The New Succession Act and Women

If you have been following the law in Uganda recently, you will notice that many of our laws have been subject to amendments and the Succession Act Cap 162 is not an exception.

Losing a spouse is devastating, however discovering that you may not be entitled to an inheritance based on your sex is double the trouble. The term ‘man’ may be used to mean both man and woman in some places but under the law, this has been subject to interpretation. As we discuss the law of succession, it would be unfair not to discuss the rights women have under the law concerning the property.

Originally, a woman only had rights as far as being a wife, however,  the case of Women in Uganda v. Attorney General ruled that several of the provisions in the Succession Act Cap.162  were unconstitutional as far as they discriminated based on sex and did not accord equal treatment in the division of property between male and female. The current Succession (Amendment) Act seeks to accord equal rights between men and women and bring the Act in conformity with the Constitution.

The new legislation now says a woman, whether divorced, has a claim to the estate, especially on things achieved while the marriage subsisted.

Parliament of Uganda

Grounds for amendments (Sections of the Act that required Amendments.)

To tackle this query, we must look into Sections 2(n)(i) and (ii)of the Succession Act, which defined a ‘legal heir,’ as a male heir and neglected to mention a female one. This insinuated that only a man possesses the right to own property and yet the Constitution of Uganda under Article 26 gives rights to all citizens to own property. What would happen if the deceased only had female children or descendants?

The provisions of sections 14 and 15 provided only for the domicile of a wife during marriage to take the husband’s domicile and there was no provision for a husband to take the wife’s domicile. Domicile is the country a person treats as their permanent home or lives in. Therefore it was required that a wife by default would live where her husband was living.

Sections 26 and 29 of the Act and Rules 1, 7, 8, and 9 Schedule to the Act provided for occupancy of the matrimonial home. Under these sections, a woman ceased to occupy the principal residential property if she remarried but was silent on the same for men who remarried. 

The distribution of the property of intestate deceased persons was provided for Section 27 of the Act, which had no provision for when a female died intestate.

Under sections 43 and 44 of the Act, which provided for the appointment of the testamentary guardian, it was only a father who, by will, could appoint a guardian or guardians for his child during minority and there was no provision for a mother.

Amendments made in this regard:

Gender-neutral language: 

The previous Act used discriminatory words like “a married woman or woman.” The Succession (Amendment) Act changes these words to the spouse and “man” to “person. It inserts immediately after the word “his” the word “or her”, “father” the word “or mother”, “son” the words “or daughter.” This makes every provision gender neutral allowing both women and men to be catered for under the act.

Distribution of Property: 

The Act revises percentages for the distribution of an estate. Where an intestate is survived by a spouse, a lineal descendant, a dependent relative and a customary heir, they are now entitled to 20%of the property while reducing that of dependant relatives from 9% to 4%. In instances where there are no dependant relatives or children then a surviving spouse is entitled to 99% of the deceased property. This honours a spouse’s right to own property after the death of their loved one. This allows for fair distribution of property in instances that a person dies intestate. 

Residential Holdings: 

A spouse is entitled to the family home whether a will exists or not. A family home is not part of the property that is to be distributed and it is an offence to chase the surviving spouse from their family home. The residential holding of a deceased person shall devolve equally to the surviving spouse and lineal descendants who were normally residents and any person who evicts or attempts to evict them commits an offence and is liable to a penalty. The descendants shall be deemed to hold the property as joint tenants. This repeals the provision in the previous Act that allowed a female surviving spouse to lose her marital home upon the likelihood of her remarrying.

Domicile: 

The Acts introduce domicile of choice where a person may upon marriage, acquire the domicile of his or her wife and upon dissolution of marriage, a spouse may acquire any other domicile. In addition, the Bill repeals the provision that provides a woman’s domicile following her husband.

Maintenance: 

The Act extends maintenance to spouses, children, lineal descendants and dependants who can apply to the court for maintenance if they are left out in the will.

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