New law moots 7 year prison sentence for evicting spouse, lineal descendant

Kampala, Uganda | THE INDEPENDENT | Persons who evict or attempt to evict surviving spouses, lineal or dependent relatives entitled to occupy residential holding will be imprisoned for 7 years or fined 3.3 million Shillings.

This is under the Succession (Amendment) Bill, 2021 that was passed by Parliament on Tuesday afternoon during a plenary sitting chaired by Deputy Speaker Anita Among. This followed a presentation of a report on the Bill by Robina Rwakoojo, the Chairperson of the Legal and Parliamentary Affairs Committee.

According to the new piece of legislation, 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 to a fine not exceeding one hundred and sixty eight currency points, which is equivalent to 3.36 million Shillings or imprisonment not exceeding seven years or both.

The objective of the Succession (Amendment) Bill, 2021, is to align the Succession Act with Article 32 of the Constitution that provides for affirmative action in favour of marginalized groups and Article 33 that provides for rights of women. The Bill also provides for the requirement of the consent of spouses and lineal descendants prior to disposal of estate property by administrators and also provides for joint administration of executors and administrators of estates.

It also provides for the distribution of estates of intestate deceased persons in accordance with Article 33 of the constitution, guardianship of minor children of deceased persons and provide for discretion of courts in the grant of probate and letters of administration.

Intestate is a person who dies without making a valid will disposing of his or her property. Intestacy can be either total or partial. Intestacy is said to be total where the deceased does not effectively dispose of any beneficial interest in any of his property by a will while a partial intestacy exists where the deceased effectively disposes of some, but not all of the beneficial interest in his or her property by a will.

Distribution of property of an intestate

Now, the approved piece of legislation expands the provision of distribution of property of an intestate to apply to both male and female intestates as well as to spouses in a marriage. This is an amendment to Section 27 of the Succession Act.

Parliament approved that 20 percent of the estate of an intestate shall not be distributed but reserved to be held in trust for the education, maintenance and welfare of the minor children, children above 18 years of age but below 25 years of age, if at the time of the death of the intestate, these children were undertaking studies and were not married.

Also considered are children with disabilities who are above 18 years of age, if at the time of the death of the intestate, these children were not married and were wholly dependent on the intestate for their livelihood.

The House increased the entitlement of the surviving spouse in case the deceased is survived by a spouse, lineal descendants and customary heir from 15 percent to 20 percent and reducing the entitlement of dependent relatives from 9 percent to 4 percent.

“Where the intestate is survived by a spouse, a lineal descendant, a dependent relative and a customary heir; the spouse shall receive 20 percent, the dependent relatives shall receive 4 percent, the lineal descendants shall receive 75 percent; and the customary heir shall receive 1 percent; of the whole of the property of the intestate,’ Parliament provided.

Where the intestate is survived by a spouse, a dependent relative and a customary heir but no lineal descendant, Parliament provided that the spouse shall receive 50 percent, the dependent relative shall receive 49 percent and the customary heir shall receive 1 percent of the whole of the property of the intestate.

In circumstances that the intestate is survived by a spouse or a dependent relative but no lineal descendant, the spouse or the dependent relative, as the case may be, shall receive 100 percent, of the whole of the property of the intestate.

“Where the intestate leaves no person surviving him or her, capable of taking a proportion of his or her property, the estate shall be divided equally between the relatives nearest in kinship to the intestate; and where the intestate leaves no person surviving him or her, capable of taking a proportion of his or her property, the whole of their property shall be managed by the Administrator General in accordance with the Administrator General’s Act,” further provides the new piece of legislation.

Rwakoojo says that notwithstanding these provisions, 20 percent of the estate shall not be distributed, but shall be held in trust for the education, maintenance and welfare of the different categories of lineal descendants until they cease to qualify.

Also a surviving spouse who remarries before the estate of a deceased person is distributed is entitled to share in the estate of his or her deceased husband or wife, respectively. The parents of a deceased person, when available, are given priority when distributing the estate to dependent relatives and customary heir.

Also approved is that either parent of a minor may, by will, appoint a guardian for the minor. The Bill also lists persons who qualify to be guardians as a surviving parent, except where there is a court order to the contrary, a person appointed as such by the surviving parent where the surviving parent is not willing or able to act as the guardian and a person appointed jointly by the brothers and sisters of both the deceased and the surviving parent.

President Yoweri Museveni returned the Bill to Parliament last year for reconsideration contesting a parliament position concerning an intestate survived by the spouse and a dependent relative but no lineage dependents. Parliament had then provided that a spouse shall receive 80 per cent and the dependent relative shall receive 20 per cent of the whole property of an intestate.

The President also criticized a clause that sought to provide that the surviving spouse of the intestate shall not take any interest in the estate of an intestate if the marriage between the surviving spouse or the intestate was suspended either by agreement or judicial officer.

He proposed that this clause is deleted because it is ambiguous, also arguing that where marriage is suspended by judicial order, the court would have to make a provision for sharing the property between the parties and that such an order would still suffice in the event of the death of one of the parties.

According to the President, there is no need for parliament to provide for sharing of the property where a judicial order has already been issued.

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