Distribution of deceased’s property under the proposed Succession Bill

Monday May 13 2019


By Jonathan Ochom

The media has been awash with stories over the proposed amendments to the current law that governs the distribution of property upon death. The Succession (Amendment) Bill, 2018, currently under scrutiny by the Committee on Legal and Parliamentary Affairs seeks to amend the Succession Act, Cap 162 (1906) to, among other things, bring it in conformity with the Constitution.

Of interest has been the public discourse on the distribution of property of a deceased who has not written a will. This is known as intestate succession. Section 27 of the current Act provides guidance on how such property is distributed based on different scenarios.
First, where the deceased is survived by a customary heir, a wife/wives, a lineal descendant (children) and dependent relatives, they are entitled to 1 per cent, 15 per cent, 75 per cent, and 9 per cent of the estate respectively. In the absence of a wife or dependant relatives, their proportion will go to the children.

Secondly, where the deceased is survived by a customary heir, a wife/wives and a dependent relative, but no children, the beneficiaries are entitled to 1 per cent, 50 per cent and 49 per cent respectively.

Thirdly, in an instance where the deceased is survived by a customary heir and either a wife or a dependant relative, but no children, the customary heir and the wife or dependent relative will receive 1 per cent and 99 per cent respectively.

Fourthly, where the intestate leaves no person surviving him, other than a customary heir, the estate shall be divided equally between those relatives in the nearest degree of kinship to the intestate like parents and siblings.

Fifthly, in case the deceased is survived by only a customary heir, the whole of the property shall belong to the customary heir.
Lastly, in the event that there is no customary heir, the customary heir’s share in all the above scenarios shall belong to the legal heir.

When provisions of the Succession Act were challenged in the Constitutional Court in Law in the case of Advocacy for Women Uganda Vs Attorney General (Constitutional Petition No. 13/ 2005 & 5/2006), a number of legal issues were raised.

Specifically, the court noted that section 27 makes reference to only a male deceased person, which is discriminatory. This presupposes that either females do not or cannot own property, which is contrary to Article 26 of the Constitution on the right to all citizens to own property. It naturally follows that an owner of property, whether male or female, has a right to dispose their property through different ways like bestowing it to another upon death.

Currently, the surviving wife (or wives in a polygamous union) is entitled to only 15 per cent of the deceased’s estate yet the Constitution under Article 31 provides for equality of men and women during marriage and at its dissolution.
Death dissolves a marriage, and when it occurs, the surviving spouse should be entitled to an equal share, ie 50 per cent of the estate.
To this end, the Bill proposes that where the deceased is survived by a spouse, children and dependant relative only, they will receive 50 per cent, 41 per cent and 9 per cent respectively. Where there’s no spouse or dependant relative, the share that would ordinarily go to either of them shall go to the children.

In case the deceased is survived by a spouse and dependant relatives, but no children, the spouse shall get 80 per cent and the dependant relatives 20 per cent. Where the deceased is survived by a spouse or dependant relatives and has no children, the surviving spouse or dependant relative gets 100 per cent of the estate.

Where there is neither a spouse, children nor dependant relatives, the property is divided equally among the relatives in the nearest degree of kinship to the intestate like parents and siblings who do not qualify as dependant relatives. Lastly, where the deceased leaves no one behind under the above categories, that property shall be managed by the Administrator General.

It is important to note that the new Bill disentitles the customary heir to any portion by virtue of their role. According to most Ugandan traditions, the customary heir is usually one of the children of the deceased and naturally receives a share as such.
Whereas the position now was fashioned to ensure cohesion and continuity, it has many times been abused, with many of those appointed instead using the property for their own gain.

The absence of effective customary mechanisms to check their powers exacerbates the situation. The Bill maintains the role of a customary heir as ceremonial except if duly appointed as administrators by court.
The Succession (Amendment) Bill thus seeks to align section 27 with the Constitution by recognising women’s right to own and dispose their property at death as well increase the entitlement of the surviving spouse.

Mr Ochom works at LANDnet Uganda.
This article was co-authored by Ms Rebecca Atayo,
who also works at LANDnet Uganda.