The amendments in the Succession Act, transform the law of succession in Uganda, by addressing the lacunas in the Act, to provide for gender equality and repealing provisions that were declared unconstitutional, in addition, they solidify principles for the distribution of the estate of deceased persons in Uganda.
Background
The recent amendments to the law relating to succession were necessitated by the need to amongst other things,
- Accord equal rights to men and women;
- Protect the rights of those occupying the principal and other residential holdings;
- Increase the share of the surviving spouse in the estate;
- Provide for the welfare of minor and dependent adult children;
Improve the law and make it more modern by removing offensive terms (such as “land unatic”, and “illegitimate” children);
- Take into consideration and comply with recent decisions of the Courts including the Constitutional Court
- Bring the law in line with the Constitution and other laws.
DEFINITION OF KEY TERMS
What is intestate succession?
This refers to a situation when a person dies without leaving a valid will and as such their property (the estate) must be shared out according to the Succession Act.
Who is an intestate?
An intestate is a person who dies without a will.
What is testate succession?
This refers to a situation when a person dies leaving a valid will and therefore their estate is distributed according to the will.
Who is a spouse?
A husband or wife married in accordance with the laws of Uganda or laws of another country but recognised in Uganda as a valid marriage.
After the death of one’s spouse, the survivor becomes a widow or widower.
Who is a son and or daughter of a deceased person?
This refers to both biological children and children adopted in a manner recognized under the laws of Uganda. It includes children adopted under the laws of other countries but recognised in Uganda as valid adoptions.
Who is a customary heir or heiress?
This is a person recognised under the rites and customs of a particular tribe or community of a deceased person as being the customary successor of that person. A customary heir should not be confused with an administrator or executor of the estate.
Who is a lineal descendant?
A person who is descended in a direct line from the deceased and includes a child, a grandchild of the deceased and any person related to the deceased in a direct descending line up to six degrees downwards.
Who is a dependent relative?
This is a relative who on the date of the deceased’s death was wholly dependent on the deceased for the provision of the ordinary necessities of life suitable to a person of his or her station. It includes a parent, a brother or sister, a niece or nephew, a grandparent or a grandchild.
Who is a guardian?
This refers to a person having legal and parental responsibility for a child. Examples of guardians are legal guardians (appointed by Court), testamentary guardians (appointed under a Will) and customary guardians (appointed according to the customs, cultures or traditions to which the child or his or her parents subscribes to).
Who is a testator?
This is a person who has made a will.
Who is an executor?
This is a person or institution appointed under a Will and empowered to implement it. The appointment of this person must be confirmed by Court.
What is a will?
It is an expression of what a living person wishes to happen to his or her estate upon his or her death.
What is a codicil?
This is a document that supplements, modify, explains or alters a will or any part of a will. It is considered as being part of the will.
What is probate?
This is a document of authority issued by a Court to a person(s) indicated in a will as the one(s) who should implement the wishes of the deceased in accordance with the Will.
Who is an administrator?
A person granted Letters of Administration by Court to manage an estate where a deceased person did not leave a Will; or where the deceased left a Will but did not appoint an executor; or where the executor appointed under the deceased’s Will has died, refused to act or has been removed by Court.
What are Letters of Administration?
A document of authority issued by a Court to a person, empowering that person to manage an estate where a deceased person did not leave a Will; where the deceased left a Will but did not appoint an executor; or where the executor appointed under the deceased’s Will has died, refused to act or has been removed by Court.
Who has a preference in the administration of an estate of an intestate?
The surviving spouse(s) has priority over any other person in the administration of the estate of a deceased intestate person.
However, the preference given to the surviving spouse may be disregarded by the court and or the Administrator General where the surviving spouse is not a fit and proper person to administer the estate or for other justification.
Generally, the law requires all applicants for Letters of Administration to obtain a Certificate of No Objection from the Administrator General where the estate is valued above UShs. 50,000,000/-.
The only exception is a surviving spouse applying alone.
Who are the beneficiaries under intestate succession?
- Surviving spouse(s)
- Dependent relatives
- Lineal descendants/adopted children
- Customary heir/heiress
- Closest relatives may share only in the absence of a spouse, dependent relatives, and lineal descendants
How do you distribute the property of a person who has died without a will?
In case there are dependent children or children who are below 25 but still going to school, a maximum of 20% of the estate shall not be distributed but shall be kept aside to meet the needs of these dependent/minor children. The rest of the estate is then distributed in the following manner depending on different circumstances
Where a deceased person leaves no Will, and there is a surviving spouse, children, dependent relatives, and a customary heir/heiress
- The surviving spouse gets 20%
- Dependent relatives get 4%
- lineal descendants get 75%
- Customary heir gets 1%.
Where there is no surviving spouse or dependent relative, but there are surviving lineal descendants and an heir
- Lineal descendants shall receive 99%,
- Customary heir/heiress shall get 1%
Where the deceased is survived only by a spouse, dependent relative, and customary heir/heiress; and no lineal descendant
- Spouse will get 50%
- Dependent relative 49%
- Customary heir/heiress will get 1%
Where the deceased is survived only by a customary heir/heiress and spouse
- Spouse gets 99%
- Customary heir/heiress gets 1%
Where the deceased is survived only by a customary heir/heiress and dependent relative
- Dependent relative gets 99%
- Customary heir/heiress gets 1%
Where the deceased is survived by only a customary heir/heiress and there is no surviving spouse, lineal descendants or dependent relatives the property is divided equally amongst the person’s nearest relatives.
NOTE: 20% of the estate shall not be distributed but shall be held in trust for education, maintenance and welfare of the following:
- A child until they attain 18 years;
- A child above 18 years but below 25 years who at the time of the death, was undertaking studies and was not married;
- A child with disabilities who is above 18 years at the time of the death, is not married and was wholly dependent on the intestate for their livelihood.
What is the effect of the Separation of the spouses under the law of succession?
If the spouses were separated (not living together as members of the same household), the surviving spouse does not benefit from the estate of the deceased spouse except where the surviving spouse is on an approved study in an educational institution; where the deceased is the one who separated from the surviving spouse; or where the deceased is the one who caused the separation.
It is also possible for the surviving spouse to go to Court and obtain an order stating that this provision on separation should not apply to him or her. This application must be made within six months of the death of the other (deceased) spouse.
Is a widower or widow who remarried after the death of the deceased entitled to a share when the estate is being distributed?
The spouse who remarries before the distribution of the estate shall be entitled to the share he or she would be entitled to.
Do children who die before the deceased also get a share?
Children of the deceased who died before him or her but left children of their own are also entitled to a share when the estate is being distributed. That share is dealt with under the estate of the predeceased child.
Can the residential houses that the deceased occupied, with his or her children and or spouses at the time of death, be distributed?
The residential properties occupied by the deceased before his or her death are not distributed but remain the property of the spouses and or children who ordinarily occupied them with the deceased at the time of his or her death.
What are the Duties/Powers of an administrator/executor?
- Collect the estate/property of the deceased
- Pay all debts
- Provide for immediate necessities for the beneficiaries
- Preserve the estate property
- Collect all money and income due to the estate
- Keep proper records and accounts of all dealings concerning the estate
- File an inventory and account to Court for all his or her dealings in the estate
- Transfer property to the beneficiaries in accordance with the law or in accordance with any agreement amongst the beneficiaries.
- In the case of an executor, he or she must distribute the estate according to the will of the deceased.
- Represent the deceased in courts of law.
Can an administrator sell estate property without the consent of the beneficiaries?
As a general rule, an administrator of an estate has no power to sell the property of the deceased without the consent of the beneficiaries.
If the administrator considers it in the best interest of the beneficiaries or the estate to sell or deal in the property, he or she should seek the consent of the beneficiaries, including the guardian of any minor beneficiary.
If the beneficiaries or their guardians (in the case of minors) are unwilling or withhold consent, or in the case where the beneficiaries have mental incapacity, then that consent must be obtained from the Court.
Do Letters of Administration/Probate expire?
Letters of Administration/Probate expire after two years with the Court retaining the power to extend the operation of the Letters of Administration/Probate for a further period of two years or such other period as the Court may determine.
The Court, before extending the grant must be satisfied that it is in the best interest of the beneficiaries and that the beneficiaries have consented; and that the administrator/executor has complied with any conditions upon which the grant was issued by the Court.
However;
- Where 20% of the estate is preserved for minors, dependent relatives and beneficiaries with disabilities, the grant shall remain valid only in respect of that part of the estate (trust created).
- Grants made in respect of estates receiving pension shall only expire after the pension has been fully paid.
What is intermeddling?
A person is taken to intermeddle in an estate where that person, while not being an administrator, executor, agent of the Administrator General or agent of an administrator or executor of the estate —
- Takes possession or disposes of the property of a deceased person; or
- Do any other activities which belong to the office of executor or administrator?
Is it possible to take possession of a deceased person’s estate and not be guilty of intermeddling?
A person may, before granting letters of administration or probate, take possession of the property of the deceased for the purpose of—
- preserving the estate of a deceased person;
- providing for the funeral of the deceased person;
- providing immediate necessities to the family of the deceased person;
- preserving and prudent management of the business of the deceased person, including preserving the goods of trade of the deceased person; or
- receiving money or other funds belonging to the deceased person.
One is not allowed to take possession of the property of a deceased beyond three months without the authority of Letters of Administration or the Administrator General. Before the three months expire, one should either report the death to the Administrator General or have applied for Probate or Letters of Administration; depending on the facts of each case.
The Administrator General is empowered to take possession of an estate and preserve it for up to six months after the death of the deceased. The Administrator General or its agent may at any time before grant of Letters of Administration or Probate take any action that is necessary for the preservation of the estate of the deceased person.
Can the Administrator General distribute property without Letters of Administration?
The Administrator General can distribute movable property including cash, cash in the bank, death gratuity, household assets, vehicles or any other movable property as long as it does not exceed UShs. 15,000,000/-
What happens when there is a dispute between several administrators?
Where a dispute arises between the executors or administrators or between an executor or administrator and a beneficiary of the estate, the dispute shall be referred for arbitration to the Registrar of the High Court or a Chief Magistrate.
What are the main things to note before writing a will?
- A person should be at least 18 years old
- A person should be of sound mind
- A person should not be under the influence or control of any person that it takes away one’s will/power/natural affections
- A person should not be under the control or influence of drugs, alcohol or intoxicants such that they take away his or her freedom of mind or his or her natural affections
- A person who has a hearing impairment, physical impairment, speech impairment or visual impairment is capable of making a will if he or she is able to do so.”
- A person who ordinarily has a mental illness may make a will during an interval in which he or she does not have the mental illness
What a good will should have?
- Names of the maker
- Names of spouse(s)
- Names of children
- Names of dependent relatives
- Date
- Description of property (for instance the Block/Plot/location/Account Numbers)
- Distribution of property (which beneficiary gets which property)
- Conditions, if any (for instance a beneficiary may be given property but with a condition that he or she pays school fees for another beneficiary)
- An executor(s) who will implement the will
- Names, address, and signature of the maker on each page
- Names, addresses, and signature of at least two witnesses on each page
What can be disposed of in my will?
- Only property that belongs to you
- Property that you are to receive in the future e.g. pension or employment benefits and gratuity
- You should not distribute property that does not belong to you for instance property held under a title registered as a joint ownership
Can the testator distribute his or her principal residence or other residences?
The principal or other residential holdings of a testator shall not form part of the property to be disposed of in a will, except where the testator makes reasonable provision for the accommodation at the same station in life, for the spouse (s) and the lineal descendants who occupy the principal or other residential holdings at the time of his or her death.
Can a witness benefit under a Will?
A witness is not allowed to receive a share under a will.
What are the main offences under the law of succession?
- A person who intermeddles with the estate of a deceased person faces a maximum fine of UShs. 20,000,000/- or imprisonment not exceeding ten years; or both fine and prison time. The person would also be required to pay for (make good) any damage or loss to the estate or the beneficiaries.
- Any person who evicts or attempts to evict a beneficiary entitled to occupy a residential holding faces a maximum fine of UShs. 3,360,000/- or imprisonment not exceeding seven years; or both fine and prison term.
- An administrator, executor or executrix who, before the grant of letters of administration or probate, misapplies the estate of the deceased person or subjects it to loss or damage, is guilty of an offence and is, on conviction, liable to imprisonment for a term of two years or to a fine not exceeding UShs. 960,000/-; or to both fine and prison term.
In addition to this penalty, the person convicted shall be liable to make good, to the estate and the beneficiaries of the estate the loss or damage so occasioned.”
- Where a grant of probate or letters of administration is revoked by court on the grounds that it was obtained fraudulently or by concealing information from court or where it is revoked because the administrator or executor has mismanaged the estate; the executor, executrix or administrator shall, once convicted be liable to imprisonment for a term not exceeding three years or to a fine not exceeding UShs. 1,440,000/-; or to both prison time and fine.
- An executor, executrix or administrator who misapplies, misappropriates or cannot account for the proceeds accruing to the estate of a deceased person or to a beneficiary of the state, or subjects the estate or a beneficiary to loss or damage, commits an offence and upon conviction faces imprisonment for a term not exceeding three years or to a fine not exceeding UShs. 20,000,000/-; or to both prison term and fine.
The court shall in addition to those penalties order the executor, executrix or administrator to make good the loss or damage occasioned to the estate or beneficiary.
- An executor or administrator who occasions loss to the estate by negligent act or omission which causes loss to the estate of a deceased person or to a beneficiary under the estate of a deceased person commits an offence and is liable, commits an offence and is liable, on conviction, to imprisonment for a term of three years or to a fine not exceeding UShs. 20,000,000/-; or to both prison term and fine. This is in addition to making good any loss caused to the estate or the beneficiaries.
- A person who takes possession of property of a deceased person for more than three months without authority of Letters of Administration/Probate or without the authority of the Administrator General commits an offence and is liable, on conviction, to a fine not exceeding UShs. 20,000,000/- or imprisonment not exceeding ten years; or to both fine and prison term. This is in addition to making good any loss caused to the estate or the beneficiaries.
- A person who refuses or neglects to deliver any property to the Administrator General or his or her agent when called upon to do so; or lawfully takes possession of the estate property and fails or neglects to report to the Administrator General the particulars of the property and of the steps taken to preserve such property, commits an offence and is liable, on conviction to imprisonment for three years or to a fine not exceeding UShs. 1,440,000/-; or both fine and prison term.
- A person who knowingly gives false information or makes false statements in a petition or declaration relating to an estate of a deceased person commits an offence that, on conviction, may lead to imprisonment for a maximum of seven years or a fine not exceeding UShs. 3,360,000/-; or to both fine and prison term.
- A guardian who misappropriates the property of a minor commits an offence and is liable, on conviction, to imprisonment for a term not exceeding five years or to a fine not exceeding UShs. 3,000,000/-. This is in addition to making good any loss caused to the minor.
- Where Letters of Administration or Probate has been revoked by Court, a person who wilfully and without reasonable cause omits to deliver the revoked probate or letters to the Court that issued it commits an offence and is liable, on conviction to imprisonment for a term of three years or a fine not exceeding UShs. 1,440,000/-; or both fine and prison term. This is in addition to making good any loss or damage occasioned to the estate or to the beneficiaries.
Is it possible to offer services to a beneficiary and be paid out of that beneficiary’s share in the estate?
No. It is an offence to acquire part of a beneficiary’s share in an estate for services rendered to the beneficiary. The penalty, on conviction, is imprisonment for a maximum of 5 years or a fine not exceeding UShs. 2,400,000/-; or both fine and prison term.
Who has the right to occupy the principal or other residential holding(s) formerly occupied by the deceased?
In the case of a residential holding occupied by an intestate prior to his or her death as his or her principal or other residence, the following categories of persons who were normally resident in the residential holding shall be entitled to occupy it:
- the spouse as long as she or he is unmarried
- a lineal descendant below 18 years of age
- a lineal descendant who is aged between eighteen and twenty-five years of age, who is undertaking studies and is not married
- a lineal descendant who has a disability at the time of the death of the intestate was not married and was wholly dependent on the deceased for his or her livelihood.
Who owns the principal or other residential holding formerly occupied by the deceased?
The residential holding occupied by an intestate prior to his or her death as his or her principal or other residence becomes the property of the surviving spouse(s) and the lineal descendants. Where the surviving spouse also dies, the entire property devolves to the lineal descendants.
How does one oppose an application for Probate or Letters of Administration?
Lodge a caveat at the Registry of the Court where the application has been made. Support your caveat with a Statutory Declaration giving reasons for it.
What happens after one has lodged a caveat against a petition for Letters of Administration or Probate?
The Court shall not take any step to process the grant unless the caveat has been vacated voluntarily, or where the Court makes a decision that the caveat should be vacated.
What is the responsibility of the caveator or petitioner after a caveat has been lodged?
Both the caveator and or the petitioner are required to commence a civil suit challenging the petition or the caveat within six months of the caveat being lodged. If either of them fails to institute the suit within six months of the caveat being lodged, both the caveat and the petition shall lapse. However, if the caveator fails to sue and his or her caveat lapses, he or she is barred from lodging another caveat in respect of the same estate.
Savings and Transitional
- A grant of probate or letters of administration issued by a court of competent jurisdiction before the coming into force of the succession (Amendment) Act, 2022 (31st May 2022) shall remain valid for a period of three years. Court may extend the period for justifiable reasons.
- A grant of probate or letters of administration issued to the Administrator General before the coming into force of the succession (Amendment) Act, 2022 shall remain valid for a period of five years. Court may extend this period for justifiable reasons.
- A will made before the coming into force of the succession (Amendment) Act, 2022 shall not be affected by the provisions that require the testator and witnesses to sign and provide their addresses on each page.
