Succession Law Amendment Presentation Colored.pptx

SUCCESSION LAW IN UGANDA:
An overview of the recent developments
Presented by
Robert Ali Bogere
Note:
While great care has been taken to verify its accuracy, this work represents the interpretation of the
law by the author hereof. These are not the views of the Administrator General. This presentation is
not an exhaustive exposition on the amended succession laws. It is not intended as, and should not
be confused for, legal advice. Feedback is welcome: +256706435350 (WhatsApp only) &
robertbogere@gmail.com

The Law
The Administrator General’s (Amendment) Act; Act No. 7 of 2022
The Succession (Amendment) Act; Act No. 3 of 2022
The Administration of Estates (Small Estates) (Special Provisions)
(Amendment) Act; Act No. 5 of 2022
Probates (Resealing) (Amendment) Act, 2022

S.13 Succession (Amendment) Act; concerning S.26 (principal Act) on devolution of
residential holdings
Principal & other Residential Holdings:
• GENERAL RULE: Testator is not allowed to bequeath Principal & other
Residential Holdings to any person (S.21(d) of the Amendment Act, introducing
a new S.36(6) in the principal Act)
• Principal & other Residential Holdings become the property of surviving spouse
& lineal descendants (S.13(a) of the Amendment Act, amending S.26(1) in the
principal Act). Originally, principal residence devolved to the legal heir, which
class of beneficiary has been expunged from the law.
PROBLEM: S.1(J), Amendment Act introduces S.2(ma) in the principal Act,
defining a lineal descendant to mean “a person who is descended in a direct line
from the deceased & includes a child, a grandchild of the deceased & any person
related to the deceased in a direct descending line up to six degrees
downwards.” Interpreted thus, S.26(1) would mean that all persons who fit into
this definition (e.g. great-great-grandchildren) would have automatic claims to
the residential holdings; yet the intention had been to restrict this to lineal
descendants “in the first degree’’ (children of the deceased).
continues on next slide

S.13 Amendment Act; concerning S.26 (principal Act) on residential holdings continued
• If surviving spouse dies before the lineal descendants, residential holdings devolve
to the lineal descendants under a tenancy in common. (S.13(b), Amendment Act,
introducing a new S.26(2a) & S.26(2c) in the principal Act; read together with
S.21(d), Amendment Act, that introduces a new S.36(8) in the principal Act).
QUESTION: Why is the law following property that has left the estate of the
deceased? This section now introduces “2nd deceased person” (at death of the
surviving spouse). What if a child dies before the surviving spouse?
• EXCEPTIONS TO GENERAL RULE: testator may bequeath residential holdings if
he/she makes reasonable provision for the accommodation of spouse, lineal
descendants or dependent relatives entitled to occupy the residential holding.
(S.36(9), principal Act; introduced under S.21(d), Amendment Act). COMPARE with
S. 72(c)(v), Amendment Act relating to Para. 8(2) in Schedule 3, the principal Act,
that requires provision of alternative accommodation, AT THE SAME STATION IN
LIFE, before mentally or physically lineal descendant who was wholly dependent on
the deceased can vacate the residential holding.
• IMPORTANT: the new S.279(2) renders void all debts incurred by the deceased
against the principal/other residential holdings, without the written consent of the
spouse who shared the residential holding with the deceased. (introduced under
S.62 of the Succession (Amendment) Act)

Amended Section 26 as to devolution of residential holdings continued
• The amendment implies/creates a joint tenancy when the property
devolves to surviving spouse and lineal descendants; which it converts into
a tenancy in common where spouse dies before lineal descendants (the new
S.26(1), read together with 26(2a), S.26(2c), & S.36(8)).
• If surviving spouse were a tenant-in-common with the lineal descendants,
his/her interest would survive after death. The only way the share of the
surviving spouse ends with their death is if the property is held under a
joint tenancy with the lineal descendants.
• The amendment provides that the duty of the testator to provide reasonable
accommodation is owed to the surviving spouse, lineal descendants and
dependent relatives who are entitled to occupy his or her residential
holdings. Section 72 of the Amendment Act amends the Second Schedule to
principal Act. The former Second Schedule is now the Third Schedule.
• The Third Schedule provides that the persons entitled to occupy the
residential holdings left by the deceased are - (a) spouse, (b) minor child, (c)
unmarried school-going lineal descendant above eighteen; and (d) a
dependent lineal descendant with mental or physical disability.

Amended Section 26 on devolution of residential holdings continued
Definition & types of residential holdings for purposes of the law of succession:
Juliet Kalema vs. William Kalema & Anor (Civil Appeal 95 of 2003) [2004] UGCA 15:
I think the use of the words "matrimonial property" in the pleadings was a
misnomer. It is misleading and partly explains perhaps why the trial judge
found that the suit property was not constructed to be a matrimonial home.
The law (of Succession) is not concerned with matrimonial property, but
with residential holdings. Per BYAMUGISHA, JA
• Note: even as Kalema v Kalema above was decided on 16th August 2004; it is a
more correct restatement of the law on residential holdings than is Herbert
Kolya vs Ekiriya Mawemuko Kolya (Civil Suit 150 of 2016) [2020] UGHCFD 4 (03
July 2020); where Court gave the principal residential holding to the surviving
spouse on the basis that it was matrimonial property.
• By holding that “matrimonial property” (automatically) passes on to the
surviving spouse at death, Kolya v Kolya actually ignored the decision in
Rwabinumi v Bahimbishomwe (S.C.C.A No. 10 of 2013); which decision Court
was awake to and cited.
continued on next slide

Amended Section 26 as to devolution of residential holdings continued
analysis of Kolya v Kolya continues
• Kolya v Kolya, is not a good authority on succession matters, particularly on residential
holdings & wills. Court totally extinguished the deceased’s right to own property and
transferred all his interests to the widow under a false presumption of joint tenancy.
• This violated a married person’s Constitutional right to own property in his personal
capacity as was upheld in Rwabinumi v Bahimbishomwe; yet the Court, in its decision,
protected this very right for the widow concerning her property at Makindye; which
the husband purported to distribute in his will.
• Even if we were to apply the law of divorce/marriage in succession matters - (a
common mistake of which even the court fell prey to in Kolya v Kolya) - since Court
found that the suit land was acquired by the deceased before marriage as a gift from
his father; the Court should at the very least have demarcated the property into two
parts (basing on contribution) - because the deceased owned the land, while the wife
is said to have contributed more to the developments on it.
• In the preceding scenario, after the surviving spouse took off her share, the remaining
share of the deceased would have devolved under the law of succession, with the
surviving spouse also getting her share as a widow. This would resemble a tenancy-in-
common.
• The Court also erred in invalidating an entire will because of what it perceived as a
failed bequest. A bequest may fail but the will remains valid. Courts have traditionally
sought to protect the sanctity of wills, save in cases of clear reasons for invalidity.

Amended Section 26 as to devolution of residential holdings continued.
Commingling the law of succession, marriage, & divorce
• Many legal professionals keep referring to “matrimonial home/property” in succession
matters. As we have seen in Juliet Kalema vs. William Kalema & Anor (supra), the law of
Succession doesn’t have the concept of “matrimonial property”. For married persons,
succession law “kicks in” when one of them is dead and there is no more “matrimony”
to speak of. The surviving spouse is no longer under “matrimony”. Any former
“matrimonial home” becomes either a “principal” or “other residential” holding.
• Succession law deals with property owned by the deceased. Marriage and Divorce Law
concern property owned by, and or acquired during a subsisting marriage between,
two living persons. Interpolating these different legal regimes leads to confusion.
• A HYPOTHETICAL: one Sudhir, (alleged billionaire), becomes a widower and marries a
new wife. If they were to end up in Divorce Court, the general rule, applying the law of
Marriage and Divorce, is that the new wife would be entitled to share only in
matrimonial property acquired (or lived in) during the subsistence of the marriage, and
even then, generally only to the extent of her contribution.
• Yet if she married Sudhir today and he died intestate next week; under succession law,
she would be entitled to 20% of his ENTIRE fortune, including property acquired when
she was not born or when he was married to other women. Succession law gives a
surviving spouse more latitude to share than does marriage and divorce law.
Arguments like “I contributed to the acquisition of the property” are irrelevant in
succession law.”

The usual suspects: multiple homes; multiple spouses/partners; and children continued
• The Amendment Act clearly provides that Principal & other Residential Holdings
become the property of the surviving spouse & lineal descendants (S.13(a) of the
Amendment Act, amending S.26(1) in the principal Act).
• The Amendment Act does not limit ownership to only those who were staying in a
particular residential holding (yet it clearly restricts occupancy only to those who
were staying in particular residential holdings at the time of deceased’s death).
• This means that a child whom the deceased left in a rented property (not owned
by the deceased), is entitled to a share in the residential holdings (left behind by
the deceased); even though that child is not entitled to occupy any of the
residential holdings left by the deceased (until the occupancy rights of those who
stayed therein with deceased are extinguished under the Third Schedule).
• NOTE: Section 15 of the Amendment Act replaces Section 28 of the principal Act.
Under the amended S.28(1) if you are a child, a spouse, or a dependent relative of
the intestate; you get the same portion in the estate as every individual who falls
in the same category as you. The only explicit exception relates to the 20% trust
created to take care of minors, disabled dependent relatives, and unmarried,
school-going lineal descendants under the age of 25.

The usual suspects: multiple homes; multiple spouses/partners; and children continued
THREE JUDGMENTS SHOWING THE DIFFICULTY COURTS HAVE TO GRAPPLE WITH:
A.Hadadi Mohamed Rajab & 5 Ors Vs Muzamil Mohamed Rajab & 2 Ors (H.C.C.S. No. 188
of 2015; dated 26th August 2019); Hon. Lady Justice Katunguka held that:
All (residential holdings) as occupied by the (widows) were not a distribution of the
estate & as such the deceased did not distribute his property amongst his family
before his death. The homes as established by the intestate…would come in handy to
guide the mode of distribution...The wives who were occupying the (deceased’s)
‘residential holdings’ shall continue to occupy them & cultivate the adjoining land.
B. Jjuuko Ali & 16 Ors vs. Fausia Jjuuko Kikonyogo (C.A.C.A. No. 18 of 2019; decision dated
31.10.2022). The Court of Appeal maintained that distribution of the estate would be
according to where each widow & her children lived. The Court did not consider the
value of each residential holding or the number of children each widow had.
Court cited Sections 26, 27, & 29 of the Succession Act that had been nullified in Law
Advocacy for Women in Uganda v. Attorney General (Constitutional Petitions 13/2005 &
05/2006). The decision Jjuuko & 16 Ors vs. Jjuuko (supra) is not a good authority, if only
for this reason. In Elizabeth Wamala vs. Jolly Kasande & Ors, S.C.C.A No. 10 of 2015; the
Supreme Court faulted the Court of Appeal for citing provisions of the Succession Act
that were nullified in Law Advocacy for Women in Uganda v. Attorney General (supra).
discussion continues on next slide

Three Court Decisions multiple homes; multiple spouses/partners; and children continued
Oblivious of & contrary to the provisions of the Succession (Amendment) Act, the
Court directed that the formula for distribution of residential holdings should be
premised on where each widow & her children stayed; but Court inexplicably
ordered that the title for the suit property, (& compensation from UNRA for
compulsorily acquiring part of the property), should be transferred the widow
alone (excluding even her own children). There are glaring contradictions in the
decision.
C. Mukasa James & 2 Ors vs. Nagawa Harriet (H.C.C.S No. 325 of 2018, decision of 3rd
May, 2023); Hon. Justice Alice Komuhangi Khaukha held as follows:
This Court is unable to make a finding & an order that the plaintiffs & their
siblings born & raised in the Kinaawa home are the only beneficiaries of the
Kinaawa land. This Court was informed that the deceased had other children
apart from those born and raised in Kinaawa. It therefore follows that the other
children of the deceased are as entitled to the Kinaawa land as those…born &
raised on the Kinaawa land. This is because no evidence was adduced in this
court to indicate that each family was expressly granted what they lived on
before the death of the deceased by the deceased...Similarly, the
children…born & raised on other pieces of land are not the sole beneficiaries of
those pieces of land.
Continues on next slide

Three Court Decisions on multiple homes; multiple spouses/partners; & children continued
• The decisions of Hon. Justices Katunguka (in Hadad vs Rajab) & Alice
Komuhangi (in Mukasa James & 2 Ors vs. Nagawa Harriet) best represent the
position under Amendment Act, even as Hon. Justice Katunguka made her
decision before the Amendment.
• It is a fallacy to claim that by a husband accommodating any of his wives in a
particular residential holding that he owns, he has gifted it, inter vivos, to her
& her children, if any. It is contrary to the Constitution & to the decision in
Rwabinumi vs. Bahimbishomwe (supra). It is not written anywhere in the law
• REMEMBER: it is now mandatory that gifts inter vivos of movable property
valued over Shs. 500,000/= MUST BE IN WRITING (S.179(4), principal Act, as
amended by S.35 of the Amendment Act). How then can we imply gifts inter
vivos of immovable property (including land and houses potentially worth
billions); without documentary proof?
ends on next slide

Three Court Decisions on multiple homes; multiple spouses/partners; & children
CONCLUSION:
• Holding that spouses/children staying in a residential holding owned by the
deceased are exclusively entitled to it upon the owner’s death has no basis
under and directly contravenes several specific provisions of the Act. It would
discriminate against children who were not living in residential holdings owned
by the deceased. The fact these children may even be minors or under disability
serves better to bring home the injustice such a position would entail. In many
cases, all the deceased owns is the residential holding & the land its built on.
• It also has potential to give some beneficiaries vastly larger shares than others
(belonging to the same class) where the several residential holdings have vastly
different valuations/beneficiaries. FOR EMPHASIS; under the amended S.28(1)
if you are a child, a spouse, or a dependent relative; you get the same portion in
the estate as every person who falls in the same category as you. This was
beautifully captured in the decision of Hon. Justice Alice Komuhangi (supra).

Section 14, Succession (Amendment) Act. Replacement of Section 27
of principal Act (estate distribution as to a person dying intestate)
• In case there are dependent children or children who are below 25
but still going to school, a maximum of 20% is reserved to meet
their needs. (The new S.27(2))
• The rest of the estate is reconstituted as the 100% available and is
then distributed in the following percentages: (The new S.27(1)(a))
• surviving spouse gets 20%
• dependent relatives get 4%
• lineal descendants get 75%
• customary heir get 1%

Section 14, Succession (Amendment) Act. Replacement of Section 27 of principal
Act on intestacy (continued)
• In case the dependent lineal descendants or minor children do not require the
maximum reserved portion of 20%; whatever is not required is added to the
general estate available for distribution (the new S.27(5))
• PROBLEM: the new S.27(2)(b) suggests that any lineal descendant between 18 to
25 is entitled to this 20% if, at the time of the death of the intestate, he or she was
undertaking studies & was not married. There is no proviso that the subsection
should apply only to those lineal descendants who were wholly dependent on the
intestate as is the restriction in the new S.27(2)(c). S.27(2)(b) may result in possible
claims for support by all school-going and unmarried lineal descendants even of
whom the deceased wasn’t responsible for during his/her lifetime. (For instance
lineal descendants who are below 25 but divorced/widowed)
• There is no proviso that S.27(2)(b) applies only to lineal descendants in the first
degree (i.e., children of the ); given that the term “lineal descendants” includes
grand/great-grandchildren etc. An opportunity was missed to simplify the law by
referring to children, grandchildren, etc.; instead of lineal descendants.
• Surviving Spouse who remarries before distribution is entitled to their share (new
S.27(7)). Same applies if he/she dies before distribution, but its not in S.27(7).

Section 14. Replacement of Section 27 on intestacy continued
Beneficiaries shares change depending on who survives the intestate. For
instance:
Where intestate leaves ONLY lineal descendants and customary heir: (new
S.27(1)(b)): lineal descendants takes 99%; customary heir/heiress shall get 1%
If intestate leaves ONLY customary heir & spouse OR dependent relative:
(S.27(1)(d)): spouse or dependent relative gets 99%; Customary heir/heiress, 1%
If intestate is survived by a spouse, a dependent relative AND a customary heir but
no lineal descendant (new S.27(1)(c)): spouse takes 50%; dependent relative takes
49%; and customary heir gets 1 percent
Where intestate is survived ONLY by the customary heir: (S.27(1)(e))
• Heir’s 1% no longer exists and the estate shall be divided equally between those
relatives nearest in kinship to the intestate

Where intestate is survived ONLY by the customary heir: (S.27(1)(e)) continued
S.27(1)(e). Customary Heir is alive. No surviving lineal descendants; no
spouse; no dependent relative. Estate is divided equally between those
relatives nearest in kinship to the intestate
QUESTION: Is S. 27(1)(e) restricted only to relatives nearest in kinship (who
are alive at the time of distribution/death) or even those who died?
EXAMPLE: If I had two siblings, but at my death, only one is living: does
he/she take all my estate or does my dead sibling also get a share (if the dead
sibling left children of his/her own)? Does the situation change if both siblings
survive me but one dies before my estate is distributed?.
The correct position is that where there are living siblings of the deceased, &
dead siblings (who left children); all siblings of the deceased are given a share
(including those siblings who died but left children of their own).
But if, at the time of death, all siblings of the intestate are dead AND only
nephews/nieces are living, the nephews/nieces share equally. If there are 10
nieces/nephews, since all of them stand equal in degree to the deceased - (as
members of the same class in terms of S.28(1)) - they share equally, even if, 9
of them are born of one sibling and 1 is from another sibling of the intestate.

Section 15, Succession (Amendment) Act. Replacement of Section 28 of the principal
Act on predeceased children; and distribution between members of the same class
Distribution of property between members of same class
• If you are a child, spouse, or dependent relative of the intestate; you get the same
share as every individual who falls in the same category as you. (S.28(1))
A PREDECEASED SON OR DAUGHTER (S.28(2))
• Where a son or daughter (of the intestate) dies before the intestate; the share they
would have got (under S.28(1) above) shall be granted to the lineal descendant(s) of
that predeceased son or daughter, who survive the intestate. (new S.28(2))
As far as I know, the general rule under customary law and Sharia is that when an
intestate estate is being distributed, children who died before their intestate
father/mother are not given a share. However, under S.28(2) of the Succession Act, a
child who died before the intestate is also given a share, if that child left children of
his/her own (these grandchildren born of the predeceased child must survive their
intestate grandparent).
Cf. Section 96 in cases of where the bequest given to a predeceased lineal descendant
under a will survives where that lineal descendant lives offspring who survive the
testator

Section 17, Amendment Act. Replacement of Section 30 on separation of spouses
Section 30(1). A surviving spouse…shall not benefit from the estate of the intestate if
at the death of the intestate, he/she was separated from the intestate as a member
of the same household.
EXCEPTIONS:
I. where the surviving spouse is on approved study in an education institution (S.30(2)(a))
II. where the intestate is the one who separated from surviving spouse (S.30(2)(b))
(e.g. a couple separated when the husband ran off & cohabited with another woman.
Under the old legal position, if the husband died, the widow would not benefit; even
though she never left the home (she had to petition court for an exemption from the
general rule, within 6 months of the death of the husband).
III. where intestate is the one who caused the separation (S.30(2)(c)) (e.g. if Bugingo died)
IV. for good cause on application made within 6 months after the intestate’s death
NOTE: there is a tendency to conflate separation under the Succession Act with
judicial separation or with separation for purposes of desertion under the law on
divorce. Under the Succession Act, separation has no strict time element. Even if you
are separated for a day or one hour, the general rule applies; whereas
separation/desertion for divorce proceedings is for at least 2 years.
Elizabeth Wamala vs. Jolly Kasande & Ors, S.C.C.A No. 10 of 2015; the Supreme court
reaffirmed that: “separation under Section 30 is a matter of fact & not law.”

Section 30 on separation of spouses continued
• The Section does not provide for an explicit exception for separation
caused by work commitments, as is allowed for purposes of fighting
an action for divorce based on desertion.
• However: under the new Section 30(3), the surviving spouse may for
good cause apply to Court within six months of the death of the
intestate for a declaration that Section 30(1) should not apply. It is
reasonable to assume that work commitments away from home
would constitute good cause for exemption
• The former Section 30(3) allowed for this application to be made
during the lifetime of the intestate; which is no longer the case.

Sections 54 & 55, of the Amendment Act. Amendment of Sections 258 & 259 of the
principal Act. Validity and expiry of Probate/Letters issued after the Amendment
• Probate (S.258(2)) and Letters of Administration (S.259(2)) issued after the amendment
expire two years from date of issue. Letters issued to the Administrator General, also expire
after two years (S.8A(1) of the Administrator General’s Act, introduced under S.4 of the
Administrator General’s (Amendment) Act, 2022).
• Executor/Administrator may apply for extension (S.258(3) & S.259(3), respectively).
Applicant for extension must have complied with the provisions of the Act or any condition
on which probate was granted (e.g. filing inventory/Account); & must obtain the consent of
all beneficiaries. See also S.8A(2) of the Administrator General’s Act, introduced under S.4 of
the Administrator General’s (Amendment) Act, 2022
PROBLEM: What happens to transfer forms and other instruments executed by the
administrator/executor before the expiry of the grant but not lodged? Can the Office of Titles
register them when the grant no longer has life? (After what period would/should these
transfers be entertained; weeks, months or years after they were executed?).
If Land Office allows Transfer Forms (to be presented/lodged) after the expiry of grants, this
will lead to fraud; with holders of expired grants simply backdating Transfer Forms to periods
before the expiry of their grants. In my opinion, the best practice should be that land Transfer
Forms presented for registration after the expiry of the Letters of Administration/Probate held
by the transferor should be rejected (unless Court grants an extension in respect of the grant).
To hold otherwise would be to defeat the rationale for expiry/extension.

Validity and expiry of Letters of Administration: Letters/Probate
issued after the Amendment (continued)
EXCEPTIONS TO EXPIRY OF PROBATE/LETTERS OF ADMINISTRATION:
• Probate/Letters of Administration issued to a guardian (of a sole or residuary
legatee) under S.215 expire ONLY upon the minor attaining majority age (see
S.45 of the Amendment Act, amending S. 215(1) & (2) of the principal Act; read
together with S.258(4)(a) & S.259(4)(a)) of the principal Act, as amended by
Sections 54 & 55, respectively, of the Succession (Amendment) Act).
• Probate doesn’t expire where the deceased person is entitled to receive pension
until the pension has been fully paid. The new S.258(4)(b)
• Letters of Administration will remain (partially) valid where Section 27(2)
applies. The grant remains valid only for purposes of the trust created in respect
of the 20% of the estate reserved to meet the needs of beneficiaries who are
minors or dependent and attending school. The new S.259(4)(b). In effect, the
grant morphs into a limited grant by operation of law.
• Letters of Administration remain valid where estate is entitled to pension until
pension has been fully paid. The new S.259(4)(c)

Section 70 of the Amendment Act. Validity and expiry of Letters/Probate issued
BEFORE the Amendment
Section 70 of the Amendment Act, inter alia, introduces Section 341 in the
principal Act: on SAVINGS AND TRANSITIONAL PROVISIONS
• S.341(2): A grant of Probate or Letters of Administration issued by a court of
competent jurisdiction before the coming into force of this Act, shall remain
valid for a period of three years after the coming into force of this Act.
• S.341(3): A grant of probate or Letters of Administration issued to the
Administrator General before the coming into force of this Act, shall remain
valid for a period of five years after the coming into force of this Act.
• S.341(4): Court may extend the life of a grant issued before the amendment for
justifiable reasons.
QUESTION: are grants issued by Magistrate’s Courts (before the amendment), over
estates beyond their pecuniary jurisdiction, still valid; OR is S.341(2) to be strictly
interpreted to mean only grants from courts of competent jurisdiction were saved?
This depends on how courts will interpret of the term “court of competent
jurisdiction”.

Section 70, Amendment Act, on SAVINGS AND TRANSITIONAL PROVISIONS continued
A LEGAL LACUNA; A LOST OPPORTUNITY
• On 5th April 2007 the Constitutional Court in Law Advocacy for Women in Uganda v.
Attorney General (Constitutional Petitions 13/2005 & 05/2006) annulled S.27 on
distribution of intestate estates. From the date, we had no formula for distributing
intestate estates; until the enactment of the Succession (Amendment) Act, 2022. The
Court rejected the prayer to allow the Section to be construed/modified in order to
bring it into conformity with the 1995 Constitution.
• Unfortunately, the Succession (Amendment) Act, 2022 has not cured this lacuna for
estates of persons who died between 5th April 2007 and the enactment of the
Amendment Act. These persons died when S.27 was no longer law.
• This lacuna would have been resolved by providing that the provisions of the
Succession (Amendment) Act may, by leave of Court, be applied to the estate of any
person who died between 5th April 2007 and the enactment of the Amendment Act;
the administration of whose estate has not been completed. (Cf. The Succession
(Amendment) Decree, 1972 that contained several provisions with retrospective force)
• The Sections given retrospective effect under the Amendment are not as critical as S.27
is. These are S.6 of the Amendment Act (replacing S.13, principal Act, concerning
domicile of origin of a child); S.7 (replacing S.14, principal Act, concerning domicile of
choice); and S.46 (which repealed S.216 of the principal Act that related to issuance of
limited grants where executors or residuary legatees are minors).

Section 58, Succession (Amendment) Act. Replacement of Section 270 of the principal
Act on disposal of estate property by administrator/executor
• Executor/administrator can only dispose of property with the consent of the
beneficiaries (S.270 (1)).
• S.270(2): if beneficiary is a minor, the consent is given by the guardian but where the
guardian is also the executor or administrator, the consent shall be granted by court
• S.270(3): if consent is withheld by beneficiaries, the executor or administrator, may
apply to a court of competent jurisdiction for redress
• S.270(4): Court will only authorise sale/dealing if satisfied that the disposal of the
property is beneficial to the estate or to a beneficiary of the estate
• S.270(8): Any disposal of estate property in contravention of this section is void
QUESTION: How is Land Office to know whether an administrator is transferring to an
actual beneficiary or to a purchaser disguised as a beneficiary? We have seen lawyers
forging Letters of Administration, Wills, and entire Court Administration Cause files.
PRACTICE: Land Office should require beneficiaries’ written consents where a transfer is
to a non-beneficiary; otherwise such disposal is void. In my opinion, a transfer to a non-
beneficiary, contrary to this provision, cannot birth a bonafide purchaser for value. (See
S.16 of the Administrator General’s (Amendment) Act, 2022; which places similar
restrictions on the Administrator General).

S. 67 Amendment Act. Beneficiary's share not to form part of payment for services rendered
Insertion of Section 333A in principal Act
(1) A person who acts on behalf of a beneficiary in any matter shall not acquire any part of
the beneficiary’s share in the estate as payment for the services rendered.
(2) A person who contravenes subsection (1) commits an offence and is liable, on
conviction, to a fine not exceeding one hundred twenty currency points or
imprisonment not exceeding five years, or both.
• This provision arose out of the realisation that many lawyers and land dealers had
developed a practice of facilitating beneficiaries to obtain Letters of Administration, or
to process titles; and demanding sometimes up to 50% of the estate property.
• In the most depressing case, Court gave lawyers a decision saying that the deceased’s
estate owed them over 160 BILLION shillings. They used that Order to attach hundreds
of acres of prime land near Kampala for no work done for the beneficiaries). Despite
taking that land, they are still demanding well over 130 billion shillings!! They never
recovered EVEN ONE ACRE for the beneficiaries but simply used Court gymnastics until
they reached the Execution Division.
• Many judicial officers who know of this dispute admit embarrassment at how Court
was abused in this case for many reasons. These lawyers had been granted a Power of
Attorney to recover/process land titles due to the estate. Courts have held that
administrators cannot issue Powers of Attorney. Further, the Power of Attorney was
granted by only one administrator out of many who were appointed by Court; contrary
to Court decisions that say that to bind the estate, administrators must act together.

Section 63 of the Succession (Amendment) Act. Replacement of Section 311 of
the principal Act in respect of a minor’s share in an intestate estate
• S.311(1) Where a beneficiary under intestacy is a minor, the executor or
administrator shall deliver the share of the minor to the guardian of the
minor.
• S.311(2) The guardian shall (a) apply the property for the benefit of the
minor; (b) take steps to safeguard the property of the minor from loss or
damage; and (c) provide an annual account in respect of the property of
the minor to the surviving parent or court or to any other person as
court may direct.
• NOTE: a guardian must act jointly with the surviving parent unless
otherwise directed by court. (S.44B(1) & 44B(6)(a) & (b) of the principal
Act, introduced under S.26 of the Succession (Amendment) Act).
QUESTION: if the minor’s share is money, is the cash to be banked in the
beneficiary’s name; or will it be transferred to the guardian?

Section 31 (Amendment) Act; amendment of S.50 of principal Act as to attestation to wills
The amendment requires each of the witnesses to sign & write his or her name &
address on every page of the will in the presence of testator. The page that doesn’t
fulfil this is void, unless Court decides otherwise (S.31(a) of the Amendment
introducing S.50(1)(c) in the principal Act).
NOTE: new attestation requirements don‘t affect a will made before the amendment
(S.341(5))
PROBLEMS:
1. What if a will provides at bottom of one page that: “I give to Ali…” and the gift is
indicated on the next page that doesn’t fulfil the new attestation requirements?
Subjecting the validity of pages of wills to the discretion of judicial officers is
guaranteed to lead to inconsistency.
3. Why are witnesses required to sign & indicate their particulars on each page,
when the testator is not required to do so (yet witnesses do attest to the
testator’s execution, but not to the contents, of the will)? A will is one document;
why dissect it into void & valid pages?
4. While the new S.50(1)(c) requires each witness’s “name and address” on every
page of the will, S.50(2) speaks of “name OR address”. This has not been
remedied in The Law Revision (Miscellaneous Amendments) Act, 2023
“”

Section 30 Succession (Amendment) Act. Replacement of section 47
of principal Act as to wills obtained by fraud etc.
S. 47 on void wills:
The Amendment Act introduces new considerations that make a will
void, including:
• fraud,
• undue influence,
• duress, coercion,
• mistake of fact,
• abuse of position of trust,
• vulnerability,
that takes away the free will of the testator.

Sections 37 & 39, Succession (Amendment) Act; introducing Sections 184(2) & (190)(2) in
the principal Act: persons to whom Probate/Letters of Administration cannot be granted
• S.184(2) Court has the discretion to determine whether a person who is
otherwise qualified to be granted probate, is fit and proper; and court may
defer the appointment of an executor or executrix to a later date or refuse to
grant probate where an applicant is not suitable.
• Previously, Section 184 was only limited to rejecting petitions for probate by
persons having mental illness or by minors.
• S.190(2) Court has the discretion to determine whether a person who is
otherwise qualified to be granted Letters of Administration, is fit and proper and
court may defer the appointment of an administrator to a later date or refuse to
grant Letters of Administration where an applicant is not suitable.
• The former Section 190 was only limited to rejecting petitions for Letters of
Administration by persons having mental illness, or by minors.

Section 42, (Amendment) Act. Introducing S.201A, in the principal Act on
preference of surviving spouse to administer the estate of an intestate
• Section 201A. A surviving spouse shall have preference over any other person in
the administration of the estate of a deceased intestate
• NOTE: The Act now grants Court the power to reject any unsuitable or unfit
applicant, (including spouses) (S.190(2)).
• The Administrator General is empowered to reject a surviving spouse who is
unsuitable or unfit (S. 201A(2)(a); or where the Administrator General “finds it
necessary….,to grant the administration of the estate to another person.”
(S.201A(2)(b)).
• Since the Administrator General doesn’t grant Letters of Administration - in
S.201A(2)(b) - the legislature must have meant Certificate of No Objection
• NOTE: before the amendment, if a surviving spouse wished to co-administer
with other person(s), he or she could not be rejected (during the meeting to
nominate persons to receive Certificate of No Objection from the Administrator
General). See Administrator General vs. Akello Joyce Otti & Donato Otti
(Supreme Court C.A. No. 15 of 1993). This is no longer strictly so.
discussion continues on next slide

Preference of surviving spouse in administration: VETTING SPOUSES
• Thus, under the new regime, a spouse wishing to administer the estate
can be rejected for valid reason(s). Note, however, that PARLIAMENT
REJECTED the original proposal in Clause 5 of the Administrator General’s
(Amendment) Bill, 2019 that sought to amend Section 5 of the
Administrator General’s Act, to have widows/widowers vetted by the
Administrator General as a general rule.
• S.5 of the Administrator General’s Act (as amended), still exempts a
widow/widower from being vetted by the Administrator General as a
general rule, (when widow/widower is applying alone for Letters of
Administration).
• It follows, therefore, that the authority given to the Court and the
Administrator General to reject unsuitable/unfit applicants should not be
construed as a general rule requiring widows & widowers to, in all
instances, be vetted by the Administrator General.
• The Courts should use this mandate judiciously and not as a general rule;
otherwise their stance may get challenged if, for instance, they are faced
with a judicial officer or lawyer who is a surviving spouse. In fact, several
judges & lawyers have queried this practice in meetings I have attended.

Entitlement to administer continued: Sections 26, 28, 29, 45, & 63 of the Amendment Act
• The Administrator General has handled estates where the deceased left children
(minors) with boyfriends/girlfriends/cohabitees. If it was deemed necessary to involve
the boyfriends/girlfriends/cohabitees in estate administration; we would categorise
them as “friends” or “mothers/fathers of children” on the Certificates of No Objection.
THE POSITION OF A SURVIVING PARENT UNDER THE AMENDMENT
• Under S.44A(1)(a) & (b), the surviving parent has preference for becoming a customary
guardian. (Introduced under S.26 of the Amendment Act).
• The new S.46(1) provides that “A guardian appointed under this Act shall be the
personal representative of the minor for purposes of managing the share of the minor
in the estate of a deceased person.” (This is under S.28 of the Amendment Act).
• S.44(B)(1) “A guardian shall act jointly with the surviving parent of the minor unless the
court directs otherwise.’’ (Introduced under S.26 of the Amendment Act).
• S.63 (Amendment Act), replaces S.311 in the principal Act. Under S.311(1), the
beneficial share of a minor shall be handed over to the guardian for management.
• The amended S.215(1) (principal Act) provides that Letters of Administration with the
Will annexed may be granted to a guardian where the sole beneficiary is a minor.
(introduced under S.45 of the Amendment Act).
• S.29 (Amendment) inserts S.46A & S.46B in the principal Act. Under S.46A(1)(a), read
together with S.46A(2)(a); where a minor entitled to a share dies, the property which
was being managed on behalf of the minor vests in the surviving parent of the minor.

THE POSITION OF A SURVIVING PARENT UNDER THE AMENDMENT continued
CONCLUSION:
• A surviving parent of a lineal descendant who is a minor enjoys explicitly more
pronounced roles and rights under the amendment.
• Thus, surviving parents of lineal descendants who are minors may qualify to be
amongst the administrators of the estate; even if there is a surviving spouse.
• Since a lineal descendant who is a minor has potentially one of the biggest
interests in the estate (up to 20% for upkeep, in addition to an equal share with
other lineal descendants); & given the welfare principal under the Children Act,
(as amended); it is only proper that the interests of these minors should be
protected, where necessary, by their guardians being involved in
administration.
• NOTE: once everyone has taken their shares, Letters of Administration remain
valid only for purposes of the 20% set aside for minors, etc. It makes sense that
the guardian should be able to follow up the management of the trust created
in respect of this 20% of the property.

S.50, Amendment Act, concerning S.244 of the principal Act. Timelines for
applying for probate
• The petition for probate must be filed within one (1) year after death of the
testator. The new S. 244(1) & (2)
• Where the executor does not apply for probate within one (1) year after death of
the testator, a beneficiary under the will may apply for Letters of Administration,
with the will annexed. S.244(3)
• However, compare with Section 4(3)(d) of the Administrator General’s Act (Cap.
157) that states that if probate has not been obtained within two months from the
death of the testator, the Administrator General may apply for Letters of
Administration.
• Section 8 of the Administrator General’s Act provides that “Nothing in this Act shall
… preclude the Administrator General from applying for Letters of Administration
… within a period of one month from the death of the deceased.”
• It would seem that the Administrator General doesn’t need to wait for one year
from testator’s death before petitioning for Letters of Administration (with the will
annexed). After all, Section 36 of the Administrator General’s Act provides that:
“Nothing contained in the Succession Act shall be taken to supersede the rights,
duties, and privileges of the Administrator General under this Act.”

S.52 of the Succession (Amendment) Act. Replacement of S.255 of the principal Act
concerning Caveats against petitions for Probate/Letters of Administration
• The caveator shall, within 14 days of lodging the caveat, serve a copy of the caveat to the
petitioner – Section 255 (1)
• Once a caveat is lodged, the application is suspended until the caveat has been withdrawn,
lapsed, or a suit for its removal has been filed and determined by court – Section 255 (2)
• Petitioner must file a suit against the caveator within 6 months, for the caveator to show cause
why the caveat should not be removed – Section 255A (1).
• A caveator must file suit (within 6 months of lodging caveat) to prove the objections contained
in the caveat – Section 255A (2).
• Where neither caveator nor petitioner sues, the petition & the caveat shall lapse after 6 months
– S. 255A (3) read together with Sections 255A (1) & 255A (2)
• If caveat lapses, caveator shall not lodge another caveat concerning the same estate – S.255A (4)
NOTE: the Procedure, (before the amendment), providing for dismissal of a suit filed by
Petitioner against caveator without mandatory notice to the caveator, no longer holds.
Cases like Margret Kabahunguli V Eliazali Tibekinga & Another HCAC 08 of 1995 are no
longer good authorities

S. 57 (Amendment) Act. Replacement of S.268 of principal Act on Intermeddling
• To intermeddle is to take possession or dispose of the deceased’s property; or do any
other act which belongs to the office of executor or administrator without authority of
Letters or Probate; or when you have no authority from the Administrator General; or
an executor or administrator of the estate. (S. 268(1), (2), & (8)). See also S.11 of the
Administrator General’s Act as amended by the Administrator General’s (Amendment)
Act, 2022). The Administrator General or its agent may at any time before grant of
Letters or Probate take any action that is necessary for the preservation of the estate.
• A person may, before grant of Letters or probate, take possession of the estate to
preserve it;…; provide immediate necessities for deceased’s family; …for prudent
management of the deceased’s business; or receive money … belonging to the
deceased. (S. 268(3)).
• S.268(4). One can only take possession of deceased’s estate without authority for a
maximum of three (3) months.
• S.268(5). After taking possession, one must immediately report particulars of the
property and the steps taken to the Administrator General or his or her agent.
• PENALTY FOR INTERMEDDLING: a fine not exceeding one thousand currency points
or imprisonment not exceeding ten years, or both fine and prison term.

Section 72, Amendment Act; amendment of the Second Schedule relating to Rules as to
occupation of residential holdings
• Second Schedule now renumbered as Schedule 3 (S. 72(a))
• Persons entitled to occupy residential holdings formerly occupied by the intestate include:
I. Surviving spouse (S.72(b) , Amendment Act; relating to Schedule 3, Para. 1(1)(a),
principal Act)
II. Child aged below 18 (S.72(b), Amendment Act; relating to Schedule 3, Para. 1(1)(b),
principal Act)
III. Lineal descendant above 18, who is undertaking studies (S.72(b), Amendment Act;
relating to Schedule 3, Paragraph 1(1)(c), principal Act)
IV. Mentally or physically disabled lineal descendant who is incapable of maintaining
themselves (“until the cessation of disability, whichever comes first”). (S.72(b),
Amendment Act; relating to Schedule 3, Paragraph 1(1)(d), principal Act).
(all these persons must have been normally resident in the residential holding before
intestate’s death)
NOTE. S. 38(2)(a)(iii) in the principal Act (on maintenance of disabled lineal descendant),
which is provided for under S. 23(c) of the Amendment, ends with “…upon the cessation
of the disability or marriage of that lineal descendant, whichever occurs first”

Occupation of residential holdings continued: CESSATION OF THE RIGHT TO
OCCUPY
• Surviving spouse may occupy until remarriage, voluntary cessation,
misuse and or putting residence in disrepute. See S.72(c)(ii) of the
Amendment; providing for Paragraph 8(1)(a) in Schedule 3 to the principal
Act. “Putting residence in disrepute” is not defined.
• Lineal descendants occupy until they attain 18 years (unless disabled or
attending school) (See S. 72(c)(iii), of the Amendment; providing for Para.
8(1)(c) in Schedule 3 to the principal Act).
• Lineal descendant aged between 18 to 25 shall cease to occupy upon
marriage, ceasing studies, or attaining age of 25 (whichever occurs first).
(S.72(c)(iv) of the Amendment; providing for Para. 8(1)(ca) in Schedule 3 to
the principal Act).
• Mentally or physically disabled lineal descendant who was wholly
dependent on the deceased may occupy the residential holding FOR LIFE
EXCEPT where alternative accommodation, at the same station in life, is
provided. (S. 72(c)(v) relating to Para. 8(2) in Schedule 3, the principal Act).

Occupation of residential holdings continued: CESSATION OF THE RIGHT TO OCCUPY
• PROBLEM: Schedule 3 Para. 8(2) makes reference to Para. 1(1)(d); BUT there
is no requirement that a disabled lineal descendant should vacate upon
marriage. Yet it is obvious that in Para 1(1)(d) there is a missing phrase
between “until the cessation of disability...” and “…whichever comes first.”
• The phrase “or marriage of that lineal descendant,” was mistakenly omitted.
Compare with S. 38(2)(a)(iii), principal Act, which ends: “…until the cessation
of disability, or marriage of that lineal descendant, whichever comes first.”
• QUESTION: Residential holdings vest in the surviving spouse & lineal
descendants (S.13(a) & (b); and S.21(d), Amendment Act, relating to S.26(1),
26(2a), 26(2c), & S.36(8), principal Act). Has the law created an exception to
the general rule that you cannot eject a registered proprietor? Kampala
Bottlers vs. Damanico (U) Ltd. Supreme Court Civil Appeal No. 22of 1992.
• Elizabeth Wamala vs. Jolly Kasande & Ors, S.C.C.A 10/2015; Court cited (now)
Schedule 3 Rule 3 & allowed a former cohabitee (mother of minors) to stay in
a residential holding with her children because, as their natural guardian, she
was “responsible for their necessaries”. A cohabitee not being entitled to stay
therein as of right; her stay terminates when the last child is disqualified
according to the amendment (marriage, ceasing studies, or attaining age of 25)

Resealing grants issued outside Uganda: Probate (Resealing) (Amendment) Act, 2022
Section 2 of the Probate (Resealing) (Amendment) Act, 2022 is an amendment
to Section 2 of the Probate (Resealing) Act (Cap 160). It removes restrictions on
resealing of Letters of Administration/Probate issued from countries that are
not in the Commonwealth.
Section 3 of the Probate (Resealing) (Amendment) Act, 2022 is an amendment
to Section 3 of the principal Act and provides that for countries that are not in
the East African Community, resealing shall only be allowed:
• if those countries also recognize and allow enforcement of grants issued
in Uganda; and
• if the relevant law under which the grant was issued is not contrary to the
Succession Act; the Administration of Estates (Small Estates) (Special
Provisions); or the Estates of Missing Persons (Management) Act (Cap.
159).

Miscellaneous matters in the new legal regime
• Grants issued by Magistrates Courts beyond their pecuniary jurisdiction are
invalid under Section 2 (d) of the Administration of Estates (Small Estates)
(Special Provisions) (Amendment) Act, Act No. 5 of 2022
QUESTION: Should those who already used grants from Magistrates Courts to
obtain registration on titles worth hundreds of millions/billions of
shillings be required to obtain fresh grants from the High Court?).
• The Administrator General can distribute movable property including cash,
gratuity, vehicles, etc. of up to Shs. 15,000,000/- in value. No need for Letters of
Administration. (S.2(5), Administrator General’s (Amendment) Act, 2022)
• The Administrator General is empowered to take possession of an estate and
preserve it for up to six months after the death of the deceased. (S. 11 (4)
Administrator General’s (Amendment) Act, No. 7 of 2022.
The use of the phrase “the duration for which the Administrator General
may intermeddle in the estate…” is excusable drafting. It suggests the
Administrator General is committing or being allowed to commit an
offence, since “intermeddling” is a named offence.

Miscellaneous matters in the new legal regime continued
Repeated provisions
• S. 13 of the Succession (Amendment) Act amends Section 26 of the principal Act. S. 13(b)
introduces Section 26(2b) that provides thus:
A person who evicts or attempts to evict a surviving spouse, lineal descendant or
dependent relative who is entitled to occupy the residential holding or any other
residential holding commits an offence and is liable, on conviction, to a fine not
exceeding one hundred and sixty eight currency points or imprisonment not
exceeding seven years or both.
• This provision is repeated verbatim in the new Section 36(7) (principal Act) that is
introduced under Section 21(d) of the Amendment Act.
• Section 13(b) of the Succession (Amendment) Act also introduces Section 26(2c) in the
principal Act that provides thus:
Where the residential holding or any other residential holding devolves to the lineal
descendants under subsection (2a), the lineal descendants shall be deemed to be
entitled to the residential holding or any other residential holding as tenancy in
common.
• This provision is repeated nearly verbatim in the new Section 36(8) (principal Act) that is
introduced under Section 21(d) of the Amendment Act.
• Clearly, the new Sections 36(7) & 36(8) are superfluous and should be deleted from the law

• The Succession (Amendment) Act makes several references to the “Second
Schedule” ((See Sections 13(b) & 21(d)); yet the Second Schedule was
renumbered as Schedule 3 under S.67(c)(iv) read together with S.72 (a) thereof.
This ought to be corrected; but before that, implementers should note it.
• The phrase “…the residential holding or any other residential holding…”
appears in many provisions in the Amendment Act. See for instance:
• S.13(b) of the Amendment, concerning the new Section 26(2a), 26(2b), &
26(2c) of the principal Act; S.14 of the Amendment, concerning S.27(1) of the
principal Act; and S.21(d) of the Amendment – relating to the new S.36(7) &
36(8) of the principal Act.
• Unfortunately, the word ‘’principal’’ was mistakenly omitted, creating potential
for confusion. The correct phrase should be ‘’principal residential holding or any
other residential holding…” (cf. Sections 29, 36(6), and 279(2), principal Act;
respectively introduced under Sections 16, 21(d), & 62 of the Amendment Act)
• This ought to be corrected; but before that, implementers should note it.

What does the new S.55 (principal Act) mean? Amended under S. 32 (Amendment Act)
““55. Witness not disqualified by interest or by being executor
(l) A person shall not by reason of interest in, or by his or her being an executor
of a will be disqualified as a witness to prove the execution of a will or to
prove the validity or invalidity of a will.
(2) Except in the case of an advocate, subsection (1) shall not apply to a person
who participated in the writing or preparation of the will.””
• In my understanding, S.55 means that a person, who participated in the writing or
preparation of a will, is disqualified from being a witness to prove its execution or
validity where he/she has an interest in the will or is an executor named therein;
EXCEPT WHERE THAT PERSON IS AN ADVOCATE
• Thus, an advocate who has an interest in the will or is an executor named therein,
is a competent witness to prove the execution or validity of a will; even though
that advocate participated in the writing or preparation of the will.
• Is it because advocates are governed by professional codes of conduct and subject
to fiduciary duties, that an exception is made for them? I only hazard a guess.
Wintle v Nye [1959] 1 ALL ER 552 (House of Lords): “It is not the law that in no
circumstances can a solicitor or other person who has prepared the will for a
testator take a benefit under it. But that fact creates a suspicion that must be
removed by the person propounding the will. …, the court must be vigilant and
jealous. The degree of suspicion will vary with the circumstances of each case….””

• Gifts made in contemplation of death: A Person may dispose of any movable
property, by gift made in contemplation of death. (S.179(1))
• A gift is made in contemplation of death where a person who is ill and expects to
die shortly of his or her illness, delivers to another person the possession of any
movable property to keep as a gift in case the donor dies (S.179(2))
• The Act provides that the gift may be recovered at any time within six (6) months
from date of recovery.
• Gift valued beyond Shs. 500,000/= must be in writing
• One cannot attach the Bank Accounts of the Administrator General to recover
costs, damages, interest or related expenses of litigation. All such sums can only be
charged on the Consolidated Fund. S.18 of the Administrator General’s
(Amendment) Act, 2022; amending S.35 of the principal Act. See The Administrator
General v. Kakooza Umaru (M.A. No. 11/2017) High Court Execution Division

Biggest take-away from the new succession regime
• There are thousands of suits in the courts where administrators have sold estate
property, mismanaged, failed to account, or refused to distribute; and suits arising
from beneficiaries lodging caveats against petitions by intending administrators.
• By curtailing the administrator’s authority to dispose of property without the consent
of the beneficiaries, the law has in effect resolved most of those cases where the issue
is who should administer the estate. Many of these cases were filed under the old legal
regime and the Courts ought to re-asses them in light of the new amendments; since
any grant to be issued out of these proceedings must be issued under the new regime.
• Many who insist on administering alone, against the wishes of the majority of the
beneficiaries, do so for selfish reasons. Since an administrator can no longer sell
without the beneficiaries’ consent; there is less justification for one to insist on
administering alone.
• Administrator malfeasance, (and the litigation that comes with it), will also reduce given
that the penalties for mismanagement have been exponentially scaled-up.
Administrators require the consent of beneficiaries before expired grants are renewed
by court; thus an administrator who is not on good terms with the beneficiaries may
fail to get the grant renewed.
• In effect, the estate is now administered directly on behalf of the beneficiaries. IF AN
ADMINISTRATOR WISHES TO TRANSFER TO NON-BENEFICIARIES (e.g. purchasers), THE
BENEFICIARIES MUST CONSENT. The new administrator is simply an implementer of
the express wishes of the beneficiaries; or of the deceased (under testate succession).

Cohabitation, proprietary estoppel, & potential impact on succession law practice
1. Basheija Jane v Basheija Geoffrey & Anor (H.C. Divorce Cause No. 12 /2005) (Decision of 2013)
Couple first cohabited from 1977 and got married in 1998. Hon. Justice Billy
Kainamura held that property acquired by and registered in the sole names of the
man during cohabitation, (with the exception of the matrimonial home), was not up
for sharing. It remained his sole property.
2. Baryamureeba James vs Kabakonjo Abwooli H.C.C.S No. 20/2013 (decision of 2020)
Court treated a cohabiting couple as “a family”; opined they were “constructively
married”; and found that the suit land was “family land’’ under the Land Act.
Court held that Section 38A(1), (2), & (3) of the Land (Amendment) Act (which deals
with security of occupancy on family land) “… must be interpreted broadly to include
even those that are not married as per the laws governing marriages in Uganda.”
3. Hajji Musa Kigongo vs Olive Kigongo H.C.C.S 295 of 2015 (decision of 2017)
The Court relied on the concept of proprietary estoppel to hold that Ms. Olive Kigongo
was entitled to an equal share in their “matrimonial home”’. Court also rationalised
that even though they were not married, “they held out as (married) and lived as
such …. They shared the suit property as their “matrimonial home”’…. and it didn’t
matter whether she made any financial contributions….as long as she lived on the
assurance of the plaintiff that she was his wife and that she had security of tenure.
Continued on next slide

Cohabitation, proprietary estoppel, and their effect on succession law continued
• QUESTION: what if the cohabitees as the ones in Baryamureeba v Kabakonjo &
Kigongo v Kigongo brought their claim against the estate of their partners?
• Succession law practice in Uganda has been such that in the absence of a gift inter
vivos or of a bequest under a will, cohabitees had no share in the estate. In my
opinion, the decisions in Baryamureeba v Kabakonjo & Kigongo v Kigongo may have
opened a door to cohabitees to claim an interest in the estate.
EXAMPLES FROM THE U.K.
• Burns v Burns [1984] Ch 317 (Court of Appeal). The judges sympathised with the
cohabiting woman because “…. she lived with him for 18 years as man and wife,
and, at the end of it, has no rights against him. But the unfairness of that is not a
matter which the courts can control. It is a matter for Parliament.” (per Fox, Lord
Justice). When one compared her situation to the prevailing position had she been
married, “…she can justifiably say that fate has not been kind to her.’’ HOWEVER,
‘’the remedy for any inequity she may have sustained is a matter for Parliament
and not for this court.” (per May, Lord Justice)
continued on next slide

Cohabitation, proprietary estoppel, and their effect on succession law continued
• Burns v Burns [1984] Ch 317 (Court of Appeal) (continued)
When the house is in the man’s name alone, if the woman makes no ‘real’ or ‘substantial’
financial contribution towards either the purchase price, deposit or mortgage instalments by
the means of which the family home was acquired; then she is not entitled to any share in the
beneficial interest in that home, even though over a very substantial number of years she may
have worked just as hard as the man in maintaining the family in the sense of keeping the
house, giving birth to & … helping to bring up the children of the union. May LJ, at 345
• Breen v Williams (1996) 186 CLR 71, [46]-[47] (High Court of Australia)
Judges have no authority to invent legal doctrine that distorts or does not extend or modify
accepted legal rules and principles. Any changes in legal doctrine, brought about by judicial
creativity, must ‘fit’ within the body of accepted rules and principles …It is a serious
constitutional mistake to think that the common law courts have authority to ‘provide a
solvent’ for every social, political or economic problem. Gaudron McHugh JJ
• Guest & Anor vs Guest[20222] UKSC, 27 (19.10.2022)
The purpose of Proprietary estoppel as an “equitable remedy is to restrain,…or “estop’’ the
promisor from reneging on the promise. The Court may require the promise to be performed
by the promisor or, if he has died…, by or at the cost of his estate. It may in limited
circumstances affect successors in title of the promisor to the relevant property.” Lord Briggs.
In cohabitation and proprietary estoppel cases Courts should avoid making decisions that force
parties to continue cohabiting when their relationship has broken down. Courts should ensure
parties have a “clean break” (for instance by ordering financial payments in lieu of specific
performance, where parties cannot live or work together). Guest & Anor vs Guest (supra)

Moving forward: Sensitization and networking
• Sensitization of judicial officers, advocates, Registrars of Title, the police;
and other institutions that handle estates matters (by judiciary, ULS, &
Administrator General)
• Sensitizing members of the public (by judiciary, ULS, & Administrator
General)
• Sensitizing persons who hold Letters of Administration issued before the
amendment (by judiciary)
• Sensitizing applicants for Letters of Administration/Probate during the
process of obtaining the Certificate of No Objection/Grant of
Administration/Executorship (by judiciary & Administrator General).
• Need for engagement involving the Attorney General, ULS, Judiciary,
Office of Titles, & the Administrator General to sort out some of the
“teething issues” that have cropped up and led to differences of opinions -
even amongst judicial officers - (for instance as to the vetting of surviving
spouses and the Office of Titles requiring inventories, among other
issues).

Succession Law Amendment Presentation Colored.pptx

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