Amendments to Succession Law in Uganda under the Succession (Amendment) Act 2022

**New Proposed Amendments Under the Succession (Amendment)Bill, 2021**

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Background

In 2007,several provisions of the Succession Act, Cap 162 were declared unconstitutional by the Constitutional Court in Law Advocacy for Women in Uganda v. Attorney General, Const. Petition No s 13/2005 & 05/2006 in as far as they discriminated on the basis of sex and did not accord equal treatment in the division of property between male and female.

The declaration by the Court left a lacuna in the law that the Succession (Amendment) Act seeks to address by amendments to the Succession Act in order to accord equal rights between men and women and bring the Act in conformity with the Constitution.

Two Bills on the same subject matter were tabled before Parliament, one a Private Members’ Bill by Rosette Kajungu Mutambi, MP, Mbarara in 2018 and another, on behalf of government, by Attorney General in 2021. The committee ultimately processed both Bills, merging them into one and adopting the reform proposals with minor changes.

The Succession (Amendment) Bill, 2021 was gazetted on September 27,2021, and the proposed amendments to under the Bill are detailed in our Legal Alert at: https://www.alp-ea.com/post/new-proposed-amendments-under-the-succession-amendment-bill-2021 and was passed with a few changes and additions by Parliament which shall be discussed under this Alert.

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Additional Amendments in the Succession Amendment Act 2022

(a) Residential Property: The Act, in addition to the provisions in the Bill, creates an offence for persons who unlawfully evict a surviving spouse, lineal descendant or dependent relative who are entitled to occupy the residential holding or any other residential holding. Such person is liable to a fine not exceeding one hundred and sixty-eight currency points (UGX3,260,000/=) or imprisonment not exceeding 7 years or both.”

(b) Consent: The Bill had the introduced a requirement for the consent of spouses and lineal descendants prior to the disposal of estate property by administrators. However, the Act also empowers the executor or administrator to apply to court for redress where consent is unreasonable withheld by the spouse and descendants.

(c) Disputes between Executors or Administrators: The Act provides for dispute settlement in an estate with more than one executor or administrator or between the executor or an administrator and a beneficiary of the estate. Any dispute between the parties shall be referred for arbitration by the Registrar of the High Court or a Chief Magistrate.

(d) Timeline of administration and execution of an estate: The Bill only provided for a time period of 2 years for administration by an administrator or executor. The Bill did not provide for the administration by the Administrator General. This was addressed by the Parliament and the administration by the Administrator General shall remain valid only in respect of the trust created under Section 27(2) of the Act and shall expire when the trust expires.

(e) Effect of the timelines on existing probates and letters of administration: The Act provides that any probate or letters of administration issued to a person by a court of competent jurisdiction before the coming into force of the amendment Act, shall remain valid for a period of three years after the coming into force of the amendment Act.

A grant of probate or letters of administration issued to the Administrator General before the coming into force of the amendment Act, shall remain valid for a period of five years after the coming into force of the amendment Act.

(f) Attestation to wills: The Bill made it a requirement for each of the witnesses to write his or her name and address on every page of the will in the presence of testator. The Act provides for the validity of the rest of the will where a page of a will is not attested and states that where a person attesting a will does not write his or her name or address on a page of a will, the will shall be valid except that the page of the will which does not bear the name or address of the testator shall, unless otherwise directed by Court.

(g) Void wills: The Bill had added other factors that make a will void, to include fraud, undue influence, duress, coercion, mistake of fact, or abuse of position of trust or vulnerability rather than just fraud or coercion under the current law. The Act, as a way to save wills that are inexistence at the commencement of the amendment Act from the strict application of the amendments, provides that a will made before the coming into force of amendment Act shall not be affected by the provisions of the amendment.

(h) Application for probate: The application shall be made within one year from the date of death of the testator. The Act provides that where a person named as executor in a will does not apply for probate within one year, a beneficiary under the will may, with the will annexed, apply for letters of administration.

(i) Separated spouses: The Act provides that a surviving spouse of an intestate shall not take any interest in the estate of the intestate if, at the time of death of the intestate, the surviving spouse was separated from the intestate. However, this shall not apply where—(a) the surviving spouse has been absent on an approved course of study in an educational institution; (b) the intestate was, at the time of his or her death, the one who had separated from the surviving spouse as a member of the same household; or (c) the intestate is the one who caused the separation.

This grants court the discretion to determine, on a case by case basis, justifiable grounds upon which a surviving spouse may be allowed to benefit from the estate of an intestate notwithstanding the separation of the surviving spouse from the intestate.

(j) Meaning of child: The Act restricts the reference to a child in a will to apply only to the biological and adopted children of the testator since the word “lineal descendant” used in the bill was broad and includes all persons who are descended in a direct line from the deceased person and includes a grandchild of the deceased and any person related to the deceased in a direct descending line up to six degrees downwards.

In addition, the Act removes any unlawful distinction between children, whether they have been acknowledged by their parent or not, legitimate or illegitimate.

(k) Gifts in contemplation of death: The Act requires every donation of a gift made in contemplation of death of a value exceeding UGX 500,000/= to be in writing.

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Conclusion

The amendments in the Act, transform the law of succession in Uganda, by addressing the lacunas in the Succession Act, to provide for gender equality and repealing provisions that were declared unconstitutional and, in addition, they solidify principles for the distribution of the estate of deceased persons in Uganda.

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Disclaimer

No information contained in this alert should be construed as legal advice from ALP East Africa or ALP Advocates or the individual authors, nor is it intended to be a substitute for legal counsel on any subject matter.

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