (2007). Rules of professional conduct for lawyers.
[14] Administration of Estates Law, Lagos State, Cap A1, Laws of Lagos State of Nigeria, 2003
[15] Falade, A. (2020). Estate Administration in Nigeria: Law and Practice. Ibadan: University Press.
[16] Ojo v. Gharoro [2006] 10 NWLR (Pt. 987) 173. [17] Administration of Estates Law, Lagos State, Cap A1, Laws of Lagos State of Nigeria, 2003.
[18] 432 NWLR 7 (2006), before the Legal Practitioners Disciplinary Committee of the Body of Benchers held in Abuja, in Complaint No: BB/DCNB/039
[19] Nwabueze, R. N. (1972). Nigerian Land Law. Enugu: Fourth Dimension Publishers.
[20] Lagos State Government (2015). Administration of Estates Law of Lagos State
[21] Federal Government of Nigeria (2004). Estate Administration Law of Nigeria.
[22] Federal Government of Nigeria (1959). Probate and Administration of Estates Law.
[23] Administration of Estates Law, Lagos State, Cap A1, Laws of Lagos State of Nigeria, 2003.
[24] High Court (Civil Procedure) Rules, Lagos State, 2019. [25] Falade, A. (2020). Estate Administration in Nigeria: Law and Practice. Ibadan: University Press.
[26] Legal Practitioners Act, Cap L11, Laws of the Federation of Nigeria, 2004.
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