What you need to know:
On many occasions, families get embroiled in property sharing wrangles upon the death of property owners. Some legal shareholders are deprived of their right shares, some are cheated and others get what they are not supposed to get. We take a look into how properties are supposed to be shared
Family inheritance gone wrong is unfortunately as common as it can be dehumanising. This phenomenon happens to people from all economic divides.
As long as there is property to be shared there will always be someone who believes they got less than their due resulting in airing of long-held hostilities even before the terrazzo on the grave has dried.
In Kyanja, a Kampala suburb, family members of the late Wilson Buyondo are finalising arrangements to share his estate. As these things usually go, a section of the family feels more entitled to his estate and is therefore, trying to dictate who should get what. One of the daughters believes her nieces and nephews have no right to the property since their parents died before getting their portion.
Another family member brings up the unfair custom that daughters cannot inherit more property a right to their father’s home where they can seek refuge in case their marriages fail. But fortunately, Buyondo left an ironclad will, which states the amount of property to be shared by all his surviving children, and for the deceased ones, their shares should go to their children.
Physical assets are extremely hard to share and distribute among family members. It becomes even trickier if the deceased has not left a will behind or if the will is unusual. For instance, a family in Terere village, Buikwe District, is fighting over a property that a deceased member of family solely bequeathed to his granddaughter much as the deceased had dozens of children, a legal spouse, grandchildren and a parent.
Lawyer and women rights activist, Milly Nassolo Kikomeko, says that whereas those who leave a will have the discretion to distribute their property, there are sections of the law that they must comply with. One of those is the Succession Amendment Act that became law as of April 10, 2022. Nassolo mentions that since women’s inheritance rights are often violated, the law helps to protect their equal right to inheritance.
“Wives, daughters and granddaughters are frequently denied the right to inherit their deceased fathers, husband’s property, especially land yet they are protected by the law,” she says.
Who has a right to share?
According to the law, all children of the deceased, legal spouse, and legal dependents are entitled to a share when properties get to be distributed.
Both male and female dependents as well as both spouses in a marriage are catered for.
She, however, notes that whereas those who leave a will, have the discretion to distribute their property, the Act grants courts powers, under Section 38, to dispose of all their property if they have not made reasonable provision for the maintenance of their spouse, lineal descendant (children, grandchildren or great-grandchildren) and dependant relatives.
“In circumstances where someone dies and issues of inheritance and succession arise, the distribution of the deceased person’s property may either be according to the deceased person’s will which is called testate succession, or according to the set of laws for property division if the person died without leaving a will which is termed as intestate succession,” Nassolo says.
She adds that the deceased persons’ properties are shared depending on legal percentages if they have not left a will.
“In case such a person is survived by a spouse, a lineal descendant, a dependent relative and a customary heir will share 20 percent, four per cent, 75 percent and one percent respectively,” she says.
The law further provides that in cases where a person has no surviving spouse or dependent relative capable of taking a portion of the property, that portion shall go to lineal descendants and if survived by a spouse, a dependent relative and a customary heir, but has no lineal descendant, the spouse receives 50 percent, dependent relative receives 49 per cent and the customary heir shall receive one percent.
“However, if such a person is survived by a spouse or a dependent relative, but no lineal descendant, the spouse or the dependent relative, shall receive 100 percent,” she says.
Lawyer Nabuguzi Kiwanuka, explains that law prescribes that all children no matter whether they are born out of wedlock, including those legally adopted have a right to their legal share.
She adds that in cases of wills that are not fair to children, parties involved have a very sound legal foundation to claim their property rights in court. Nabuguzi adds that in cases when the deceased has no surviving legal beneficiary, the property is controlled by the administrator general.
Nabuguzi further clarifies that according to the new legislation, upon the death of a surviving spouse, the family home shall transfer to the lineal descendants equally, who shall occupy it subject to the terms and conditions set out in the act. She also adds that children are never entitled to their parent’s property while the parents are still alive.
Beneficiaries are protected
In the new law, Nassolo says that it is an offence for anyone to unlawfully evict a surviving spouse, lineal descendant or dependent relative from the family home.
And in case anyone evicts lawful beneficiaries, they are liable to a fine not exceeding one hundred and sixty-eight currency points Shs3.26m or imprisonment not exceeding seven years or both. The law also states that for one to sell inherited property, they require consent of spouses and lineal descendants.
However, the Act also empowers the executor or administrator to apply to court for redress where consent is unreasonably withheld by the spouse and descendants.
Inheritance and foreign nationals
Nabuguzi notes that in cases when a Ugandan citizen upon death bequeaths their properties, say, land or house to a foreign national, there is no law prohibiting the foreigner from inheriting that property.
“If the inheritance involves immovable property, then there is a provision in the constitution that regulates the conditions. Immovable property in Uganda, which is owned by a foreigner outside Uganda, is regulated by the national law of the foreigner’s home country as long as the property owner makes a will to that effect,” she adds.
She adds that if a non-Ugandan in Uganda does not make a will, when they die, their properties are distributed according to the laws of Uganda, irrespective of where they come from.
However, the 1995 constitution of Uganda provides that if the property consists of land, and such land was held by a deceased Ugandan citizen in freehold or mailo forms of tenure, then a foreigner cannot freely inherit such land, since the Constitution states that Ugandan land belongs to the citizens of Uganda, and shall vest only in them.
“The Constitution provides for foreigners to acquire a leasehold interest in Ugandan land for either 99 or 49 years,” she adds.
If a foreign national with assets in Uganda neglects to make a will, then the Succession Act determines their successors, representatives and legal heirs.