Herbert Wigwe: The estate, family and the law, by Onikepo Braithwaite

Last week, social media was awash with stories about the Wigwe family and the ruling delivered by Honourable Adeyemi J of the Ikeja High Court (Family and Probate), which arose from a motion for interlocutory injunction brought by the claimant/applicants, in suit number ID/7735FPM/2024 In the Matter of the Administration of the Estate of Late Mr Herbert Onyewumbu Wigwe – Christian Wigwe and Pastor Shyngle Wigwe v Uche Wigwe, Aigboje Aig-Imoukhuede and Otutochi Wigwe (the Ruling). I decided to read the ruling and discuss it before social media drenches the whole place with misinformation. Let me state categorically that I take nobody’s side here; I’m only interpreting the law as it relates to the facts of this motion correctly. But, if I was constrained to choose a side, as a mother, I would choose the side of Herbert Wigwe’s children, particularly the minors who have been orphaned so early in life, and ensure that their interest is well protected.

Testate and Intestate

But, before I delve into the ruling, I will briefly mention, in as simple terms as possible, the two situations that arise upon death – where a person dies and leaves a will, Testacy, (see the Wills Law of Lagos State 2004 (WL)) or dies without leaving a will, Intestacy (see the Administration of Estates Law of Lagos State 1959 now 2015 (AEL)).

Section 2(1)(a) & (b) of the WL refers to the deceased’s spouse(s) and children as the family and dependants of the deceased (different states have their definition of dependants), while Section 4 thereof provides for the requirements of a valid will – (a) that it is in writing; (b) signed by the Testator; (c) signed by the Testator in the presence of at least two witnesses; (d) the witnesses attest and subscribe to the will in the presence of the Testator. Obviously, a Testator must be of sound mind and at least 18 years old (see Section 3 of the WL), and the will must be made voluntarily. A will made outside Nigeria can also be valid in Nigeria if it meets the right conditions.

Revocable Trust, another tool adopted by Herbert Wigwe, may also be used in place of or alongside a will. It doesn’t require a Probate, ensures privacy as the assets and beneficiaries don’t have to be disclosed, allows assets to be transferred from one generation to the other, and is administered by the Trustee.

The second scenario in death, intestacy, was what I used to cut my legal teeth on, as a fresh wig in 1991, newly employed at Priscilla O. Kuye & Co. One of the first cases that was assigned to me was Onye v Onye, in which the deceased, Mr Onye, who married under the Marriage Act, died rather suddenly after a very brief illness. The marriage was blessed with six children – five girls and a boy. I applied for Letters of Administration, with Mrs Onye and her first daughter, who was of age, as Administrators. Late Mr Onye’s brothers then filed a caveat, insisting that they should be joined as the Administrators, instead of the widow and child, or in the alternative as Co-Administrators. Needless to say, we went to court, and I won the case for Mrs Onye. The court declined to join the Brothers Onye as Administrators, whether sole or joint.

It was from handling that case that I became conversant with the Administration of Estates Law of Lagos State (AEL), particularly Section 49(2)(a) & (b) (now Section 46), which fitted the circumstances of Mrs Onye like a glove, and provided, inter alia, that when a person dies intestate and leaves a spouse and children, the spouse is entitled to the deceased’s personal chattels and one-third of the estate, while the children of the deceased are entitled to the other two-thirds of the estate.

Background

In the case of Herbert Wigwe, though his will was made outside Nigeria, it covers everything that belongs to him, both personal and real property, within and outside Nigeria, and has since been submitted to a Probate in Nigeria. In his testaments, Herbert Wigwe named three people, alternatively, to be his personal representatives, and three people, alternatively, to be his trustees. It is pertinent to note that in the two capacities, that is personal representative and trustee, late Doreen Wigwe and his first cousin, Uche Wigwe, are listed as first and third respectively, while an American, Ms Blanco, is listed as the second alternative personal representative, and Aigboje Aig-Imoukhuede is listed as the second alternative trustee. Ms Blanco subsequently declined to be the personal representative.

That said, the first point to note is that, in Lagos, dependants are defined as a spouse(s) and children, to the exclusion of all other relatives – see Section 2 of WL. The second point to note is that a community reading of Section 2 of the WL and the hierarchy of inheritance in the case of intestacy under Section 46 of the AEL, that where a deceased has a spouse and children, or no spouse and children, in the former scenario of testacy, the spouse and children are the dependants that can contest the will, and in the latter scenario of intestacy, the spouse and the children are the ones with the right to the deceased’s estate to the exclusion of all others.

The Ruling

The judge reduced the issues for determination in the motion on notice into three: (1) appointment of interim administrators; (2) appointment of interim guardians/supervision; (3) request for a Norwich Pharmacal Order. All the prayers of the Claimant/Applicants were, however, refused by the court in this well-considered ruling.

It was, indeed, a rather bizarre motion; an abuse of court process, surprisingly argued by a Senior Advocate of Nigeria, and not a ‘baby’ lawyer like I was when I handled the Onye case, as first, the prayers in the motion were practically a regurgitation of some of the prayers in the substantive suit!

The proper thing to do when the interlocutory prayers tend to coincide with the substantive prayers, is to ask the court for an accelerated hearing of the case. In Dustin Pharmaceutical & Chemical Co. Ltd v Beneks Pharmaceutical & Cosmetics Ltd & Ors (2008) LPELR-974(SC), the Supreme Court held thus: “….it has often been advised that in appropriate cases, a recourse to an order of accelerated hearing should be preferred to an interlocutory injunction, so that the matters in controversy can be settled once and for all.” I submit that the Wigwe case is one of those cases.

Conclusion

While the first Claimant/Applicant, Christian Wigwe, may be Herbert Wigwe’s cousin, and the second Claimant/Applicant, Pastor Shyngle Wigwe, is Herbert Wigwe’s father and 90-year-old patriarch of the Wigwe family, their familial relationships do not appear to endow them with the locus standi to have brought this application, which in itself is an abuse of court process, particularly as Herbert’s wishes as to his personal representatives, trustees, and bequests have been clearly stated.

Finally, as a lawyer of over 33 years standing, my recommendation to litigants is always to first explore alternative dispute resolution, particularly mediation/amicable settlement. Litigation should be a last resort. This is because with mediation, it’s usually possible to emerge with a settlement that leaves all parties fairly satisfied, and in the case of a family, reconcile them. But, with litigation, only one party usually emerges victorious – a winner-takes-all scenario – more so, when the writing can clearly be seen on the wall, and in a family matter, this will only engender polarization and enmity.

Braithwaite, a lawyer, wrote from Lagos.