Generational Wealth And Legacy Transfer

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Proverbs_13-11: Wealth gotten by vanity shall be diminished: but he that gathereth by labour shall increase
Proverbs_13-11: Wealth gotten by vanity shall be diminished: but he that gathereth by labour shall increase

Generational Wealth And Legacy Transfer

 

Redeemer’s Men Fellowship, Region 11 Convention

 

(Being text of Paper delivered by Ebun-Olu Adegboruwa, SAN at the Convention of Redeemer’s Men Fellowship of RCCG, Region 11, at the Resurrection Grounds, Lekki)

 

 

 

Generational Wealth And Legacy Transfer:

 

A Legal Perspective By Pastor Ebun-Olu Adegboruwa, SAN

 

 

 

INTRODUCTION

I was delighted when I got the invitation to be part of this epoch-making event

which is no doubt relevant to our collective experience of nationhood, family and other endeavours. This Summit could not have come at a better time than now, when Nigeria is in search of enduring morality and values.

 

The first thing to note about transfer of anything is that you can only give what you have –quod non habet – no one can transfer wealth that he does not have or bequeath a legacy that does not exist. So, the priority of everyone should first be to gather wealth, sustain/preserve wealth and then transfer wealth.

 

In Proverbs 13:22A, it is stated that:

“A good man leaveth an inheritance for his children’s children.’

 

This group used to be called Excellent Men’s Fellowship and it has

metamorphosed over the years to its present stage. God is talking to the Excellent Men in Proverbs 13:22 above. To be a ‘good man’ before God, you must have wealth and legacy that can be inherited by your children and by others. The wealth is linked directly to your children and family whilst your legacy relates to them and beyond, to the society. Let us therefore follow the precepts of God and be ‘good men’.

 

 

 

DEFINITIONS

Before delving into this topic in more details, it is pertinent to identify and define the Key words used, to wit:

  1. Generation
  2. Wealth
  3. Generational wealth
  4. Legacy
  5. Transfer

 

 

GENERATION

According to Wikipedia, a generation refers to all of the people born and living at about the same time, regarded collectively or “the average period, generally

considered to be about 20–30 years, during which children are born and grow up, become adults, and begin to have children.” Without any doubt, one can say that we are in the generation of technology, or how else would you describe someone offering $44B to buy an invisible social media App majorly from an investment in which cars are driven without any engine? It is the generation of unlimited human exploration.

 

 

WEALTH

This means abundance of financial resources or physical possessions. According to Investopedia, it is an accumulation of valuable economic resources that can be measured in terms of either real good or money value.

 

 

GENERATIONAL WEALTH

This refers to assets that are passed down from parents to their children or

grandchildren. These assets can be in form of properties, bonds, monies, stocks or shares or ownership of a family business. It is generational wealth because it is shares or ownership of a family business. It is generational wealth because it is wealth that gets transferred from one generation of a family to the next.

 

Generational wealth may also take the form of education, contacts, ability to take greater risks and lucrative employment within a family business. It can occur on the death of a parent or other family member, or during the life of both people.

 

While many households can expect to receive some sort of generational wealth, a small number of transfers within wealthy families accounts for a majority of the total value of generational wealth transfers.

 

 

 

 

LEGACY

Legally speaking, this refers to money or properties left for a person in a Will. It also refers to something transmitted by or received from an ancestor or predecessor or from the past.

 

Legacy is beyond material possessions and as such, Legacy may include a good name, an unblemished record or image which one has sustained, sound principles and beliefs, character, reputation, philosophy or principles, all of which can be transferred to impact society and the environment, for good.

 

 

 

TRANSFER

The learned authors of Black’s Law Dictionary define TRANSFER as follows:

 

  1. To convey or remove from one place or one person to another; to pass or

hand over from one to another, especially to change over the possession or control of.

 

  1. To sell or give.

 

In the context of generational wealth, transfer connotes the conveyance of right,

title, or interest in real or personal property from one person to another, especially from the original owner, to another person linked or related to him, continuously in succession.

 

 

BIBLICAL PERSPECTIVES ON WEALTH

The concept of wealth creation and wealth transfer comes from God. The

fundamental knowledge about wealth creation is the fact that wealth belongs to

God and as such, it is a blessing from God, as stated in Psalm 24:1:

‘The earth is the Lord’s, and the fullness thereof; the world, and they that dwell

therein.’

Also, Proverbs 50:10 & 12B make us understand that:

10 For every beast of the forest is mine, And the cattle upon a thousand hills.

12b For the world is mine and the fullness thereof.’

Therefore, wealth should be used to the honour and glory of God, in fulfilment of the desire of God as stated in Zachariah 1:17 that “my city through prosperity shall be spread abroad”.

 

God delights in wealth transfer, as stated in Deuteronomy 8:18:

“But thou shalt remember the Lord thy God, for it is he that giveth thee power to get wealth, that he may establish his covenant which he sware unto thy fathers, as it is this day.”

 

God’s primary thought concerning us is to give us all-round prosperity, as stated in 3 John 2, through our contact with His son, our Lord Jesus Christ. Thus, in 2 Corinthians 8:9, the concept of generational wealth transfer was established:

“For ye know the grace of our Lord Jesus Christ, that, though he was rich, yet for your sakes he became poor, that ye through his poverty might be rich.”

 

 

Generational wealth transfer is God’s idea, as stated in Genesis 12:1-3, being the plan to bless and empower the patriarch and extend his blessings to his generations. This is demonstrated vividly in Genesis 22:17-18:

That in blessing I will bless thee, and in multiplying I will multiply thy seed as the stars of the heaven, and as the sand which is upon the sea shore; and thy seed shall possess the gate of thine enemies. And in thy seed shall all the nations of the earth be blessed.”

 

It is God’s will that we should pass down the wealth which he has blessed us with to our generations but beyond material things, we must leave a lasting positive legacy for our generations, as stated in various Bible passages:

Proverbs 13:22A:

‘A good man leaveth an inheritance for his children’s children…’

Proverbs 22:1:

A good name is rather to be chosen than great riches…’

 

 

Legal Perspectives Of Generational Wealth Transfer

 

Legally speaking, generational wealth and legacy (material possessions) can be

transferred through a GIFT INTER VIVOS, WILL, TRUSTS or CUSTOMARY SUCCESSION.

 

 

 

 

GIFT INTER VIVOS

A gift inter vivos simply means a gift made to someone during the lifetime of the giver. A gift inter vivos is an act whereby something is voluntarily transferred from the true possessor to another person with full intention that the thing shall not return to the donor and with the full intention on the part of the receiver to retain the thing entirely as his own without restoring it to the given.

 

 

It can be done by either executing a Deed of gift in favour of the beneficiary or

buying properties in the name of your children. This was developed to avoid cases of disputes after the demise of the parent, so that in his life time, he takes decision on wealth transfer and enforces it. An example of gift inter vivos in the Bible is in Luke 15:11-32, the story of the prodigal son.

 

Conclusively, one thing is needful with gift inter vivos which is that you follow up with your children to monitor what is being done with wealth transfer.

 

 

WILL

A WILL is a legal document through which an individual referred to as a testator, dictates how his/her property should be distributed after their demise. By authoring a will, an individual can make sure that his/her assets are passed down to his/her children, grandchildren, relations and even organizations, religious bodies and the likes, in a particular format

 

 

 

WHY WRITE A WILL?

  1. It eliminates the application of customary law to the deceased’s estate.
  2. It helps to determine how your properties would be distributed to avoid

confusion, wasteful dissipation of wealth/assets and intermeddling by

strangers.

  1. To appoint executors of your estate; Executors are the persons who control a

deceased’s estate and are responsible for the transfer of the deceased’s

properties to the beneficiaries. Therefore, they should be persons who are

trusted and responsible.

  1. To cater for matters such as guardianship, in a situation where the Testator

has young children or children with special needs.

  1. Specific instructions as to funeral arrangements can also be included in a

Will.

 

 

 

THE MAKING OF A WILL

Once you have anything of value, it is important to list them, identify them and

state the purpose. Prayerfully determine those who you can trust with a good sense of judgment as Executors but it is always better to consult your legal adviser to assist you in this regard. The issue with Wills is always about the good/bad intentions of the Executors/Beneficiaries.

 

MYTH– writing my Will means that I would die soon.

 

REALITY– writing my Will means that I am taking adequate precautions to dictate how my affair would be handled after my demise.

 

MYTH– disputes over properties only exist in polygamous families.

 

REALITY– disputes over properties exist in families where survivors are from the same parents.

 

 

 

JOINT OWNERSHIP

Another option is to acquire assets in the joint names of the couple, for instance to buy land in the name of Mr. Joe Musa and Mrs. Jane Musa, being careful to ensure that both names are reflected separately and not as Mr. and Mrs. Joe Musa. The couple should be careful to ensure that they sign on the document separately.

 

 

CORPORATE TRANSFER

This occurs where you own either businesses or companies, which will not by

operation of law devolve to your children, being that the operations of companies are regulated by law and there is no connection of blood or other relationship for corporate wealth transfer. In corporate wealth transfer, wealth/assets are owned by companies whose shareholders, directors and owners are your family members so that in case of untimely death, succession devolves automatically. A good example is Elizade Motors.

 

 

TRUSTS

This is governed by the Trustee Investments Act (Cap T22) Laws of the

Federation of Nigeria 2004. Trust refers to a legal arrangement wherein an

individual or an institution (a bank, law firm, Trust companies etc.) called

a “Trustee” holds legal title to the property of another individual known as a

Settlor” or “Grantor” for the benefit of another called a “Beneficiary”.

A Trust is created by a “Settlor”, who transfers some or all his or her assets to

a “Trustee”. The Trustee in turn holds all the assets for the beneficiary (ries). Title and property rights are usually transferred to the Beneficiary as set out in the Trust Deed. This arrangement can be most useful for providing for children who have not attained the majority age of 18 years.

 

 

 

WEALTH TRANSFER UNDER THE MARRIAGE ACT

By virtue of the Law, a person married under the Act is entitled to and inherits the estate of his/her spouse. That is, both husband and wife are entitled to each other’s estate upon intestacy (that is, where the person in question dies without making a will).

 

It is important to note that section 33 of the Marriage Act makes it illegal for

anyone already marriage under customary law, to contract a statutory marriage.

Under and by virtue of section 35 of the Marriage Act, statutory marriage is stated to be between one man and one woman and it is not possible for anyone already married under the Act to be involved in any subsequent marriage. This type of marriage is protected under section 39 of the Act which states that an unmarried cannot validly contract a marriage with a person already married under the Act.

 

Statutory marriage is the will of God for us all, stated in Genesis 2:24:

“Therefore, shall a man leave his father and his mother, and shall cleave unto his wife, and they shall be one flesh.”

 

The protection offered under statutory marriage is encapsulated in section 11 of the Act, which revokes any Will that does not take into cognizance an existing union:

 

“Every Will made by a man or a woman shall be revoked by his or her marriage

(Other than a marriage in accordance with Customary Law).

 

Statutory marriage is a method of guaranteeing wealth transfer, so long as one

spouse survives the other.

 

 

 

 

CUSTOMARY SUCCESSION

Customary law embodies the belief system and way of life practiced by a group of people which they regard as binding on them. Nigeria is made of over 250 ethnic groups and each have customs that are particular or specific to them. The

customary law applicable to a person generally, is the law of his/her place of

origin. Customary succession is therefore transfer done in accordance with the

native law, customs, traditions and belief of the particular people which is binding and enforceable. This would therefore ordinarily apply in the absence of a Will being made by the deceased.

 

 

 

ADMINISTRATION OF ESTATES

Human affairs are never predictable, at least in relation to the payment of the

compulsory debt that we owe our maker, to leave this world one day, through

death. It is an inevitable appointment that everyone must keep, but the issue is

always the time of that appointment, which is known to God Himself alone.

Because death could come unexpectedly, the law has made provisions for the mode of distribution of the estate of a person who departs unexpectedly without making adequate provisions for the sharing of his or her assets amongst the survivors.

 

Under and by virtue of section 7 of the Administration of Estates Law of Lagos

State, 2015, “where a person dies intestate under this Law in respect of the real

and personal estate, that estate will be deemed to have been vested, from the date of the death until administration is granted, in the Chief Judge …” This to me is most unfortunate, but the law is clear that survivors and family members of a man or woman who died without a Will have no power over his or her estate until administration has been granted by the Court.

 

In practice however, once a person dies, the family gather together in the name of culture and tradition, to assume power of administration the estate, especially for the purpose of distribution, amongst the survivors. Different States across the federation have different laws regulating the administration of estates but most States in the South West of Nigeria have similar laws to that of Lagos State quoted above. In some cases, decisions are taken by family members of the deceased that are patently inequitable but most people have come to accept this as normal, in order not to be branded as a witch or a greedy survivor.

 

A case was reported some years back of a prominent politician who died suddenly, leaving a wife with little children. Whilst the wife was still mourning her husband, the family gathered together and decided to send her back to her own family, they ejected her from the husband’s house forcefully, accusing her of killing their son.

 

In some other cases, brothers or sisters of the deceased are granted power of

administration over his estate over and above his wife and children.

 

Perhaps the first thing to take note of is the nature of marriage to be contracted.

Based on my personal experience in court cases on this issue, it is best never to

give out your daughter through customary marriage, no matter the circumstance. It is like throwing the poor girl away into eternal bondage forever. Most cultures in Nigeria have no regard for the status of the woman in marriage, either as an

equitable investor or a stakeholder in the family or even as a survivor and potential beneficiary of the assets of deceased spouse. This is the prevailing culture in Yorubaland, as with most other cultures, as illustrated in the case of AKINNUBI & Yorubaland, as with most other cultures, as illustrated in the case of AKINNUBI & ANOR V. AKINNUBI & ORS (1997) LPELR-352(SC):

 

“Now, under Yoruba customary law, a widow under an intestacy is regarded as

part of the estate of her deceased husband to be administered or inherited by the

deceased’s family; she could neither be entitled to apply for a grant of letters of

administration nor to be appointed as co-administratrix of her deceased husband’s estate.” Per ONU, J.S.C.

 

This has also been demonstrated in the death of prominent traditional ruler in the South-West, with various interpretations of how his estate will be distributed.

 

The starting point is to always insist on a legal marriage, with the evidence of a

certificate from the appropriate Marriage Registry, in order to protect the couple, in case of any eventuality. This is because marriage itself plays a significant role in the distribution of the estate of a dead person as no one can exclude the lawful spouse of a person from benefitting.

 

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, 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 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, jewelleries, 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 absolutely.

 

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 absolutely. If the intestate leaves only one parent, the residuary will be held for the surviving parent absolutely.

 

 

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.

 

 

THE DANGER OF PLANLESSNESS

From all that you have read so far, you would have heard that sharing the estate of a person who dies without a Will, will most likely run into controversies. You would therefore do best to avoid that, by either proceeding to write your WILL immediately or take any of the steps that I have suggested herein, before stranger stake over your estate after you have gone. Let me share with you a practical example.

 

On Friday, January 17, 2020, the Supreme Court handed down a decision which

highlighted the dangers of customary marriage, in the case of Delphine Zikere

Okonkwo v. Amaka Ezeaku & Administrator-General/Public Trustee, Enugu State.

 

It bordered on the estate of a renowned Senior lawyer and prolific author. In this

case, the Senior lawyer married under native law and custom in 1976 and the

couple had one female child. Subsequently in 1988 the couple separated and

remained so till the death of the Senior lawyer in 2005. The marriage was not

formally dissolved in accordance with the native law and custom under which they got married. During the period of the separation, the Senior lawyer got married to another woman in 1992, under native law and custom and they had two children.

Sometime in 1988, he swore to an affidavit wherein he deposed inter alia that the latter woman was his lawful wife and that he had no other wife. Upon his death without a Will, his estate was placed under the management of the Administrator General/Public Trustee. The first wife, standing on her marriage with the deceased which was not formally dissolved, sought to partake in the distribution of the estate of the deceased as managed by the second wife. The case travelled from the High Court to the Supreme Court, which court held that the affidavit of the deceased was not sufficient as it did not in any way expropriate the estate of the deceased to his second wife. The court held that without a formal dissolution of the customary marriage to the first wife according to native law and custom before contracting another marriage also under native law and custom, the first wife is entitled to partake in the sharing of the estate of the deceased. Although the decision of the Supreme Court is sound in law, the lesson in it is that it does not reflect the wish of the deceased. This can be avoided through writing a WILL.

 

 

 

THE ENDURING LEGACY

The pertinent question to ask is: what kind of legacy do I want to leave for my

generation? and as men and fathers, the greatest legacy is that of SALVATION.

The enormity of wealth created without the fear and knowledge of God, without

Christ as Saviour and eternal life as the ultimate, has no value. In Mark 8:35-36,

Jesus explains it better:

“What shall it profit a man, if he shall gain the whole world, and lose his own soul? Or what shall a man give in exchange for his soul?

We should strive to imbibe the knowledge and fear of God in our children, like

Abraham in Genesis 18:19:

“For I know him, that he will command his children and his household after him, and they shall keep the way of the Lord, to do justice and judgment, that the Lord may bring upon Abraham that which he hath spoken of him.”

 

 

 

CONCLUSION

In light of the above, there is no doubt that one must plan towards the inevitable, which no one except God, knows the date, time and details.

 

 

 

 

 

 

Thank You Jesus!

 

 

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