THE IMPLICATION OF LEGAL ADOPTION OF A CHILD IN RELATION TO TESTAMENTARY POWERS UNDER NIGERIAN LAWS: A DISCOURSE

Abstract

The concept of testamentary freedom implies that a testator is free to dispose his estate as he wills. This freedom is however curtailed by Customary/Islamic law and other statutory stipulations, to wit, reasonable provisions to dependants, among others. Adoption of a child is permissible under the laws in Nigeria. Upon the handing down of the adoption order by the court, the adopted child is entitled to the rights and privileges as would have a biological child, including the right of succession. This position is further enforced by the Nigerian Constitution which provides that no citizen shall be subjected to any disability or deprivation merely by reason of the circumstances of his/her birth. Therefore, for a will to be valid, it must make provision(s) for such an adopted child or children, and even, by reason of Customary/Islamic law, the child is entitled to certain devises and bequests which must not be withheld from him/her on grounds that he/she is adopted. Thus, adoption confers on a child, all the rights vis-à-vis his adoptive parent(s) as if the child had been born in lawful wedlock, as well as, imposing on the adoptive parent(s) responsibilities equivalent to that of the natural parents of the child. This paper uses doctrinal methodology, by providing background information on adoption, the various forms of adoption and the historical information on the evolution of adoption laws in Nigeria. The authors also discuss the testamentary freedom of a testator, the curtailments of the freedom and the position of an adopted child within the socio-cultural context of Nigeria.