What if I have no Will?

Tuesday September 14 2021
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A Will. If one dies without a Will, a family meeting should be held to agree on administrators. PHOTO/courtesy

By Guest Writer

The most ideal way to succession planning is having a valid Will before one’s demise. However, many do not to make wills, either under the assumption that their death is not imminent, or due to the lack of knowledge about wills, thereby dying intestate. Yet death is not the only reason why an estate may need administration. A person’s estate may need to be managed by another in situations where one is declared a missing person or of unsound mind.

Where a person disappears from Uganda for at least six months without leaving instructions on the administration of their estate, the law permits any of the person’s relatives to apply to court for an order to manage that person’s estate. The concurrence of the family of the missing person is necessary before making that application. If none of the relatives apply within 12 months of the disappearance, the Administrator General may apply to manage the estate if it is in public interest.

Courts dealing with such applications have the right to inquire into the disappearance and even summon anyone indicated in the application as having an interest in the property. Thirty days must elapse from the date of filing the application before the court can grant it, except where special reasons are given. But such an application can be challenged by lodging an objection any time before the hearing of the application.

Grounds for objecting include having knowledge of the alleged missing person’s whereabouts, having authority from the alleged missing person to manage the estate in their absence, the existence of a family arrangement nominating a different person to manage the estate, or the fact that the estate will not suffer despite non-management. Where an order is granted, the manager must manage the estate in the best interest of all concerned or else, court may revoke or vary the order granted. Such orders only give general or special management powers but do not allow for the mortgaging, charging, transferring, sale or gifting of the missing person’s immovable property. A manager may lease the property but not for longer than three years. They are only allowed to invest in a limited range of securities permitted in the Trustees Act. Neglecting duties under a management order or misusing the property may lead to civil and criminal liability.

Mental disability

In case a person suffers a mental disability. The law allows relatives of such a person to obtain an order for authorizing the management of the estate of a “person of unsound mind” subject to court adjudging such person to be of unsound mind.  In this case, the court may require that the person whose estate is sought to be managed is served with a notice of the application. A person seeking to be a manager of such an estate must give a bond to court as security for the administration of the estate. If the owner of an estate heals from their mental disability, a manager may be discharged only after they have given an account to court of all the property and money belonging to the estate.

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Besides these situations which leave an estate in need of administration even before death, what happens when a person dies without making a will, or where a will is successfully challenged? Where a person dies intestate, the process of administering their estate requires that letters of administration are obtained from court, allowing a specific person or persons to distribute the property as agreed upon by those that survive the intestate. A key step in this process is to organise a family meeting to arrive at a consensus about the person(s) to be the appointed administrators.

This process is organised by the deceased’s family with the guidance of the Administrator General’s office. Except where the person seeking letters of administration is the spouse to the deceased (widow/widower), the person chosen must obtain a Certificate of No Objection from the Administrator General before petitioning court for the Letters of Administration. Notice of the petition must then be published in the newspapers for 14 days to lodge a caveat objecting to the said grant. 

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