NAME-----------Mutesi Phiona

REG NO---------------------BS18B11/273
COURSE UNIT------ FAMILY LAW 2
LECTURER----------- COUNSEL PATIENCE TUSINGWIRE
TUTOR-----------------COUNSEL RUTH KULABAKO

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The passing of the succession Amendment Act is a total waste of time and tax payers’
money. It will have no impact in addressing succession challenges in Uganda “Discuss the
veracity of the above statement in light of the succession Amendment Bill 2019.

The law of succession is generally concerned with the transfer of devolution of property of a
deceased person upon death. Succession relates to that which descents to their heir on the death
of the owner

The origin of Uganda’s law of Succession can be traced back as far as the succession ordinance
of 1906 which was adopted from England. Due to its short coming the law was subsequently
amended in 1972 by succession Amendment decree As such the provisions in the current laws
are outdated and do not reflect the contemporary social, economic, changes of the day and
changes in other laws specifically Equality and Non discrimination guarantees enshrined in 1995
constitution of the republic of Uganda.

A Bill according to black’s law dictionary1, Its defined as a formal written complaint such as
court paper requesting some specific action for reasons alleged.

on 12th August 2019 Government introduced in parliament five bills, including the succession
Amendment Bill 2019 to amend the succession act 162.

The succession Amendment Bill of 2019 to a larger extent will address the succession
challenges in Uganda has discussed below.

Clause 2 of the succession(Amendment)Bill of 2019 propose to delete section 3 of the succession

Act section 3 provides as follows
“ interests and powers not acquired nor lost by marriage. No person shall, by marriage, acquire
any interest in the property of the person whom he or she marries nor become incapable of doing
any act in respect of his or her own property which he or she could have done if unmarried”
The above provision prohibits a person from acquiring interest in property of a person he or she
marries but at the same time empowers a married person to hold property exclusively during the
substance of a marriage.The effect of this provision is that property that married persons have
acquired before marriage doesn’t become matrimonial property. Furthermore a married person
may during substance of the marriage acquire a deal with property in his or her right without the
same becoming matrimonial property.The principle that a married person can during the
subsistence of a marriage own property exclusively without the same constituting matrimonial
property was recognized in the decided case of Julius Rwabinumi v Hope Bahimbisomwe 2
where in justice Twinomujuni held that Matrimonial property is joint property between husband
1
Black law dictionary 7th edition on page 176.
2
Julius Rwabinumi v Hope Bahimbisomwe civil appeal no 30/2007

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and wife and should be shared equally on divorce, irrespective of who paid for what and how
much was paid. however the application of the principle may vary depending on the nature of
the marriage.

2019 Succession Amendment Bill Clause 8 proposes to amend sub section 2 of section 28 of
the succession act Cap 162 to allow a lineal descendant to take apportion of what that person’s
parent would be entitled to had he or she predeceased the deceased person. This close a lacuna in
section 28 which had required that all beneficiaries get an equal share of the estate. This was not
practical since the different beneficiaries have their own uniqueness which might entitle one
beneficiary to benefit more compared to the other. Section 28 of succession Act Cap 162 didn’t
take into account contribution in acquiring and keeping the property that is being distributed
meaning that granting them equal rights during distribution doesn’t take into account their
unique contribution to the property, therefore the amendments proposed in 2019 succession
amendments bill will bring equity and fairness in the distribution of property of the deceased
person.

Clause 8 still of the succession amendment bill 2019 proposes to amend section 30 of the
succession Act Cap 162. Section 30 of succession act bars a spouse who has separated from the
deceased person at the time of death from inheriting from that state.
The 2019 Bill proposes to limit the application where it’s the deceased instate who separated
from surviving spouse at the time of his or her death and directs that in such situation, the estate
is considered as if there is no separation. The Bill also proposes to limit when a person may
apply from court for an order excluding the applicant from the applicant of the section. The Bill
proposes that a person may only apply within six months from the death of the spouse and not at
any time before death as current provision provides. The proposed amendment will have the
effect of allowing a surviving spouse to benefit from the estate of a deceased person where the
deceased person is the one that separated from the surviving spouse. The unfairness of section 30
of Succession Act was further exposed in the case of Nyendwoha Lucy V Nyendwoha Robert3
where the wife left the husband on account of insecurity on 21 may 1982, the husband was
gunned down on 2nd June 1982, court held that such separation (as in section 30) didn’t mean any
physical separation for a given reason barred the wife from benefiting from the estate of the
deceased.

Clause 15 of the 2019 Bill proposes to amend Section 38 of the principal act. This Section
makes provision for court to order payment out of the estate of the deceased person for
maintenance of dependants where a person makes a will and doesn’t make provision for the
maintenance of dependants relatives. The 2019 succession amendment bill proposes to include
spouse, Lineal descendants and dependant relatives in the provision and limit the grant of

3
Nyendwoha lucy v Nyendwoha Robert HCCA 1068/83.

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maintenance to include spouse, lineal descendant and dependants relatives in specified
circumstances. This is intended to remove absurdity in the law wherein, the law had empowered
court to alter will to provide for maintenance of a dependants relative and not spouse or children
of a deceased person. The provision is absurd since it assumed that a person has on obligation to
provide maintenance for his or her relatives and not his or her own children or spouse.

The 2019 Succession Amendment Bill 2019 variously makes provision for the amendment of
sections of the succession Act 162 which are obsolete, redundant or affected by decision of the
court. for instance in the case of law advocacy for women in Law &Advocacy for women in
Uganda V Attorney General4 declared provisions of the succession Act relating to the
distribution and discriminating against the female gender. Clauses 10,11,12 of the bill repeal
section 31, 34 and 35 of the succession Act 162 since they are obsolete further more clause 50
deletes the words “district delegates” and “lunantic” because the words are obsolete making
their existence in the succession Act redundant.

The Bill proposes to amend section 37 of the principal act to put on obligation on a person
who makes a will to make reasonable provision for the maintenance of his or her spouse, lineal
descendants and dependants relatives, the provision further empowers a person where testator
makes a will without making provision for the maintenance of a spouse lineal descendant or
dependent relative, to apply to court for redress. I support this amendment since it will now
impose an obligation for the maintenance for his imposes an obligation for the maintenance for
his dependant relatives in addition to his or her spouse. Because the current provision in the Act
only imposes an obligation on a testator to make provision for the maintenance of his dependant
relatives yet there is no obligation form the maintenance of the deceased person’s surviving
spouse or children.

The Bill in clause 20 proposes to amend section 50 (C) of the principal Act. Section 50 (C)
of the succession act cap 162 deals with affectation of wills and it requires that the will shall be
affected by two or more witnesses each of whom must have seen the testator sign or affix his or
her mark to the will or have seen some other person sign the will in presence and by the direction
of the testator. The Bill proposes to amend Section 50 (C) to require that each of the witness
attesting to his or her name and address on the last page this will enhance transparency and help
in identifying the witness of a will and validating the authority of the will.

Clause 24 of the 2019 Bill proposes to amend succession Act 5. its affect that the appointment
of the executor may be express by necessary implication. The Bill proposes to amend Section
183 of the principal act to require that where a testator who is survived by a minor child does
not expressly appoint an executor but appoints a guardian shall act as the executor. This in my

4
Law & Advocacy for women in Uganda v Attorney General constitutional petition no 13 of 2005.
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Succession Act, S183.

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view will Harmonize the provisions of the act with those of children act in far as recognizing that
were a guardian is appointed he or she will be granted probate to administer the estate of the
deceased person where the beneficiaries overall below the age of the minority.

The amendment succession bill of 2019 to alarger extent will address the challenges of
succession however this bill has got its short comings as observed below.

The distribution scheme provided in section 27 of the succession Act cap 162 and 2019 Bill
does not take into account religious requirements especially of persons professing the Muslim
faith, during distribution of property. Where so Uganda is a secular state, Article 29(1) (C) of the
constitution guarantees a person’s freedom to practice any religion and manifest such practice in
the practices of any religious body or organization.

The succession Bill 2019 doesn’t regulate any matter arising of relationship that is not
recognized as a marriage under the law of Uganda for instance when it comes to administering
the estate of a deceased person and inheriting from the deceased person the relationship that are
recognized are blood relations, where a person is related to the deceased as belonging to the
same ancestors or marriage, that a person has a subsisting and legal marriage with the deceased
person. The above means that the person cohabiting with the deceased are not entitled to
administer the estate of the deceased person and are not as of right entitled to benefit from the
estate of the deceased person extent where they are specifically provided for in the will. The lack
cohabiting has led to the loss of proprietary rights by the surviving cohabiting partners of the
deceased person. There by going against the constitutution6 on equality for all before the law.

6
Constitution of Uganda 1995, Art 21(2).

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 BIBLIOGRAPHY

Constitution of Uganda 1995.

Succession Act 162.
Uganda land reform commission report on succession in Ugamda.
Report of Uganda women network on succession in Uganda.