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SUCCESSION (AMENDMENT) BILL 2011
AN ACT RELATING TO SUCCESSION
Memorandum
1.0 The principle
Article 31(2) of the 1995 Constitution of the Republic of Uganda provides that Parliament shall make appropriate laws for the protection of the rights of widows and widowers to inherit property of their deceased spouses and to enjoy parental rights over their children.
Article – 247 of the 1995 Constitution of the Republic of Uganda provides that Parliament shall by law establish an efficient, fair and expeditious machinery for the administration and management of the estates of deceased persons; and ensure that the services of the department or organization established for the purpose are decentralized and accessible to all persons who may reasonably require those services and that the interests of all beneficiaries are adequately protected.
2.0 Defects in the existing law
In line with Article 137 (3) (a) the 1995 Constitution which provides that a person who alleges that— an Act of Parliament or any other law or anything in or done under the authority of any law is inconsistent with or in contravention of a provision of this Constitution, may petition the Constitutional court for a declaration to that effect, and for redress where appropriate, Law and Advocacy for Women in Uganda challenged some sections of the Succession Act. The issues raised were:
- Whether Section 27 of the Succession Act, which provides for male intestacy and not for female intestacy, is constitutional?
- Whether section 27 which also generally grants a widow of the estate 15%; while the widowers enjoy 100% is constitutional?
- Whether rule 8 (a) of the Second Schedule to the Succession Act which provides that a widow’s right of occupancy in a residential holding terminates upon remarriage while that of a widower terminates upon death is constitutional?
- Whether section 43 of the Succession Act which provides that a guardian is appointed by the father and undermines the mothers’ parental rights?
- Whether section 2 (n) (i) and Section 44 of the Succession which gives preference to the male lineage over female lineage in choosing a legal statutory guardian is constitutional?
- Whether section 14 of the Succession Act which awards automatic acquisition of domicile upon marriage to a woman and not to a man is constitutional?; and
- Whether section 15 of the Succession Act which terminates a woman’s acquired domicile upon legal separation is constitutional?
The Constitutional Court in April 2007 declared the above-mentioned sections of the Succession Act null and void. This ruling created a lacuna in Succession Act.
3.0. The objectives of the Bill
The objectives of the Bill are to:
- Fill the lacuna in the Succession Act created by the Constitutional Court ruling.
- Provide for the distribution of any property amongst the beneficiaries to the estate of an intestate.
1.0 Short title
This Act may be cited as the Succession (Amendment) Act 2011.
2. Interpretation
“child,” “children,” “issue” and lineal descendant” means the offspring of the deceased regardless of the age of the off spring and includes children born or adopted within or outside marriage;
“Court” means Magistrate Grade I.
“guardian” means a person having parental responsibility for a child;
“Principle residence” means a residential holding occupied by the intestate, surviving spouse and any children under the age of 21 years prior to his or her death ;
“Other residential holding” means residential holding owned by the intestate as a principal residential holding but not occupied by him or her, surviving spouse and any children under the age of 21 because he or she was living in premises owned by another person.
“minor” means any person who has not attained the age of 21 years.
3. Succession to a deceased person’s immovable and movable property. The Succession Act, Chapter 162, Section 4(3) (a)
The Succession Act, Chapter 162, Section 4(3) (a) is hereby repealed.
4. Domicile of origin of a minor.
If any parent or guardian of a minor is domiciled in Uganda, that child is domiciled in Uganda.
5. Domicile of choice
A person is free to take up the domicile of the person who he or she marries.
6. Wife’s domicile during marriage. The Succession Act, Chapter 162, Section 15.
The Succession Act, Chapter 162, Section 15 is hereby repealed.
7. Succession to movable property in Uganda. The Succession Act, Chapter 162, Section 18.
The Succession Act, Chapter 162, Section 18 is hereby amended by substituting for it the following:
18. Succession to movable property in Uganda.
If a person dies leaving movable property in Uganda, in the absence of proof of any domicile elsewhere, succession to the property is regulated by the law of Uganda.
8. Distribution on the death of a male intestate. The Succession Act, Chapter 162, Section 27
The Succession Act, Chapter 162, Section 27 is hereby amended by substituting for it the following:
27. Distribution on the death of an intestate.
(1) Subject to sections 29 and 30, the estate of a person dying intestate, except his principal residential holding, shall be divided among the following classes in the following manner—
(a) Where the intestate is survived by a spouse, a lineal descendant and a dependent relative—
(i) The spouse shall receive 20 percent;
(ii) The dependent relative shall receive 9 percent;
(iii) The lineal descendants shall receive 71 percent of the whole of the property of the intestate,
but where the intestate leaves no person surviving him capable of taking a proportion of his property under paragraph (a)(i) or (ii) of this paragraph, that proportion shall go to the lineal descendants;
11. Distribution between members of the same class. The Succession Act, Chapter 162, Section 28.
The Succession Act, Chapter 162, Section 28 is hereby amended by substituting for it the following.
All lineal descendants, spouses and dependent relatives shall be entitled to share their proportion of a deceased intestate’s property in equal shares.
12. Separation of husband and wife. The Succession Act, Chapter 162, Section 30
The Succession Act, Chapter 162, Section 30 (3) is hereby amended by substituting for it the following:
Sec 30(3)
Notwithstanding subsection (1), a court may, on application by or on behalf of such husband or wife, whether during the life or before distribution of the intestate’s property, declare that subsection (1) shall not apply to the applicant.
13. Notice to be given by a customary heir. The Succession Act, Chapter 162, Section 31.
The Succession Act, Chapter 162, Section 31 is hereby repealed.
14. Settlement of minor’s property in contemplation of marriage. The Succession Act, Chapter 162, Section 35.
The Succession Act, Chapter 162, Section 35 is hereby amended by substituting for it the following:
35. Settlement of minor’s property in contemplation of marriage.
The property of a minor may be settled in contemplation of marriage, provided the settlement is
made by the minor with the joint approbation of the minor’s parents or parent, if one living or a guardian or, if none are living, with the approbation of High Court.
15. Provision for property distribution where the deceased has omitted the surviving spouse in the will. The Succession Act, Chapter 162, section 36A.
The following section 36A is inserted after section 36 of the Succession Act, Chapter 162.
This provision should be inserted after Sec 36.
Sec 36(A) should be inserted as.
A married person may not dispose of a principle residence by will if he or she is survived by a spouse or child.
16. Power of the court to order payment out of the estate of the deceased for maintenance of dependents.
The Succession Act, Chapter 162, Section 38 (ii) is hereby amended by substituting for it the following:
The provision for maintenance to be made by an order under subsection (1) shall—
(ii) In the case of a dependant who has not been married, or who is, by reason of some mental or physical disability, incapable of maintaining herself, her marriage or the cessation of her disability, whichever is the later;
203. Citation of persons entitled in priority to administer.
Administration shall not be granted to any relative if there is some other relative entitled to a greater proportion of the estate until a citation has been issued and published in the manner hereafter provided calling on that other relative or to accept or refuse letters of administration.
20. Entitlement between members of the same class. The Succession Act, Chapter 162,
section 204.
The Succession Act, Chapter 126, section 204 is hereby amended by substituting for it the following:
204. Entitlement between members of the same class.
If there are two or more person who are entitled to the same proportion of the estate, those person are equally entitled to administration, and a grant may be made to any one or some of them jointly.
21. Citations or notice by persons or entities applying to administer. The Succession Act, Chapter 162, section 204A.
The Succession Act, Chapter 162, section 240A is hereby added as follows:
240A.
Citations or notice by persons or entities applying to administer.
- Subject to section 6(3) of the Administrator General’s Act, any person or entity applying for letters of administration must give definite notice in writing in presence of a witness to dependant relative of the deceased of the person’s intention to apply for letters of administration at least 30 days prior to applying for letters of administration.
ii) If proving such notice under the terms of subsection (1) is impossible, the applicant may satisfy the terms of subsection (1) by issuing or publishing such notice clearly and conspicuously in a publication likely to be seen by the dependant relative for a period of at least 14 days prior to applying for letters of administration.
22. Punishment for the false averment in petition or declaration. The Succession Act, Chapter 162, section 249.
The Succession Act, Chapter 162, section 249 is hereby amended by substituting for it following:
249. Punishment for false averment in petition or declaration.
If any petition or declaration which is required to be verified contains any averment which the person making the averment or the verification knows or believes to be false, that person or persons shall be subject to punishment for fabricating evidence under section 93 of the Penal Code Act.
23. Married or Single Executors or Administrators. The Succession Act, Chapter 162, section 276.
The Succession Act, Chapter 126, section 276 is hereby amended by substituting it for the following:
276. Married Executrix, Executor o Administrator.
For avoidance of doubt, when probate or letters of administration have been granted to any
married man or woman, such person has all the powers of an ordinary executor or administrator.
24. 46. Inventory and account. The Succession Act, Chapter 162, section 278.
The Succession Act, Chapter 126, section 278 is hereby amended by adding the following:
279. Property of the deceased.
(a) An executor or administrator shall collect, with reasonable diligence, the property of the deceased, and the debts that were due to him or her at that time of his or her death.
b) Debts incurred by the deceased against the principle residence or any other residence during marriage without written consent of the spouse who, prior to the deceased’s death shared that
principle residence with the deceased, shall be void and excluded from payment from the deceased’s estate.
