What is Succession law?
Succession law covers both Testate succession (when a person dies with a valid will) and Intestate succession (when a person dies without a valid will).
Types of succession in Uganda
- Testate succession and
- Intestate succession.
What is the current Law on Succession in Uganda?
The Succession Act (as amended) outlines the rules and procedures for distributing a deceased person's estate.
It also lays down the persons eligible to benefit from the deceased's property, the priority of beneficiaries and the administration of the estate, and in what percentages they benefit, among others.
What is Intestate succession in Uganda?
In such cases, the Succession Act (As amended) provides a framework for how the estate of the deceased person is to be administered.
This hierarchy of benefitting from the estate is based on the deceased person's family relationships, with spouses and children having the highest priority followed by dependent relatives the customary heir.
The distribution of the estate among the beneficiaries is determined by the law, and the court may appoint an administrator/administratrix to manage the estate and distribute the assets to the beneficiaries.
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CAPACITY TO SUCCEED
Section 27 of the Succession
Act provides for the capacity of persons worthy to succeed and inherit from
an intestate’s estate to wit;
- Spouse
- Children/lineal descendants
- Dependent relatives
- Customary heir
Spouse
A spouse is a person married
according to the recognized marriages in Uganda. A spouse can be a husband or
wife, widow or widower.
Surviving spouses are entitled to a share in the inheritance property of their deceased spouses.
The percentage shares vary accordingly and depend on circumstances such as whether the deceased was survived by children or not, the existence of dependent relatives, etc as will be discussed further.
In matters of inheritance,
spouses are also protected by the Constitution of the Republic of Uganda
1995 (as amended) under Article 31(2), which states that Parliament
shall make appropriate laws for the protection of the rights of widows and
widowers to inherit the property of their deceased spouses and to enjoy
parental rights over their children. (Also See Article 21 of the Maputo
Protocol, Section 201 A of the Succession Act (as amended) ).
However, for a spouse to benefit from the estate of the
deceased spouse, they must have been;
Ø Legally married. The spouses must have been lawfully married according to the marriages recognized in Uganda, i.e., Hindu, Customary, Civil, Church and Mohammedan marriages.
In Christine
Male & Anor V Sylvia Mary Namanda & Anor (1982) HCB 140, the
plaintiff, a widow to the deceased, applied for Letters of Administration which
were objected to by the defendants. The first defendant was the mother of four
of the deceased's children. The issue before the court was to determine the
deceased's wife. The court held that the defendant was not a legally married wife
and that having children with the deceased did not automatically entitle her to
become a wife.
Ø Not separated from the deceased as a member of the same household for more than 6 months before the deceased’s death. This kind of separation is different from divorce.
Section 30(1) of the Succession Act (as amended) provides that a
surviving spouse of an intestate shall not take any interest in the estate of
the intestate if, at the death of the intestate, the surviving spouse was
separated from the intestate as a member of the same household.
The exception only comes in
where the separation was due to;
·
Course
of study
·
Where
it was the deceased intestate who caused the separation
·
Where
it was the deceased who separated from the surviving spouse or
·
Where
the separation was a result of a decision of a court
In Elizabeth
Nalumansi Wamala V Jolly Kasande & Ors SC Civil Appeal No. 010 of 2015,
the appellant and the deceased were married in the UK in 1992. The deceased
returned to Uganda in 1999, where he married the 1st respondent
customarily. The appellant only fully returned to Uganda in 2012 after the
deceased's death. The court held that because the appellant was living and working
in the UK, she was separated from the deceased and was not a member of the same
household; hence she was not entitled to a share in the deceased's estate.
NB: Children's interests in an
intestate estate are not affected by the separation of their parents (spouses).
Children/Lineal
descendants
A child is a person under the age of
eighteen years. Section 2 of the Succession Act defines a child
as a child, issue, lineal descendant, or adopted child.
It should be noted that all
children are equal before the law, whether born in or outside wedlock.
The Succession (Amendment) Act
repeals the definition of children in the Principal Act, which defined
and discriminated amongst children along the lines of legitimacy (born in a
marriage) and illegitimacy (born outside a marriage).
In the case of Kajubi v Kabali (1944) EACA 14, the
deceased had seven children with his wife, whom he married under the Marriage
Ordinance, and 43 other children with other mothers. The wife who was married
under the Marriage Ordinance wanted a more significant share of the deceased's
estate for her children because her children were 'legitimate'. The clan leader
distributed the property equally to all the children of the deceased. This was
challenged by the children of the official wife hence giving rise to this case.
The court of appeal upheld the decision of the clan leader. It held that all
children are equal and have rights of succession to a parents’ property.
Also, in Anne Asiimwe V Immaculate Asiimwe Civil Suit No.
104 of 2013, Justice Catherine Bamugemereire remarked that ‘All
children are children of the law, whether born in or out of wedlock’
Adopted Children
Similarly, adopted children are entitled to a share in the
deceased intestates’ estates. Section 51 of the Children Act Cap 59
provides for the effect of adoption whereby all rights, duties, and
responsibilities of natural parents to their children are extinguished and
vested in the adoptive parents. This means that the child is treated as though
an adoptive parent bore it.
Section 52(1) of the Children Act provides that where an adoptive
parent dies intestate, their property devolves in all respects as if the
adopted child were the adopter's natural child.
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Dependent
Relatives
Section 2 of
the Succession Act (as amended) defines a “dependent relative” to
include;
Ø A parent of the deceased
Ø Brother or sister of the deceased
Ø Niece or nephew of the deceased
Ø Grandparent or grandchild of the deceased.
The qualifier for this group of persons is that they MUST
have been, on the date of the deceased's death, wholly or substantially
dependent on the deceased for the provision of the ordinary necessaries of
their lives.
In Piarasingh & Anor V Sukhveer [2016], the court
noted that it was not enough to be in the stated relationship of a relative to
the deceased. The person claiming to be a dependent relative must, in addition,
prove their dependence on the deceased wholly or substantially on the date of
the deceased's death
Customary Heir/Heiress
A customary heir/heiress refers to a person appointed
according to customs and rites to fill the place of the deceased. According to
most customs in Uganda, the eldest son is always selected as a customary heir. A
customary heir does not have the power to administer the deceased's estate.
They can only administer the estate of the estate after obtaining authority to
do so.
In Onesforo Ngaaga & Anor V Matovu & Anor HC
Civil Suit No. 107 of 2003, it was held that being appointed customary heir
does not bestow upon the appointee legal authority to administer the estate of
the deceased. However, it meant for someone to ‘step into the shoes
of the deceased for cultural purposes.
DISTRIBUTION OF PROPERTY OF AN INTESTATE
Mandatory Shares
With the
exclusion of an intestate's residential holding, the Succession Act
provides the framework and percentages of how the estate of an intestate is to
be divided as shown below;
a) Where an intestate is survived by a spouse, lineal descendants, dependent relatives and a customary heir/heiress;
Ø
Spouse—20%
Ø
Dependent Relatives—4%
Ø
Children/Lineal descendants—75%
Ø
Customary Heir/Heiress—1%
b) Where there is no spouse or dependent relative;
Ø
Customary Heir/Heiress—1%
Ø
Lineal descendant—99%
c) Where an intestate is survived by a spouse, dependant relative, customary heir/heiress with no children/lineal descendants;
Ø
Spouse—50%
Ø
Dependent relative—50%
Ø
Customary Heir/Heiress—1%
d) Where an intestate is survived by a customary heir/heiress and a spouse;
Ø
Spouse—99%
Ø Customary Heir/Heiress—1%
e) Where there is no survivor other than the customary heir/heiress;
Ø Property is divided amongst the nearest Kinship of an intestate
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Maintenance
Section 27 (2) of the Succession
Act (as amended) provides that 20% of the
estate is not to be distributed and held in trust for the education,
maintenance, and welfare of the following persons;
Ø A minor child of an intestate
Ø A lineal descendant above 18 years but below 25 years, who at the time of the death, was undertaking studies and was not married
Ø Lineal descendant/s with disabilities who are above 18 years at the time of the death were not married and were wholly dependent on the intestate for their livelihood.
The 20% is deducted from the gross
estate before distribution.
Residential
Holding
A residential holding
can be defined as a place or a portion of the building used wholly for dwelling
purposes by a family.
Section 29 of the Succession
Act (as amended) prohibits the distribution of the residential holding of
an intestate. Where the intestate was married or has children, the residential
holding usually occupied by those persons or that was occupied by the intestate
as a principal residence is not subject to the estate for distribution.
Section 26 of the Succession
Act (as amended) provides that a residential holding of a deceased person
devolves equally to the surviving spouse and lineal descendants who were
ordinarily resident therein. They then hold the residential holding as joint
tenants. Also, any person who evicts or attempts to evict them commits an
offense and is liable to a penalty.
Disposing of residential property
only contends with the consent of lineal descendants and the living spouse.
In Mariya Nanyonga V Administrator
General, the widow sued the AG for selling the residential holding of the
deceased. The court held that the AG had done so in bad faith, considering that he
had not considered the wishes of the beneficiaries, particularly the plaintiff
widow.
PERSONS ELIGIBLE TO APPLY FOR LETTERS OF ADMINISTRATION
Ø Widow or Widower. Surviving spouses are of high priority and persons of the first instance over any other persons while applying for Letters of Administration to administer the estate of a deceased intestate. (Section 201 A of the Succession (Amendment) Act)
In Beatrice Malinga V Jonathan Malinga [2015], the court held that since the plaintiff was a widow to the deceased, she was the most appropriate person to take out probate of her late husband’s estate as opposed to his son, the defendant.
A widow does not need to obtain a Certificate of no Objection from the Administrator General. According to Administrator General V Joyce Okello Atti 1993, the court held that the widow could directly petition the court to obtain Letters of Administration without reference to the Administrator General.
However, the widow/widower must have been legally married to the deceased at the time of their death. In Mastula Nantongo V Enock Kakuru HC Civil Suit No. 161 of 1993, spouses married customarily but did not register their marriage. Court held that the plaintiff could not get LOA since she was not legally married to the deceased.
Also, where a spouse was separated (Not divorced) from the deceased as a member of the same household for 6 months prior to the deceased’s death, they will not be eligible for an interest in the deceased’s estate. [Section 30 (1) of the Succession Act (as amended)]
In Rwabaganda Farasia V Donato Bahemurwusha [1978], the court found that no spouse of an intestate is to share in the estate of the deceased if, at the time of the death of the intestate, the spouse was separated from the intestate as a member of the same household.
Therefore, such a person is not fit to get a grant to administer the deceased’s estate. (See; Elizabeth Nalumansi V Jolly Kasande SC Civil Appeal No. 10 of 2015)
The exception only comes in where the separation was due to;
· Course of study
· Where it is the deceased intestate who caused the separation
· Where it is the deceased who separated from the surviving spouse or
· Where the separation was a result of the decision of the court
Ø Children or Lineal descendants. According to Anne Asiimwe V Immaculate Asiimwe, all children are equal before the law, whether legitimate (born in a marriage) or illegitimate (born outside a marriage).
Ø Creditors. Where no person related to the deceased by marriage or consanguinity is available.
Ø Any other person appointed with leave of court.
PROCEDURE FOR APPLYING FOR LETTERS OF ADMINISTRATION
Where a testator dies intestate
(without leaving a will) or leaves a will but does not name an executor, an
Administrator can be appointed to apply for Letters of Administration to
gain authority to administer the property of the deceased legally.
Ø Any person other than the widow/widower of the deceased petitioning for Letters of Administration should apply for a Certificate of No Objection.
A certificate of no objection is the official legal document that portrays that for purposes of applying for Letters of Administration, the Administrator General does not object to or has no objection towards the grant holder.
Ø A person petitions the court praying for a grant of Letters of Administration.
Ø A summary of the evidence should support the petition, necessary documents like a death certificate, witnesses and authorities the petitioner wishes to rely on. (A fee of 6000/=)
Ø A notice of the petition is then advertised in the news for 14 days.
Ø Anyone objecting to the grant of Letters of Administration may lodge a caveat to prohibit the grant.
Ø Where no caveat is lodged, Letters of Administration are granted.
Once Letters of Administration
are granted, the applicant is then vested with all property of the estate of
the deceased.
Where one chooses to abandon or
withdraw their authority of administering the estate of the deceased, considering
the fact that they have not intermeddled with the estate, they should do so by renouncing
Letters of Administration. Section 195 of the Succession Act
provides that a person renouncing may do so orally in the presence of a
magistrate, commissioner for oaths or justice of the peace or by writing signed
by the person renouncing. A person renouncing cannot after that ever apply for
probate or Letters of Administration.
REVOCATION OF GRANTS (PROBATE & LETTERS OF ADMINISTRATION)
Probate and Letters of
Administration are collectively called grants. Revocation of Grants is
provided for by Section 234 of the Succession Act Cap 162.
The Act provides that grants may
be revoked for just cause.
Section 234(2) of the Succession
Act further defines just cause to mean;
· That the proceedings to obtain grants were defective in substance
· That the grant was obtained fraudulently
· That the grant was obtained based on an untrue allegation that is material to the case
· That the grant has become useless or inoperative
· That the person to whom the grant was made has willfully, without reasonable cause, failed to file inventory to the court concerning the deceased's estate. (See; Isumba V Bulya)
In Mukisa V Nabukalu [2019],
the plaintiffs as beneficiaries sued the defendant as administratrix of the
estate of their deceased grandfather for revocation of Letters of
Administration on allegations of fraud and failure to file inventory in respect
to the estate of the deceased. Court did not find the defendant liable for
fraud. However, it found that the defendant had not filed inventory for the
estate and hence found this as just cause for revocation of the Letters of
Administration that the defendants had acquired.
Conclusion
Intestacy concerns succession, where one dies without a will. This publication lays down the framework of succession laws while capturing the latest regulations of the Succession (Amendment) Act 2022 that apply to how the property of persons who die without a will is to be dealt with.
This discussion entails the category of persons who are eligible to
benefit from the estate of the intestate, how to obtain authority to administer
the estate of intestates (Letters of Administration), the persons eligible to
apply for grants to administer the estate of the intestate and situations where
legal authority to administer the estate of the intestate can be revoked and
renounced.
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