1.0 INTRODUCTION
This brief by Kleeva Associated Advocates highlights the key messages in the Uganda Succession (Amendment) Bill 2018 and is part of our work to keep versed with new developments in our area of practice and to further provide information to our stakeholders for them to keep abreast with legal developments that may have an impact on them. It is divided into four sections; section one is the introduction; section two presents a brief background to succession law in Uganda; section three highlights the key messages in the Bill covering the new insertions, key amendments substituting the old Act and the Repeals and section four is the conclusion.
The dynamics of inheritance and Succession have advanced in the contemporary world to become inclusive of wealth as owned by both female and male. Thus, the interests of both parties ought to be protected and access to information is one the pillars of critical importance to ensure that this objective is attained.
2.0 BACKGROUND OF SUCCESSION LAW IN UGANDA
Succession law in Uganda is traced back to the Succession Ordinance of 1906 which introduced British models of succession and inheritance. This ordinance however, exempted the estates of all natives from its operation and fell short on intestate succession. It presupposed that it was only the husband who would make a will. It was amended by the Succession Amendment Decree of 1972 to address its shortcomings to provide for intestate succession in Uganda as well[1]. The Amendment provided for illegitimate and adopted children[2]. However, its noted that it had some discriminatory provisions based on sex. For instance, under the Second Schedule, remarriage by a widow terminated her occupancy of the matrimonial home while the widower retained the house upon re-marriage[3].
The current Succession Act Cap 162 replicates most provisions of the Succession Amendment Decree. With time, recommendations, studies, and case law sought to address the anomalies in the law for instance, the Kalema Commission,[4] Ministry of Women in Development, Culture and Youth,[5] and the Uganda Law Reform Commission study on the law of Succession in Uganda[6] reported challenges and made recommendations within the law and took cognizance of the provisions that were predominantly discriminatory.
Some provisions of the Succession Act Cap. 162 were nullified by Court as being inconsistent with the Constitution in the Law and Advocacy for women in Uganda vs Attorney General (Constitutional Petition No. 13/ 2005) where the provisions of the Succession Act were challenged to wit Sections 2 (n)(i) and (ii), 14, 15, 23, 26,27, 29, 43 44 and Rules 1, 7, 8, and 9 of the Second Schedule and Court declared these provisions null and void. It is thus prudent to state that the current Succession Act does not reflect the contemporary changes in economic and social lives of Ugandans and its provisions conflict with the Provisions of the Constitution of the Republic of Uganda, 1995, as amended. The proposed amendment on the other hand incorporates these positions.
3.0 THE SUCCESSION (AMENDMENT) BILL, 2018
The Succession (Amendment) Bill, (herein referred to as the Bill) proposes a number of changes that reconcile it with the provisions of the Constitution of the Republic of Uganda, 1995 and brings it at par with the current social-economic environment.
One of the key aspects in the Bill is gender sensitivity; to bring the inclusion of both women and men into the Act by replacing the words like husband/wife with “spouse” and man with “person”, making it possible for women to dispose of properties, and the protection of children rights and the rights of surviving spouses, ensuring the rights of spouses in the distribution of property. The Bill reconciles the age of a minor from 21 years stipulated in the Principal Act with Article 257(1)9(c) which provides for 18 years.
The Bill has repealed some sections of the Succession Act, it has amended some provisions, substituted some, and inserted new provisions into the Act. We shall therefore look at the key areas of interest in the Bill as hereunder.
3.1 INSERTIONS OF NEW SECTIONS INTO THE PRINCIPAL ACT.
The insertion of new sections is bringing into the already existing law new provisions. The Bill has 6 new insertions to wit Clause 44A, 201A, 204A, 267A, 311A and 333A.
- Clause 44A; introduces the relationship between the surviving parent and an appointed guardian of a minor. It provides for the retention of parental rights by the surviving parent and the guardian working jointly with the parent. It further provides for the objection to joint guardianship by either parent or guardian considering one of them is unfit by applying to Court. It is thus prudent to note that this Bill considers the welfare of the child as being paramount.
- Clause 201A; introduces the priority of surviving spouses in administering the estate of the deceased unless he or she is mentally impaired or unable to manage the estate or mismanages the estate. The Bill provides for the rights of spouses in administering the estate. In the case of Cissy Nabakara v Alexandria Kalembe[7], Court noted that the widow is the most appropriate person to administer the estate of her late husband. This therefore allows for the surviving partner to administer the estate of the deceased person other than giving the administration to a person chosen by the family as is the case with the Succession Act.
- Clause 204A; incorporates Section 6(3) of the Administrator General’s Act into the Act providing for a person applying for letters of administration to give definite notice in writing in presence of witness or through publication likely to be seen by the spouse, lineal descendants, and dependent relatives of deceased prior to applying. This will ensure transparency to the family of the deceased on who is obtaining the letters of administration other than verbal consent which can easily be done with.
- Clause 267A; gives the Registrar of High Court powers, upon reference by a judge, to revoke or grant letters of administration/probate.
- Clause 333A; stipulates that a person who acts on behalf of the beneficiaries of an estate shall not acquire any part of the beneficiary’s interest in the estate as payment for the services rendered and makes it an offence where this provision is contravened.
3.2 KEY AMENDMENTS AND SUBSTITUTIONS OF PROVISIONS OF THE SUCCESSION ACT
- The Bill moves from use of ableist language to using more neutral/unprejudiced terms like mentally impaired in place of “lunatic” or “insane”.
- The Bill creates offences, penalties and liabilities to administrators and executors in handling the estate of the deceased for instance, Clause 28 which substitutes Section 249 provides for an offence of false averment in petition or declaration whose liability on conviction is a fine not exceeding 1000 currency points or imprisonment not exceeding one year or both.
- The Bill has provided an avenue through which property and estate of the deceased can be handled jointly by executors and administrators of the estate of the deceased.
- The Bill creates an equal distribution of a deceased’s estate amongst the persons of the same class regardless of their age, level of dependency on the deceased at the time of death. For instance, where they are children of the deceased, they are all entitled to an equal portion and they are equally entitled to administration.
- The Bill provides for probate and letters of administration to be valid for three years from the date of issue as opposed to two years in the Principal Act and the renewal of the same by Court upon such terms and conditions.
- Writing of a will. The Bill provides for the interest of a witness who is an executor or executrix not being disqualified to prove the execution of or the validity of a will.
- The Bill provides for the residential property of an intestate, as long as the living spouse or child of an intestate is in occupancy, not to affect the percentage of their share on the property of the intestate and makes it an offence to evict the occupant of such property.
- The Bill has created a new class of distribution of property. A surviving spouse is entitled to 50 percent as opposed to 15 percent, the dependent relatives are entitled to 9 percent and the lineal descendants, 41 percent as opposed to 75 percent. In the case of Edith Nakiyingi V. Merekizedeki (1978), court held that the house and the kibanja (land) were beneficially owned by the husband and wife under a trust for sale. The trust having arisen out of the substantial contribution by the wife to the development of the land and the building of the house. The respondent who was the husband could not therefore exclude the appellant wife from the enjoyment of their joint endeavors. It is thus prudent to note that the Bill has taken cognizance of the contributions made by the spouse to the estate of the deceased by entitling them to 50 percent of the estate.
3.3 REPEALS
- The Bill repeals the definition of legitimate and illegitimate children and senior wife in Section 2 of the Principal Act.
- The Bill repeals Section 7 of the Principal Act which provides for the domicile of an illegitimate child being the domicile of the mother. This is because it is considered discriminatory towards both the child and women. In the case Kabali vs. Kajubi[8], it was held that all illegitimate children in Buganda are regarded as children of the deceased unless somebody claims otherwise. This reconciled the difference between legitimate and illegitimate children as being children and thus the matter of domicile of an illegitimate child being that of the mother not sufficing. This case also elaborates on the repeal of the definition of legitimate and illegitimate children herein above.
- The Bill also repeals Section 15 of the Principal Act that provides for the domicile of the wife during marriage.
- The Bill repeals Part III of the Principal Act which provides for consanguinity. This is basically the relationship or form of connection between persons and the succession Act provided for succession to apply where one was either related by blood or half blood and the mode of kindred measured according to the first schedule of the principal Act.
- The Bill repeals Section 31 of the principal Act that provides for Notice given by customary heir upon appointment and the form provided for in the third schedule. The Bill is however silent on the repeal of the Third schedule. It is prudent to note that without an enacting schedule, the schedule becomes dormant.
- The Bill repeals Section 34 that provides for the effect of marriage between persons only one of whom is domiciled in Uganda.
- The Bill further repeals Section 216 of the Principal Act that provides for administration of an estate during minority.
- The Bill further repeals Section 276 which provides for the powers of a married executrix or administratrix.
- The Bill repeals the second schedule to the Principal Act.
- The Bill also repealed the first schedule which provided for the order of consanguinity by substituting it with the Schedule providing for the currency point.
4.0 CONCLUSION
The proposed Amendment Bill to the Succession Act is timely because there have been a number of cases pronouncing some of the provisions of the Succession Act as void, however, these had not been reflected in the Act. This Bill has thus reconciled case law and has taken into account the prevailing social, economic, and international trends making it consistent with the Constitution of the Republic of Uganda.
For Further Information on this brief, contact us at;
Kleeva Associated Advocates, Plot 5-7A Coral Crescent, Lower Kololo,
P.O. Box 33826, Kampala-Uganda, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.
Tel : +256-759911372
[1] The Long title of the Succession Amendment Decree, 1972 stated therein ‘to amend the succession act to provide for succession to the estates of persons dying intestate, restriction on disposal of property by will and for certain other matters connected therewith.
[2] Section 2 of the Succession Amendment Decree, 1972, provided the definitions for child and illegitimate child.
[3] Second Schedule of the Succession Amendment Decree, 1972, paragraph 8(a)
[4] Report of the Commission on marriage, divorce, and Status of Women, 1965 (the Kalema Commission Report)
[5] study on the Administrator General’s Office, Research Project on Women and Inheritance, November 1993.
[6] Study Report on the Review of Laws on Succession in Uganda, July 2013
[7] Cissy Nabakara v Alexandria Kalembe CS 691/1991
[8] Kabali vs. Kajubi 9 [1944] 11 EACA