Kampala

Succession and Application for Administration of Estates in Uganda

The law of succession is concerned with the devolution of a personís estate
on death.  This law is governed by the Succession Act Cap 139 as amended by
The Succession (Amendment) Decree 1972 and the Administrator Generalís Act
Cap 140.

In Uganda, the distribution of the Estate of the deceased is determined by
the terms of the deceasedís Will, if any.  If the disposal of a deceasedís
estate is not determined by his Will, whether because there is no Will or
the Will does not dispose of his entire estate, distribution thereof is governed by the inflexible rules relating to intestacy.

Intestate Succession

A person is said to have died intestate when he leaves no valid Will
disposing of his estate/property.  A person dies intestate in respect of all
property which has not been disposed of by a valid testamentary disposition.
All property in an intestate estate devolves upon the personal representative of the deceased upon trust for those persons entitled to such property.

Distribution of an Intestateís Property

The residential holding normally occupied by the deceased prior to his death
as his principal residence or owned by him as a principal residential
holding, including the household chattels therein, shall be held by his
personal representative upon trust for his legal heir subject to the rules
relating to the occupation of residential holding.

The above rules provide for persons entitled to occupation of such
residential holding as;

A husband/wife as the case may be;
-        Any children under eighteen years of age if male, or under
         twenty-one years of age and unmarried if female, who were
         normally resident in such residential holding.

In the case of any other residential holding owned by the intestate, any wife, or children, under eighteen years of age, if male, or under twenty-one
years of age and unmarried if female who were normally resident in the
residential holding shall be entitled to occupy the same.

Any wife, husband or child who normally cultivated, farmed or tilled any
land adjoining a residential holding owed by an intestate prior to his
death, shall have the right to continue to do so as long as he continues to
be resident.  Subject to the provisions of Sections 30 & 31 of the
succession Act, the estate of a person dying intestate, with the exception
of his principal residential holding, shall be divided among the following
classes in the following manner:

a.      When the intestate is survived by a customary heir, a wife, a lineal
         descendant and a dependant relative;
i)      the customary heir shall receive 1%
ii)     the wives shall receive 15%
iii)    the dependant relative shall receive 9%
iv)    the lineal descendants shall receive 75% of the whole of the
         property of the Provided that where the intestate leaves no person surviving
         him capable of taking a proportion of his property under subparagraph ii) and
         iii) such proportion shall go to the lineal descendants;

b.      where the intestate is survived by a customary heir, a wife and a
         dependent relative,   but no lineal descendant;
i)      the customary heir shall receive 1%
ii)     the wife shall receive 50% and
iii)    the dependant relative shall receive 49% of the whole of the
         property of the intestate.

c.      where the intestate is survived by a customary heir, a wife or a
         dependent relative, but no lineal descendant;
i)      the customary heir shall receive 1% and
ii)     the wife or the dependent relative as the case may be shall receive
         99% of the whole of the property of the intestate.

d.      where the intestate leaves no person surviving him other than a
          customary heir,  capable of taking a proportion of his property under
         paragraph (a), (b) or (c) above,  the estate intestate shall be divided equally
         between those relatives in the nearest degree of kinship to the intestate.

e.      if no person takes any proportion of the property of the intestate
         under paragraphs  (a), (b), (c) or (d) above, the whole of the
         property shall belong to the customary heir;

f.       where there is no customary heir of an intestate, the customary
         heir's share shall belong to the legal heir.

NB:     Nothing contained herein above shall prevent the customary heir from
taking a further share in the capacity of a lineal descendant if entitled
thereto in such capacity.

A Customary heir means the person recognised by the rites and customs of the
tribe or community of a deceased person as being the customary heir of that
person.

Dependent relative includes;

a.      a wife, a husband, a son of daughter under 18 years of age who is
         wholly or  substantially dependent on the deceased;
b.      a parent, a brother or sister, a grandparent or grandchild who, on
         the date of the  deceased's death was wholly or substantially
         dependent on the deceased for the provision of the ordinary necessities
        of life suitable to a person of his station.

Section 30 of the Succession Act reserves the principal residential holding
of an intestate from distribution.  Section 31(i) of the Succession Act is
to the effect that a spouse of an intestate shall not take any interest in
the estate of an intestate, if at the death of the intestate he/she was
separated from the intestate, a member of the same household.
The exception to the above is if such wife or husband has been sent on an
approved course of study in an educational institution.

On application by or on behalf of such husband or wife, whether during the
life or within 6 months after the death of the other party to the marriage,
court may declare that the provisions of subsection (i) shall not apply to such applicant.

Testate Succession

A person is said to have died testate when he leaves a valid Will disposing
of all his property.
A Will is a legal declaration of the intentions of the testator with respect
to his property, which he desires to be carried into effect after his death.
A Will takes effect only after the death of the testator.  Therefore, until
death, the beneficiaries and executors thereto have no interest whatsoever
in the testator's property and they do not acquire any interest until after
the testator's death.  Section 46 of the Succession Act provides the
persons capable of making Wills;

-       a person of sound mind and not a minor
-       a married woman may by Will dispose of any property which she could
        alienate by her own act during her life.
-       a person who is deaf or dumb or blind, if he is able to know what he
        does by it.
-       a person ordinarily insane may make a Will during an interval in
        which he is of sound    mind.

No person can make a Will, while he is in such a state of mind whether
arising from drunkenness, or from illness, or from any other cause that he
does not know what he is doing.

For a Will to be valid, it shall be attested by 2 or more witnesses each of
whom must have seen the testator sign/affix his mark to the Will, or have
seen some other person sign the Will in the presence and by the direction of
the testator or have received from the testator a personal acknowledgment
of his signature/mark or of the signature of such other person and each of
the witnesses must sign the Will in the presence of the testator.
The only exceptions to the above provision are members of the armed forces
employed in an expedition or engaged in actual warfare, or a mariner at sea.

Application for grant of Probate and Letters of Administration

Grant of Probate and Letters of Administration are orders of the court which
confirm/confer the authority of the personal representative to administer
the estate of the deceased and which indicated the terms on which the estate
is to be administered.  Section 179 of the Succession Act provides that the
executor or administrator as the case may be, of a deceased person is his legal
representative for all purposes, and all the property of the deceased person vests in him as such.

In general terms, an executor, is a person appointed by the Will to
administer the estate of the deceased.  Where the deceased dies intestate,
without leaving a Will which disposes of his property or where he leaves a
Will without appointing executors, the person who administers the estate is
known as the administrator.  Under Section 272 Succession Act, an
administrator or executor has power to dispose of the property of the
deceased either wholly or in part, or in such manner as he may think fit.

Where an executor is appointed by the Will and subsequently takes out
Probate, his authority dates from the death of the testator, so that in his
case, the grant of Probate confirms his authority.  In the other cases, the
personal representative has no authority prior to the grant, and derives his
authority from the grant itself.

Probate can only be granted to an executor appointed by the Will and shall
not be granted to any person who is a minor or is of unsound mind.

When several executors are appointed, Probate may be granted to them all
simultaneously or at different times.  If a codicil is discovered after the
grant of Probate, a separate Probate of that codicil may be granted to the
executor, if it no way revokes the appointment of executors made by the
Will.
NB.     Provided that if different executors are appointed by the codicil,
the Probate of the Will shall be revoked and a new Probate granted of the
Will and the codicil together.

Letters of Administration shall be granted to any person who is a minor or
is of unsound mind.

Letters of Administration entitle the administrator to all rights belonging
to the intestate as effectual as if the administration has been granted at
the moment after his death.

The jurisdiction to grant Probate and Letters of Administration, shall be
exercised by the High Court and Magistrate's Court in accordance with the
provisions of the Administration of Estates (Small Estates) (Special
Provisions) Decree 13/72

An application for Letters of Administration shall be made by petition in
English stating;
a)       time and place of deceased's death,
b)      family or other relative of the deceased and their respective
          residences,
c)       the right in which the petitioner claims
d)      that the deceased left some property within the jurisdiction of the
          High Court/district delegate to whom the application is made; and
e)      the amount of assets which are likely to come to the petitioner's
          hands.

When the application is to a district delegate, the petition shall further
state whether the deceased at the time of his death, resided within the
jurisdiction of such delegate.  An application for Probate shall be made by
a petition in English stating;
a.      time of the testator's death
b.      that the writing annexed is his last Will and testament and that it
         was duly executed
c.      the amount of assets which are likely to come into the petitioner's
         hands
d.     that the petitioner is the executor named in the Will.

If the Will is written in any other language other than English, a transaction
thereof shall be annexed to the petition.  Notice of the application for
grant of Probate/Letters of Administration is to be made.  This notice gives
14 days from the date of application for anyone with a claim or grievance to
lodge a caveat.

This is followed by identification of the petitioner.  This is done by the
Registrar in case of High Court and by a Magistrate in case of Magistrate's
Court.

If satisfied, Letters of administration/probate will be granted by court.
Below are the necessary documents;

Re-sealing of grant of probate or Letters of Admininstration in Uganda

1. Introduction

The Probates (Resealing) Act, 1936, Chapter 144, Laws of Uganda, provides
that where a court of probate (defined to mean any court or authority, by
whatever name designated, having jurisdiction in matters of probate)  in any
part of the Commonwealth, or a British court in a foreign country, has
granted probate or Letters of Administration in respect of the estate of a
deceased person, the probate or letters so granted may, on being produced
to, and a copy thereof deposited with, the High Court of Uganda be sealed
with the seal of that court, and thereupon shall be of the like force and
effect, and have the same operation in Uganda as if granted by that
court.The Commonwealth includes any dependent country of the Commonwealth
and any dependency of such country and the Republic of Ireland.

2. Procedure

The application for the sealing of a grant of probate or letter of
administration may be made by the person to whom the grant was made or the
attorney of such person. Under the Probates (Resealing) Rules, the
application shall be made by lodging with Registrar of the High Court at
Kampala the grant required to be sealed, including a copy of the Will to
which the grant relates or a copy thereof certified as correct by or under
the authority of the court which made the grant, a copy of the said grant
and of the Will, if any; a certificate of the Will, if any; a certificate as
to payment of probate duty; in the case of letters of administration; a bond
(security in a sum sufficient in amount to cover the property; if any, in
Uganda, to which the letters of administration relate if the applicant is
acting under a power of attorney, the instrument creating the power and, if
the applicant requires the instrument to be returned with the grant a copy
of such instrument.

3. Usually, the Registrar requires that the application shall be advertised
in a nationally circulating newspaper or the Uganda Gazette giving fourteen
days notice of intention to reseal the grant of probate or letters of administration in respect of the deceasedís estate.  On the application of any creditor, the High court may also, if it thinks fit, require that adequate security be given for the payment of debts due from the estate to creditors residing in Uganda.

Upon sealing the grant, it shall be of the like force and effect, and have
the same operation in Uganda as if granted by the High Court of Uganda at Kampala.

Grant of Probate & Lettes of Administration to Trust Corporations in Uganda

The Trust Corporations (Probate and Administration) Act, 1959, Chapter 143,
Laws of Uganda, provides that a body corporate which is authorised by it^Òs
Memorandum and Articles of Association or the instrument constituting it or
defining its powers to act as executor of the Will or administrator of the
estate of a deceased person or as trustee of a settlement whether created by
Will or otherwise, the High Court of Uganda may grant probate to a trust
corporation, either solely or jointly with another person where they are
will as executor; and where there is no Will, the High Court may grant
letters of administration to a trust corporation, solely or jointly with
another person.

Procedure

The provisions of the Succession Act Chapter 139 Laws of Uganda, relating to
the practice and procedure to be followed in applications for and grants of
probate and letters of administration shall apply to applications for and
grants of probate and letters of administration by and to trust
corporations.