Modernism and intestate inheritance in South East Nigeria: rethinking the distributive justice theory

Abstract

In Nigeria, the practice of disinheriting some heirs from intestate property is prevalent in the majority of south eastern states, especially amongst custodians who insist on age-long traditions. Despite Supreme Court decisions that have voided unequal and discriminatory inheritance in accordance with section 42(1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), some of these customs continue to discriminate in intestate situations. This paper will adopt a doctrinal approach to give an overview of intestacy and the practice of intestate inheritance in south east Nigeria. It will identify two modern theories, and explain them in light of inheritance. The objective of the paper is to proffer a modern theory of law that accommodates a fair distribution of property in intestate circumstances while having regard to the maintenance of the legacy of the deceased. The work professes a more accommodating approach to the problem of discriminatory inheritance, and recommends amongst others, a capability dependent distributive justice theory which it believes is a modern, non-discriminatory, and fair approach to intestate issues in Nigeria.