QUESTION 3

With reference to relevant statutes , laws and case laws. Discuss the law
governing intestate succession in Uganda today?
Intestate succession is where a person dies without making a will or any
arrangement for the distribution of his/her property among his/her family
members. Where a person makes a will which is valid and leaves out
some property then such a person is said to have died partially intestate
of that property not included in a valid will. In Uganda intestate succession
is governed by statutory laws, constitutional principles such as precedents
and customary laws where applicable and not inconsistent with the
written laws or natural justice and principles of equity.
Under section 20 of the succession act states that a person dies intestate
in respect of all property which has not been disposed of by valid
testamentary disposition and the effect of this provision is that the
testators intention must be respected however such intentions must be in
line with the laws relating to wills as it was emphasized in the case of
Kolya v Kolya 1in this case the deceased is said to have died an intestate
then before the administration of his estate there is a condition of first
obtaining letters of administration under section 187 which states that
except as provided in this section , but subject to section 4 of the
Administrator General’s Act, no right to any part of the property of a
person who has died intestate shall be established in any court of justice ,
unless letters of administration have first been granted by a court of
competent jurisdiction.
When one dies intestate , the property has to dissolve to the descendants
of the deceased and it must be distributed with equality and free from any
discrimination of any for example sex. The constitution of the republic of
Uganda under Article 21 emphasizes equality and freedom from
discrimination hence this shows that people are equal before and under
the law hence this being right to assert that any law to succession that
discriminates basing on sex and gender may be challenged as
unconstitutional. Also, under Article 31 of the same constitution which
guarantees the fundamental rights of the family , it guarantees freedom
equality of rights in marriage and at dissolution which extends to inherent
rights of the serving spouses. Article 33 also protects women from laws
and customs that undermines or devalues their dignity therefore
customary succession practices disadvantaging widows are invalid
because they are inconsistent with the constitution.
In Uganda Women lawyers Association v Attorney general 2in this
case, it successfully challenged multiple discriminatory provisions in the
Divorce Act declaring them unconstitutional and striking down gender

1
Kolya v kolya
2
Constitutional petition No.2 of 2003
balance. Also, in the case of kajubi v kabali 3, the court of appeal
addressed the customary laws regarding the rights of children born out of
marriages ( illegitimate) and court ruled that children born out of
marriages have legitimate inheritance rights to their deceased father’s
property under customary laws and the ratio decendendi was that
discrimination against children born outside marriage would be
detrimental to a large segment of the community and contrary to natural
justice.
Also, in the case of Komugisha v Mable Komuntale 4, in this case the
high court established that a customary rule that deprives a widow of
rights granted under the constitution is void and repugnant to natural
justice, equity and good conscience.
However as discussed above , when a deceased dies intestate, there has
to be an application for grant of letters of administration of the deceased
property from a court of competent jurisdiction under section 187 of the
succession act and the effect of the letters of administration is that it
entitles the administrator of admnistratix to all rights belonging to the
intestate as effectively as if the administration has been granted at the
moment after his /her death.
The succession act provides under section 186 sates the person to
whom the letters of administration shall be granted (i) letters of
administration shall not be granted to a person who is a minor or who has
mental illness and court shall have discretion to determine whether a
person who is otherwise qualified to administer the estate under this act is
fit and proper to do so and the court may defer the appointment of an
administrator or admnistratix to a later date or refuse to grant letters of
administration where an applicant is not suitable.
The literal interpretation of the above statement is that for as long as a
person is of 18years and above and of sound mind then he can be granted
letters of administration without any consideration or any ground of
discrimination as it was held in the case of Law Advocacy for
customers in Uganda v AG 5, the above petition discourages
discrimination on sex status or anything as contrary to natural justice.
In the case of Lucky Monica Akulo v Michael Kilega 6, lucky was a
widow of the deceased and she filed an application for grant of letter of
administration to the deceased estate which was challenged by her
mother-in-law for that she was a young lady capable of remaining and
that she had no love for the step children left by the deceased husband.
Court held in favor of the spouse takes priority in the administration of the

3
( 1944) EACA 34
4
( 1999) KALR 813
5
Constitutional petition No.13 of 2005 and of 2006
6
(1991) UGHC 72
estate according to section 199 of the succession act as amended and
198 on
Distribution of estate on intestate arrangements with reference to section
23 of the succession act which states that subject to section 25 and 26
the estate of an intestate, except for his/her principal residential holding
or other residential holding, shall be divided among the following classes
in the following manner, where an intestate is survived by a spouse the
lineal descendants, dependent relatives and customary heir or heiress
receive part where the spouse receives 20%, dependent relatives receive
4%, lineal descendants 5%, and customary heir 1%of the whole property
of the intestate , and where he leaves no surviving spouse or dependent
relatives then the lineal descendants shall receive 99% and customary
heir shall receive 1% of the whole property of the intestate. And where
there are no lineal descendants then the spouse shall receive 50%,
dependent relative 49% and the customary heir 1%of the intestate
property , where the intestate is survived by a spouse or dependent
relatives but no lineal descendant , the customary heir will take 1% and
the spouse of lineal descendant takes 99%, incase he leaves no surviving
him or her other than the customary heir then the property will be divided
equally among the relatives nearest in kinship to the intestate. Not
withstanding subsection 1, 20% of the estate shall not be distributed, but
shall be held in trust for the education , maintenance and welfare of the
following categories of lineal descendants until they cease to qualify as
such, where a minor child attains 18 years of age he or she ceases to
qualify under paragraph (b) or (c) , lineal descendants of the deceased
who is above 18 years but below 25 years at the time of the death of the
intestate was undertaking studies and was not married, has advisability
if , at time of death of the intestate was not married and wholly dependent
on the intestate for his or her livelihood. Where estate produces income
by periodical payments, the percentage from subsection 2 will be derived
from it. And for avoidance the percentage in subsection 2 shall be
deducted from the gross estate before the distribution of the estate under
subsection 1, lumpsum settlement may be made for maintenance welfare
of lineal descendant who has a disability, a spouse who remarries before
the estate of the deceased shall be entitled to the share, where a lineal
descendant is the customary heir then he will still be entitled to both the
shares.