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THE SUCCESSION

(AMENDMENT),

BILL 2018.

18 th^ April, 2018 THE REPUBLIC OF UGANDA

VOLUME II

i THE SUCCESSION (AMENDMENT), BILL 2018 18 th^ April, 2018

56. Substitution of the First Schedule to the principal Act.

• 1.POLICY AND PRINCIPLES........................................ TABLE OF CONTENTS
• 2.DEFECTS IN THE EXISTING LAW...........................
• 3.THE OBJECTIVES OF THE BILL.............................
• THE SUCCESSION (AMENDMENT) BILL,
• ARRANGEMENT OF CLAUSES
• THE SUCCESSION (AMENDMENT) ACT, 2018.........
• 1. Short title and commencement...................................
• 2. Amendment of section 2 of the Succession Act..........
• 3. Repeal of section 3 of the principal Act......................
• 4. Repeal of section 7 of the principal Act......................
• 5. Amendment of section 9 of the principal Act............
• 6. Substitution of section 13 of the principal Act...........
• 7. Substitution of section 14 of the principal Act............
• 8. Repeal of section 15 of the principal Act....................
• 9. Substitution of section 18 of the principal Act...........
• 10. Repeal of Part III of the principal Act.........................
• 11. Amendment of section 26 of the principal Act............
• 12. Substitution of section 27 of the principal Act............
• 13. Amendment of section 28 of the principal Act............
• 14. Substitution of section 29 of the principal Act..............1
• 15. Amendment of section 30 of the principal Act............
• 16. Repeal of section 31 of the principal Act....................
• 17. Repeal of section 34 of the principal Act..................
• 19.Amendment of section 36 of the principal Act...............
• 20. Amendment of section 38 of the principal Act............
• 21.Substitution of section 43 of the principal Act.............
• 22. Substitution of section 44 of the principal Act............
• 23. Insertion of new section 44A to principal Act.............
• 24. Amendment of section 45 of the principal Act............
• 25. Substitution of section 46 of the principal Act............ iii
• 26. Substitution of section 47 of the principal Act............
• 27. Substitution of section 55 of the principal Act............
• 28. Substitution of section 87 of the principal Act............
• 29. Substitution of section 179 of the principal Act..........
• 30. Amendment of section 200 of the principal Act..........
• 32. Substitution of section 203 of the principal Act..........
• 33. Substitution of section 204 of the principal Act..........
• 34. Insertion of a new section 204A to the principal Act...
• 35. Substitution of section 215 of the principal Act..........
• 36. Repeal of section 216 of the principal Act..................
• 37. Amendment of section 234 of the principal Act..........
• 38. Substitution of section 249 of the principal Act..........
• 39. Amendment of section 258 of the principal Act..........
• 40. Amendment of section 259 of the principal Act..........
• 41. Insertion of new section 267A to the principal Act.....
• 42. Substitution of section 268 of the principal Act..........
• 43. Substitution of section 270 of the principal Act..........
• 44. Substitution of section 272 of the principal Act.........
• 45. Substitution of section 273 of the principal Act..........
• 46. Repeal of section 276 of the principal Act..................
• 47. Amendment of section 278 of the principal Act..........
• 48. Substitution of section 279 of the principal Act..........
• 49. Insertion of a new section 311A in the principal Act...
• 50. Substitution of section 321 of the principal Act..........
• 51. Substituting of section 331 of the principal Act..........
• 52. Substitution of section 332 of the principal Act..........
• 53. Substitution of section 333 of the principal Act..........
• 54. Insertion of new section 333A to the principal Act.....
• 55. Amendment of section 335 of the principal Act........
• 57. Repeal of the Second Schedule to the principal Act...
• 58. Miscellaneous amendments to the principal Act..........

MEMORANDUM

1. POLICY AND PRINCIPLES

The object of the Bill is to amend the Succession Act, Cap. 162 to bring it in conformity with the Constitution of the Republic of Uganda and to reflect the current prevailing socio-economic circumstances in Uganda and internationally accepted human rights standards. The current Succession Act contains provisions that are discriminatory towards women contrary to the Constitution. Recent Constitutional Court pronouncement have rendered some of the provisions of the Succession Act unconstitutional and thus null and void on the basis of gender discrimination. The Act therefore needs to be reformed to bring it in conformity with the Constitution. The issues that need to be addressed include the gender insensitive sections which discriminate between men and women, the definition of child and protection of rights of children, surviving spouses. The right of occupancy and definition of principal residential holding also needs to be streamlined.

2. DEFECTS IN THE EXISTING LAW

The origin of Uganda’s law of succession can be traced as far back as the Succession Ordinance of 1906 which was adopted from English law. There were shortcomings in the Ordinance that led to the enactment of the Succession (Amendment) Decree, 1972. The Decree provided for intestacy in the case of Ugandans and recognized the rights of illegitimate and adopted children. Many of the provisions in the Decree of 1972 were discriminatory on the basis of sex. The current Succession Act, Cap 162 is a replica of the 1972 Ordinance and therefore still discriminatory and

The Constitution of the Republic of Uganda 1995 provides for equality of men and women. The current Succession Act which is a replica of the 1972 decree has discriminatory provisions that led to a Constitutional Petition decided on 5th^ April, 2007. In the case of Law & Advocacy for Women in Uganda v Attorney General of Uganda, Constitutional Petition No. 13 of 05: The Constitutional Court held that the provisions of sections 2(n) (I) (ii), 23, 26, 27, 29, 43, 44 of the Succession Act are inconsistent with Articles 20, 21, 24, 26, 31, 33, and 44 of the Constitution. Additionally, in the case of Administrator General Vs. Charles Acire & Another. HCCS. 235/1994: Court pointed out the fact that Section 311 of the Succession Act provides that where any person entitled to a share in the distribution of the estate of an intestate is a minor, the Succession law does not make provisions specifying the duties of the person holding the property, manner of investing the property, provisions for account to the minor when he or she becomes of age and does not provide penalties for breach of these duties. Lastly, the Constitution Court in April 2007 declared sections 14, 15, 27, 8(a), 43, 44(2)(n)(i), of the Succession Act null and void. These rulings have further created a lacuna in the Succession Act which need to be addressed urgently.

3. THE OBJECTIVES OF THE BILL

The Bill seeks to amend the Succession Act, Cap 162 - a. address the gaps in the current Act including providing for gender equality in matters of succession in accordance with articles 21 and 33 of the Constitution; b. repeal or amend section that were declared unconstitutional by the Constitutional Court; c. remove any provision that is discriminatory on the ground of sex; d. streamline the definition of minor to conform to the Constitution; e. refine the definition of customary heir or heiress to remove discrimination; f. clearly provide for the protection of principal residential holding for the benefit of the surviving spouse and lineal dependants; g. to revise the provisions relating to domicile of spouses upon marriage; h. to revise the percentages of distribution of the estate of an intestate to increase the percentage of the surviving spouse; i. to provide for the appointment of guardians for minor children by either parent; j. to provide for the powers and duties of guardians; k. to provide for the lapse of probate or letters of administration after three years subject to renewal by

THE SUCCESSION (AMENDMENT) BILL, 2018

Arrangement of Clauses Clauses

1. Short title and commencement.
2. Amendment of section 2 of the Succession Act.
3. Repeal of section 3 of the principal Act.
4. Repeal of section 7 of the principal Act.
5. Amendment of section 9 of the principal Act.
6. Substitution of section 13 of the principal Act.
7. Substitution of section 14 of the principal Act.
8. Repeal of section 15 of the principal Act.
9. Substitution of section 18 of the principal Act
10. Repeal of Part III of the principal Act.
11. Amendment of section 26 of the principal Act.
12. Substitution of section 27 of the principal Act.
13. Amendment of section 28 of the principal Act.
14. Substitution of section 29 of the principal Act.
15. Amendment of section 30 of the principal Act.
16. Repeal of section 31 of the principal Act.
17. Repeal of section 34 of the principal Act.
18. Substitution of section 35 of the principal Act.
19. Amendment of section 36 of the principal Act.
20. Amendment of section 38 of the principal Act.
21. Substitution of section 43 of the principal Act.
22. Substitution of section 44 of the principal Act.
23. Insertion of new section 44A to principal Act.
24. Amendment of section 45 of the principal Act.
25. Substitution of section 46 of the principal Act.
26. Substitution of section 47 of the principal Act.

27. Substitution of section 55 of the principal Act.
28. Substitution of section 87 of the principal Act.
29. Substitution of section 179 of the principal Act.
30. Amendment of section 200 of the principal Act.
31. Insertion of new section 201A to the principal Act.
32. Substitution of section 203 of the principal Act.
33. Substitution of section 204 of the principal Act.
34. Insertion of a new section 204A to the principal Act.
35. Substitution of section 215 of the principal Act.
36. Repeal of section 216 of the principal Act.
37. Amendment of section 234 of the principal Act.
38. Substitution of section 249 of the principal Act.
39. Amendment of section 258 of the principal Act.
40. Amendment of section 259 of the principal Act.
41. Insertion of new section 267A to the principal Act.
42. Substitution of section 268 of the principal Act.
43. Substitution of section 270 of the principal Act.
44. Substitution of section 272 of the principal Act.
45. Substitution of section 273 of the principal Act.
46. Repeal of section 276 of the principal Act.
47. Amendment of section 278 of the principal Act.
48. Substitution of section 279 of the principal Act.
49. Insertion of a new section 311A in the principal Act.
50. Substitution of section 321 of the principal Act.
51. Substituting of section 331 of the principal Act.
52. Substitution of section 332 of the principal Act.
53. Substitution of section 333 of the principal Act.
54. Insertion of new section 333A to the principal Act.
55. Amendment of section 335 of the principal Act.
56. Substitution of the First Schedule to the principal Act.
57. Repeal of the Second Schedule to the principal Act.
58. Miscellaneous amendments to the principal Act.

2. Amendment of section 2 of the Succession Act.

The Succession Act in this Act referred to as the principal Act is amended in section 2 – a. by substituting for paragraph (b), the following- “(b) “child,” “issue” and “lineal descendant” means the offspring of the deceased regardless of the age of the off spring including a child adopted by the deceased in a manner recognised under the laws of Uganda; b. by inserting the following new paragraph immediately after paragraph (d) “(da) “currency point” has the value assigned to it in the First Schedule;” c. by substituting for paragraph (e) the following- “(e) customary heir or heiress” means a person recognised under the rites and customs of a particular tribe or community of a deceased person as being the customary heir or heiress of that person;” d. by substituting for paragraph (f), the following- “daughter” includes a daughter adopted in a manner recognised under the laws of Uganda; e. by inserting immediately after paragraph (j), the following- “(ja) “guardian” means a person having legal and parental responsibility for a minor child;” f. by repealing paragraph (l); g. by substituting for paragraph (n) the following- “(n) legal heir” means the living relative nearest in degree

to an intestate”; h. by substituting for paragraph (o) the following- “(o) minor” means a person who has not attained the age of eighteen years, and “minority” means the status of such person; i. by inserting immediately after paragraph (p) the following- “(pa) “other residential holding” means- i. a residential holding owned by the intestate as a residential holding- but not occupied by him or her, surviving spouse and any children under the age of eighteen years because he or she was living in premises owned by another person or in a principal residential holding; or ii. a country home occasionally occupied by him or her, surviving spouse and any children under the age of eighteen years;” j) by inserting immediately after paragraph (r) the following- (ra) “principal residential holding” means the residential holding normally occupied by the spouse , surviving spouse and any children under the age of eighteen years prior to the death of one of the spouses as their principal residential holding and includes the house and the chattels in the house and one third of the land on which the is located or a portion of the land surrounding the house as the court may in the circumstances determine;” k) by inserting immediately after paragraph (u) the following- “(ua) separation” means either separation for a period of

“person”; and b. by inserting immediately after the word “his” wherever it appears, the word “or her”.

6. Substitution of section 13 of the principal Act.

The principal Act is amended by substituting for section 13 the following- “13. Domicile of origin of a minor. Where a parent or guardian of a minor is domiciled in Uganda, that child is domiciled in Uganda.”

7. Substitution of section 14 of the principal Act.

The principal Act is amended by substituting for section 14 the following- “14. Domicile of choice. A person may acquire the domicile of his or her spouse upon marriage if that person did not have the same domi- cile as the spouse before marriage.

8. Repeal of section 15 of the principal Act.

The principal Act is amended by repealing section 15.

9. Substitution of section 18 of the principal Act

The principal Act is amended by substituting for section 18 the following- “18. Where a person dies leaving movable property in Uganda, in the absence of proof of any domicile else- where, succession to the property shall be regulated by the laws of Uganda.”

10. Repeal of Part III of the principal Act.

The principal Act is amended by repealing Part III.

11. Amendment of section 26 of the principal Act.

Section 26 of the principal Act is amended- a. by substituting for subsection (1), the following- b. “(1) The principal residential holding and any other residential holding shall devolve to the surviving spouse and lineal descendants of the deceased.” c. by repealing subsection (2)

12. Substitution of section 27 of the principal Act.

The principal Act is amended by substituting for section 27 the following “27. Distribution on the death of an intestate. (1) Subject to sections 29 and 30, the estate of an intestate, except his or her residential holding or other 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 50 percent; ii. the dependant relatives shall receive 9 percent; iii. the lineal descendants shall receive 41 percent of the whole of the property of the intestate, but where the intestate leaves no surviving spouse or dependant relative under paragraph a (i) or (ii)

shall have due regard to- a) the nature of the relationship between the deceased and the applicant; b) contribution made by the applicant to the deceased’s estate; and c) any other relevant evidence that the court deems necessary.”

13. Amendment of section 28 of the principal Act.

Section 28 of the principal Act is amended – a) in subsection (1) by substituting for the word “wives” the word “spouses”; b) by inserting immediately after subsection (1) the following- “(1a) Notwithstanding subsection (1), in the distribution of property among members of the same class, the administrator shall consider the circumstances of each case including the age, contribution, duration of marriage or degree of dependency of the beneficiary.; (1b) A person aggrieved by the decision of the administrator under subsection (1a) may appeal to the court against the decision within fourteen days from the date of the decision.”

14. Substitution of section 29 of the principal Act.

The Principal Act is amended- a) by substituting for section 29 the following- “29. Reservation of a principal and any other resi- dential holding from distribution.

(1) A spouse or child of an intestate occupying a residential holding or any other residential holding under section 26 shall not be required to bring that occupation into account in assessing any share in the property of an intestate to which the spouse or child may be entitled under section 27. (2) A person entitled to any interest in a principal residential holding or any other residential holding under section 26(1) shall not be required to bring that interest into account in assessing any share in the property of an intestate to which that person may be entitled under section 27. (3) A person who evicts or attempts to evict the occupants of the principal residential holding or any other residential holding commits an offence and is liable on conviction to a fine not exceeding five thousand currency points or imprisonment not exceeding seven years or both.”

15. Amendment of section 30 of the principal Act.

Section 30 of the principal Act is amended as follows- a) by inserting immediately after subsection (1) the following- “(1a) The provision of subsection (1) shall not apply where at the time of death, it is the intestate who had separated from the surviving spouse.”; and b) by substituting for subsection (3) the following-