Friday, March 11th, 2022
Succession law in Uganda deals with the management, administration, distribution and acquisition of property and rights of a deceased person. This is either in accordance with the deceased person’s wishes which are usually expressed in a will or in accordance with statutory laws enacted by Parliament. They are various laws dealing with succession in Uganda including the Succession Act Cap 162.
The Succession Act Cap 162 was commenced in 1906 to provide for matters dealing with testamentary (where one dies and leaves a will behind) and intestate succession (where one dies and leaves no will behind) and it has been revised and consolidated by the Uganda Law Reform Commission since 2000 to date. However, Court in the case of Law and Advocacy for Women in Uganda v Attorney General, Constitutional Petitions No. 13/2005 and 05/2006 declared provisions of this Act relating to the distribution of estates of intestate persons as well as other succession rights unconstitutional and discriminatory against the female gender which left a gap in succession law.
Recently, the Parliament of Uganda has passed the Succession (Amendment) Bill of 2021 putting to rest months of lobbying by civil society and women rights activists for the same. The Bill seeks to align the Act with the Constitution of the Republic of Uganda as well as promote gender equality in succession matters in Uganda.
The following provisions of Cap 162 were declared unconstitutional; Section 2(n) that provided for a legal heir preferring a male heir to a female one, section 2(1) that particularized children as legitimate and illegitimate, section 14 and 15 on a spouse acquiring a domicile and a wife following her husband’s domicile during marriage, section 26 on residential holding, section 27 on the distribution of a deceased’s estate which focused on a male intestate, section 29 and rules 1, 7, 8, and 9 of Schedule 2 to the Act that provided for occupancy of the matrimonial home in which a woman ceased to occupy the principal residential property if she married but was silent on the same for men and sections 43 and 44 of the Act, which provided for the appointment of the testamentary guardian as it was only a father who, by will, could appoint a guardian or guardians for his child during minority.
One of the things we miss in succession planning is that it should be gradual and thoughtful, with lots of sharing of information and knowledge and perspective, so that it is almost a non-event when it happens.Anne M. Mulcahy
The new clauses in the Bill provide for gender-neutral language and inclusivity in various aspects of succession, disposal of property and administration of the estate of the deceased; have introduced various changes and guidelines relating to wills, guardianship, domicile(permanent dwelling or residence), the administration and management of the estate of the deceased as well as offences related to the administration and management of the deceased.
1. Gender-neutral language. Previously, Uganda being a predominantly patriarchal state, the language of the Act was mostly biased towards the male gender. The Bill is now more gender-inclusive and friendly as it substitutes words for example: “a married woman or man” for spouse; “man” to “person”—and inserts immediately after the word “his” the word “or her”, “father” the word “or mother”, “son” the words “or daughter” “heir” “or heiress” etc.
2. The legal heir. The legal heir has been redefined to include a female heir as previously, a male heir was preferred to a female heir, to inherit the estate and step into the shoes of the deceased as Uganda was mainly dominated by a patrilineal society.
3. Distribution of the estate. The Bill now provides for the distribution of both the female and male intestate( a person who dies without a will). It goes ahead to promote the welfare and best interests of children by excluding 20% of the estate of the deceased to cater for the upbringing of children, their education including; maintenance and welfare of the minor children, children above eighteen years but below twenty-five years of age, if at the time of the death of the intestate these children were undertaking studies and were not married, children with disabilities who are above eighteen years of age, if at the time of the death of the intestate, these children were not married and were wholly dependent on the intestate for their livelihood.
It also offers a form of financial security and protection to widows/widowers and lineal descendants. It gives 20% of the estate of intestate to a spouse and requires the consent of a spouse and lineal descendants prior to the disposal of estate property by administrators or executors and executrix. This will aid in securing the interests of spouses and beneficiaries.
4. Revision of percentages. Where an intestate is survived by a spouse, a lineal descendant, a dependent relative and customary heir, the Bill has revised the distribution of the estate of the deceased by increasing the percentage of the spouse from 15% to 20% and reducing that of dependant relatives from 9% to 4%. It has however maintained the percentages of the lineal descendants at 75% and the customary heir at 1%.
5. Discretion of Court in the grant of probate of letters of administration: The Bill has given the Court power and the choice to determine and approve an executor or executrix (a person appointed to carry out the terms in a will) before grant of probate( a grant given by Court that confirms the legal authority given to an executor of the deceased’s will in the administration of his or her estate).
This is important as it shall aid in the elimination of fraudulent dealings in estates as well as safeguard the interests of spouses and beneficiaries.
6. Administration of an estate: The Bill gives preference to surviving spouses whether male or female over any other person in the administration of the estate of the deceased.
7. Wills: The Bill has made the following changes;
8. The Estate of the deceased. The Bill has provided for joint administration of the estate and offences relating to administration and mismanagement of the estate.
A person who, before grant of letters of administration or probate, misapplies the estate of a deceased and subjects it to loss or damage commits an offence and is subject to a penalty under the Bill. In addition, misapplication of the estate of the deceased by any person before grant of letters of administration or probate is subject to a penalty under the Bill.
Regarding joint administration of the estate, the Bill provides that where there are several executors, executrices or administrators, their powers shall be exercised jointly and that all parties shall sign all the documents necessary for the administration of the estate. Doing so shall aid in the elimination of uncoordinated and fraudulent administration of estates.
9. Maintenance: Spouses, children, lineal descendants and dependants who are left out in a will can now apply to court for maintenance (financial support).
10. Guardianship: Either parent of a minor may, by will, appoint a guardian for the minor.
The Bill also introduces various types of guardianship which include, testamentary, customary and statutory guardianship whose provisions align the Succession Act with the Children’s Act, Cap 59 and give priority to the latter Act in cases of conflict regarding issues of guardianship. A customary guardian who shall be appointed by family members of a minor in given circumstances must be confirmed or rejected by court through an application to Court.
Qualification of guardianship. Persons who qualify as guardians have been listed and statutory guardianship has been restricted to citizens of Uganda.
Custody by a guardian. This is not automatic as a guardian shall apply to court to exercise powers of custody and disposing property of minors.
Removal of a guardian. The Bill has given these powers to only the High Court and not any court of jurisdiction in Uganda.
11. Domicile: The Bill introduces domicile of choice where a person may upon marriage, acquire the domicile of his or her wife and upon dissolution of marriage, a spouse may acquire any other domicile. In addition, the Bill repeals the provision that provides a woman’s domicile follows her husband.
12. Residential Holdings: The Bill provides that the residential holding of a deceased person shall devolve (pass on) equally to the surviving spouse and lineal descendants who were normally resident and any person who evicts or attempts to evict them commits an offence and is liable to a penalty.
It also provides that the descendants of the deceased shall be deemed to hold the property as joint tenants.
13. Disposal of property. Married women are allowed to dispose of any property which they would be entitled to dispose of during their life or which they are entitled to under a will.
The Bill is timely as it finally addresses the uncertainties in the law on the distribution and management of estates of persons who do not leave wills, following the gap caused by the ruling in LAWU V Attorney General. The Bill also clarifies various issues dealing with gender equality, affirmative action, promotion of succession and maintenance rights of members of the family hence aligning the Succession Act with the Constitution.
The Author is Kikome Sarah Nandaula. A student of Law Development Center who is pursuing her clerkship from ABM advocates. She is passionate about various areas of law which include international, employment, criminal and human rights law.
She is also into criminal psychology. You never know we may be seeing the next Mr Bull but here we will have Ms Kikome.
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