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 Testate succession in Uganda?
The Succession Act (as amended) provides rules and procedures for the validity of a will, the appointment of an executor, and the distribution of the estate according to the terms of the will.
The new Succession Amendment Act 2022 has been a fundamental turnaround in the field of succession law which has been captured herein.
Recommended reading; Intestate Succession In Uganda (Family Law Notes)
NOTABLE TERMS IN TESTAMENTARY SUCCESSION.
Testator
A testator is a person who makes a will.
Executor/Executrix
An executor/executrix is the person appointed by a testator
in a will to carry out the administration of the testator's estate upon
their death.
Where no executor is appointed or the deceased leaves
no will (intestacy), the person who takes legal responsibility for
administering the estate is called an administrator/administratrix.
An executor acts as the legal representative of the
deceased. They can sue and be sued on behalf of the deceased’s estate.
Estate
This is the aggregate of all property and interests the
testator leaves behind.
Administrator
An administrator is a person who applies to the
Administrator General for Letters of Administration (authority to administer
the estate of the deceased) where there is either no will or there is an
invalid will, i.e., a will that has named no executor.
WILLS
What is a Will?
A will is a formal written declaration of the testator’s
wishes on how they wish their property to be distributed upon their death.
The Black’s Law Dictionary 9th Edition
defines a will as the legal expression of an individual's wishes about the
disposition of their property after death.
A will is ambulatory, i.e., effective upon death, and a will
is also revocable until death.
A will can also be modified at any time during the testator's lifetime.
What is a Codicil?
A codicil is an instrument explaining, altering, or adding to
a Will and is considered part of the will.
TYPES OF WILLS
Privileged Wills
These are informal wills made by army men and women in
actual warfare or mariners at sea in actual service.
Privileged wills are provided for by Section 52-53 of
the Succession Act.
Privileged can be written or oral or take on any other form.
They need not be written nor signed but will be valid.
NB: Persons making privileged wills
must be 18 years and above.
Privileged wills are valid despite noncompliance with usual
statutory formalities as long as the testator was in actual service at the time
of making the will.
Unprivileged Wills
An
unprivileged will is a formal written document by an adult of sound mind,
attested to by more than two witnesses showing the testator’s estate and how it
is to be administered after death.
OTHER TYPES OF WILLS
Joint Wills
A joint will is a single will executed by two or more
testators disposing of their common property by transferring their separate
titles to one devisee.
Conditional/Contingent Wills
A conditional will is a will made, providing that it will
only take effect upon the occurrence of an uncertain event.
Mutual Wills
A mutual will is a will made by one person establishing similar
testamentary provisions disposing of their estates in favor of each other.
Religious Wills
Religious wills are wills made by a testator specifying how
they want to be treated upon their death per religious rites.
CAPACITY TO MAKE A WILL
In Uganda, for one to make a legally valid will, they must
be;
· An adult, i.e., a person above eighteen years of age.
· Persons of sound mind. Persons who occasionally have mental illness may make wills during intervals in which they do not have a mental illness. Persons with hearing, physical or visual impairments can make wills if they can.
Section 36 of the Succession Act provides for
the capacity of persons to make a will.
Although the law advocates for testamentary freedom, there
are mandatory conditions to be fulfilled by a testator while making a will.
Where such conditions are not fulfilled, the court has the power to order the
fulfilment of such provisions off the deceased's estate.
SALIENT FEATURES / CONTENTS OF A VALID WILL
There is no particular format for making a will, and a
testator has testamentary freedom to write a will in any desired form.
For purposes of reference, a will may take the format of the
form provided in the Fourth Schedule of the Succession Act.
Below are the salient features a valid will should possess;
· Name and address of the testator
· Marriage status
· Name(s) of spouses
· Names of the executor(s)
· Appointment of an heir
· Names of the children / Beneficiaries
· Names of the guardians of the children
· Property owned by the testator
· Distribution of the testator’s property
· Burial wishes
· Signature of the testator
· Names, addresses and signatures of the witnesses
Residential Property
A residential holding is a place or a portion of the
building used wholly for dwelling purposes by a family.
Section 36(6) of the Succession Act (as amended)
prohibits the disposal of a testator's place of principal residence in a will
to protect the welfare of the surviving spouse and children. A testator's place
of principal residence or if the testator was married, the place where the
spouse and the children ordinarily reside is not subject to disposal.
The exception only comes in where the testator, in their
will, clearly provides alternative accommodation for the spouse and the
children entitled to occupy the principal residence.
Maintenance
It is mandatory for a testator in their will to reasonably
cater for the maintenance of their children, spouse, or dependent relatives.
Section 37 of the Succession Act (as amended)
provides that a testator (one who makes a will) must provide adequately for the
maintenance of;
Ø Spouse
Ø Child or a child who suffers from a mental or physical disability
Ø A dependent relative who was substantially dependent on the testator for their sustenance prior to the testator’s death.
Section 38 of the Succession Act (as amended)
provides that where the above-listed beneficiaries are not catered for in the
will, they can apply to the court, which may so order for maintenance to be
deducted from the testator’s estate to cater for them.
FACTORS THAT MAY LEAD TO THE VOIDABILITY OF A WILL
· A will made by a minor
· A will made by a person of unsound mind who, at the time of making the will, was incapable of making the will due to mental illness.
· A will made by a person with physical, visual or hearing impairment who was incapable of making the will at the time of making the will.
· A will made under duress, coercion, undue influence or mistake of fact.
· A will induced by abuse of a position of trust or abuse of vulnerability of the testator.
· Non-Attestation. Attestation is the evidence or proof of something. Where a will is not attested to, i.e., a will not witnessed by two or more witnesses; it will be invalid. Section 50 of the Succession Act Cap 162 (as amended) makes it a requirement for each of the witnesses attesting to a will to write their names and addresses on every page of the will in the presence of the testator.
· Form. A will must be written. The exception only comes for privileged wills, which only apply to mariners at sea and army men in actual warfare.
REVOCATION OF WILLS
Section 57 of the Succession Act provides revocation of
unprivileged wills.
To revoke a Will, one must;
· Have the capacity to revoke a will
· Have the intention to revoke a will
· Commit a satisfactory physical act to that effect, i.e., obliteration or destruction.
· Have all the above conditions present.
A Will can be revoked by;
Physical destruction
For this condition to be fulfilled, two elements must be present;
· The intention to destroy. The act of destruction must be accompanied by animus mocandi.
· The act of destruction
In Hobbs v Knights, the testator completely cut out
the signature. Since a signature is vital to the validity of a will, the will
was considered revoked.
Destruction of a will should be complete. Where it is
partial destruction, the will is not automatically revoked. The parts that are
not destroyed will be valid.
However, where the will makes no sense because of the
partial destruction, it cannot be effective.
Codicil
A codicil is a supplement or addition to a will modifying,
explaining, or qualifying the will in some way considered part of a will.
Another will
Where a
testator makes two or more wills, the court considers the latest will as the
deceased's last will.
This
was illustrated in Beatrice Malinga V Jonathan Malinga [2017] UGHCFD 6, where the
deceased left two wills. The first will named the defendant (son of the
deceased) as the executor, while the latter will named the plaintiff (widow of
the deceased) as the executor. The defendant claimed that the latter will that
named the plaintiff as executor was invalid due to inconsistencies, like errors
in the names of beneficiaries. The issue before the court was to determine
which of the two wills was valid.
The
court held that the latter, being the last version of the will despite having spelling
errors in the names of beneficiaries, was the valid one. That the testator had
a right to make any changes to the will before his death.
Marriage
Vide Section 56 (1) of the Succession Act.
Writing declaring an intention to revoke executed in the same manner as a
will.
RENOUNCING PROBATE
Where the named executor/executrix does not wish to
take on the role of administering the estate or wishes to withdraw from the
role, they apply for renunciation.
Section 195 of the Succession Act provides for
the procedure of renouncing probate wherein it states that a person renouncing
probate 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.
Such a person must not have intermeddled with the estate. Renouncing precludes a renouncer from ever after applying for probate in respect of the estate whose probate they have renounced.
REVOCATION OF PROBATE
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 which 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)
Also read: Full simplified Family Law Notes LLB