Can an illegitimate child inherit from his father or mother in the event of their death?
A child is legitimate if he or she is born in lawful wedlock- LAWAL V. YOUNAM (1961) WNLR197. It follows
therefore that a child conceived and born outside wedlock is illegitimate. Outside wedlock means that the parents
are not validly married to one another. Under Nigerian customary law, a child is considered legitimate if the
paternity of the child is acknowledged by the father of the child before or after the birth of the child. An
illegitimate child can become recognized as legitimate through a process known as Legitimization. Legitimization
may occur through either of the following processes:
(i) Marriage: a child born out of wedlock would become legitimate if its parents eventually get married to each
(ii) Acknowledgment: This is a process of legitimization known only to Customary Law. A child becomes
Legitimate when his father acknowledges paternity by acknowledging the child as his. However,
acknowledgement would not make an illegitimate child legitimate if that illegitimate child was bom out of
wedlock during the subsistence of a valid statutory marriage- COLE V AKINYELE(1960) 5 FSC 84 In this case
the man While in a statutory marriage went to marry another woman under customary law which produced three
children, the court held that the children were illegitimate as they ought to have been a statutory marriage to
legitimate the children.This is aimed at protecting the sanctity of marriage
(iii) There can also be legitimization by Subsequent Marriage.
Also in Igboland there can also be legitimization by payment of dowry.
Illegitimacy poses some problems when it comes to succession. Succession means the process of inheriting
property from a deceased person. When the deceased made a valid will before his death, there is usually no
problem. However, problem arises when the deceased died intestate; that is without a will and this problem is
further compounded where the paternity of the child is not acknowledged by the deceased before his death, either
because he did not know about the existence of that child, or for one reason or the other.
This raises the question: Can an illegitimate child inherit from his father or mother in the event of their death?
The answer to the question is in the affirmative. A child irrespective of whether he is considered to be illegitimate
can inherit alongside his legitimate siblings in the event of the death of his parents. At common law an illegitimate
child was considered a FILIUS NULLIS (incapable of inheriting property from his parent). However, under
Section 10 of Nigerian Legitimacy Act an illegitimate child can now inherit from his mother.
Formerly under the Nigerian Law, before the 1999 constitution came into force, an illegitimate child had no
Inheritance Rights in his father’s Estate- OSHO v. PHILIPS, however, the position has been altered by the 1999
The effect of Section 42(2) of the 1999 Constitution of Nigeria (As Amended) is that it has conferred equal
Succession/Inheritance rights on the illegitimate child and the legitimate child. Therefore, the distinction between
an illegitimate child and a legitimate child is a distinction without any legal consequence or implication.
In A LAKE v. PRATT the court found it contrary to public policy to place children born outside lawful wedlock on
the same pedestal as legitimate children This position has however been countered by Section 42 of the 1999
Constitution which provides that no citizen of Nigeria shall be subject to any form of disability or deprivation by
reason of circumstances of his birth. The Legitimate child or a child bom during the subsistence of a valid
marriage has an automatic right to a share in his father’s property, while the right of the illegitimate child to have a
share in the estate (property) of his deceased father is predicated upon his ability to establish that he has been
acknowledged by his father in his lifetime as his child and is therefore entitled to a share in his father’s estate. In
the case of a child who was never acknowledged by his father in his lifetime for one reason or the other, he can
only become entitled to a share of his father’s estate if he is able to adduce clear and credible evidences such as
Birth Certificate, Forms and Photograph or other documentary evidence which proves that he is a child of the
deceased. The case of VKEJE v. VKEJE is very illustrative of this point as the respondent won the case solely on
In UKEJE v. UKEJE (2014) LPELR-22724(SC), the Supreme Court finally resolved the uncertainty surrounding
the inheritance rights of illegitimate children when it stated that: The trial court, I hold did rightly declare
Unconstitutional, the law that disinherits children from their deceased father’s estate. It follows therefore that the
Igbo native law and custom which deprives children born out of wedlock from sharing the benefit of their father’s
estate is conflicting with section 42(2) of the constitution of the Federal Republic of Nigeria, 1999 (as amended).
Section 42 of the Constitution entrenches the right to freedom from discrimination and section 42(2) particularly
provides that no citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the
circumstances of his birth. It is for this reason that an illegitimate child cannot be robbed of his right to inherit his
from father’s estate (property).
OKONKWO v. OKONKWO (2014) 17N. W.L.R (pt. 1435) 18 was held that: by virtue of section 42 of the
Constitution of the Federal Republic of Nigeria 1999, children born out of wedlock but whose paternity was
acknowledged by the intestate have equal share with the children of the marriage.
In conclusion, although the process of proving the paternity of an illegitimate child is cumbersome, particularly
where the deceased died intestate. Once it is proven, the web of stigmatization hitherto placed on an illegitimate
Child will be removed and he/she will be on the same pedestal as the legitimate child consequently giving him/her
the right to partake in the succession process
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