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NEWPORT INTERNATIONAL JOURNAL OF CURRENT
RESEARCH IN HUMANITIES AND SOCIAL SCIENCES
(NIJCRHSS)
Volume 4 Issue 3 2024
https://doi.org/10.59298/NIJCRHSS/2024/4.3.9498
Page | 94
A Critical Assessment of the Effectiveness of Law of
Intestate Succession in Masaka District of Uganda
Nassanga Yvonne
School of Law Kampala International University, Uganda

ABSTRACT
This study critically assessed the law of intestate succession in Masaka district of Uganda, with the aim of
inspiring Ugandan authorities to create a special legal structure to govern the law of intestate succession. The
study secondarily sourced its data from textbooks, journals, online blogs and statutory books. At the end, calls for
the law to specify the maximum number of executors for a given portion of the deceased's assets. Additionally, the
legislative revision should empower the High Court to replace an incompetent executor with an administrator.
Retraction of a probate renunciation for particular circumstances should be considered in the legislative
amendment. The legislation should be amended to allow rapid remedy if a beneficiary or other interested party
proves the grantee breached duty, was fraudulent, or inefficient in estate management. The legislative modification
should shield the estate from distribution before letters of administration and probate. Amendments to the statute
should expand the avenues for grant revocation, such as application by an interested party and Administrator
General Intervention. The government and civil society should develop initiatives to strengthen the
administrative system for managing the estates of deceased individuals. Finally, law penalties should be modified
to reflect contemporary socio-economic situations and reflect a punitive posture.
Keywords: Assessment, Intestate, Succession law, Testate, Will.

INTRODUCTION
Intestacy law is often refers to the law that governs who inherits estate property. A deceased person's property is
distributed intestably without a will. This distribution could be total or partial [1]. However after the
constitutional court's ruling in Law and Advocacy for Women in Uganda v. Attomey General [2], Uganda's
intestacy law was nullified, leaving a gap in the law. Since it only mentioned distribution on the death of a male
intestate, the provision was challenged as sexist that violated the constitutional guarantee of gender equality.
Most communities in Uganda have clans, family powers, and value systems that promote male dominance. Thus,
most ethnic groups' patriarchal nature determines property ownership patterns and rights because the family is
structurally and functionally male-dominated. This governs male inheritance. In Masaka, patricentric land tenure
arrangements hinder children and women's land rights assertion in a public for which men are primary players
with little sympathy for women [3]. Although Uganda's succession laws apply to all residents and the Registrar
and Administrator General are expected to be notified of all deaths, they are commonly ignored. Customary and
religious leaders' rulings, albeit not legally obligatory, are accepted by heirs who are unaware of their rights under
uniform succession law. Many Ugandans avoid writing wills because they think it will lead to death [4]. This
superstitious fear of writing a will hinder execution of the estate law or instrument. An intestate's estate is
distributed by clan leaders, religious leaders, or relatives [5]. Tripp [6] argues that many Ugandans usually
favour custom over beneficiary rights. Many cultural and religious authorities who handle inheritance concerns
are unaware of the succession legislation and its provisions. Thus, inheritance disputes are often settled on an ad
hoc basis or according to customary laws, which constitute the tribe's traditional law and require property to be
passed down through the male line. And relatives usually hide under the customary law provisions to take over
widow's home and land.
Customary visa vis statutory laws
African customary law on marriage and succession has continued to play a central role alongside statutory law,
thanks to the 1906 succession ordinance and legal Notice cap 34, which exempted all natives of the protectorate
from its effects. The Judicature Act allows existing customs that are not adverse to natural justice, equity, or good
conscience to be applied. Such practices should not be conflicting with any written legislation. The 1995 Ugandan
constitution outlaws laws, cultures, rituals, and traditions that violate women's dignity, welfare, or interests [7].
While Ugandan law sets standards for customary law, available literature suggests that cultural and customary
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practices that are against the dignity, welfare, and interests of women and other marginalised groups like children,
as well as discriminatory, continue to be practiced when handling succession matters in different ethnic groups. In
Uganda, property goes from the father to the eldest son or the Buganda customary heir upon the death of an
intestate. The groom and his family give the bridegroom's family agricultural implements, livestock, or goats to
celebrate customary marriage in Uganda. Many husbands believe that after paying the bridal price, their wives are
theirs. To satisfy their interests, some males claim to own their wives and their labour. Dissolution or death leaves
the wife without any share of the riches she accumulated with the husband. The widow and her children, in severe Page | 95
situations, are often disinherited by the deceased man's kin, which is contrary to the provisions of the law [8].
Majority of the Ugandan men found it difficult to leave lands to their daughters and wives because they believe
their daughters and wives will transfer such lands to other tribes upon marriage or remarriage. In some Ugandan
societies, the husbands’ brothers or families inherit the wives and children of the deceased husbands. Thus, in
Ugandan customary law, a woman may have bought land with her husband and spent her adult life cultivating it,
but she cannot claim ownership [9]. If the husband dies, the land usually goes to sons but sometimes to daughters.
However, the husband may leave the wife without land and no income. Uganda's most valuable resource is land,
which people use for agriculture and subsistence. Land inequality is one of the biggest economic disparities
between men and women in Uganda and around the world, and it has serious ramifications for women as social
and political actors. Women in Uganda perform 70–80% of agricultural and 90% of food production labour.
Legal pluralism
Cultural, customary, and religious norms impact women and men's legal and social succession on death. Walsh
[10] observes that a complex mix of cultural, legal, and social factors underlies women's property rights
violations. Many countries' customary laws—largely unwritten but influence local norms that coexist with
formal laws—are founded on patriarchal traditions in which men inherit and manage land and other property
while women are "protected" but have less property rights. Past practices perpetuate modern conventions that
deny women property rights and silence them when they are violated.
A related study found that patrilocal and exogamous marriage and community resource ownership contributed to
the lack of land rights. This system required women to marry men from other clans and move in with them on
clan territory. While many people still live on clan land, the regulations derived from this system are unique and
different from common clan land [11].
As daughters marry, they are expected to sell or leave their land to their husbands or children from other clans.
Much like the succession Act grants intestate children 75% of his estate in equal shares, the girls are disinherited
by the customary practice that they do not inherit from their fathers but are considered outsiders by their
husband's families, losing out twice.
Application of the law of succession to foreigners
If the wife or child of a deceased non-Ugandan resident in Uganda for two years or more is ordinarily resident in
Uganda, their property is subject to the Uganda law of Succession[1]. First, the legislation restricts to a wife and
child. A more inclusive approach would include spouses, children, and dependent relatives as beneficiaries. This
provision protects illegitimate children of foreigners who die in Uganda without a will and their other dependants,
saving some hardship that was not previously averted [12]. This interpretation is partially correct, however the
law limits benefits to Ugandan residents. Ugandan law does not address non-resident beneficiaries. This has been
criticized as unfair and restricting. Ugandan legislation should allow foreigners to inherit family estates. Special
proceedings should be legal to accommodate these processes. The Foreigners' Act (which allows the government
to restrict or prohibit foreign citizens' rights) and the Foreign Exchange and Management Act affect foreigners'
succession and inheritance in India. Religious communities in India follow distinct laws. Hindus have the Hindu
Succession Act and a part of it uncodified, Muslims have the Islamic Law on Succession, Parsees, Christians, and
others fall under the Indian Succession Act[13]. The deceased's personal law determines inheritance law. Foreign
citizens inheriting from Indian citizens must follow the law of the appropriate Indian religious group. Foreign
citizens die with their religion or nationality's personal law. If the deceased foreigner's nationality at the time of
death refers inheritance concerns back to India (i.e., where his/her property is), the Indian inheritance law takes
precedence. Personal law of the deceased pertains to inheritance in India. This law may be the deceased's religion's
textual law or the deceased's nation's codified law. All inheritance matters are handled by the district civil
court[13]. The district judge's court where the property is located or where the deceased lived in India before
death or leaving the country handles inheritance matters. The High Court (HC) may transfer a property dispute to
one civil court if it is in multiple jurisdictions. The HC may hear two appeals from there. A Successional Leave
Petition (SLP) may be allowed to be heard by the Supreme Court of India, the Apex Court, when the second appeal
is exhausted and if exceptional legal concerns are involved. Stamp duty and court expenses depend on the
property's state. Succession and inheritance disputes can take as long as any other civil matter, depending on the
complexity of the claims, the law's interpretation, and the number of appeals[13]. The world is becoming a global
village, and Uganda allows dual citizenship. Foreigners often live, work, and own property in Uganda, which may
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be part of their estate. Thus, the law must adapt to changing patterns by including cases where a foreigner's estate
stays in Uganda, whether or not their intended or de facto beneficiaries are Ugandans.
Entitlement of dependant relatives
The Succession Act defines dependent relatives as those related to the deceased by marriage or blood or who were
substantially dependent on him/her for their sustenance[1]. These individuals receive 9% of the intestate's estate.
The Commission's report on Domestic Relations[14] argued that the surviving individual has no obligation to
support dependant relatives who are not part of the deceased's immediate family. The argument was that the Page | 96
immediate family should not be required to care for others whom the deceased helped out of goodwill. It was also
argued that the estate may not be enough for the immediate family.
Another study on Muslim Women in Marriage and Household Resource Management in Uganda[15] suggests
that a deceased man's estate should benefit his widow/widower and children solely. It is recommended that
relatives should not get shares from an inheritance as they may compromise the property rights of the widowers
and children. Whether dependent relatives should remain beneficiaries in an intestate will is crucial. Kenyan
succession law[16] defines dependants as:
(a) The deceased's spouses, children, and immediate family members, including those maintained by the deceased
prior to death;
(b) The deceased's parents, step-parents, grandparents, grandchildren, step-children, adopted children, siblings,
and half-siblings; and
(c) The deceased's spouse.
The law empowers a dependant to sue for remedy if the deceased or administrator made unreasonable provision.
U.K. law[17] considers "other relatives". These beneficiaries are eligible if no intestate issue has a vested interest,
subject to the surviving spouse's beneficial interests. The residuary estate of an intestate is held in trust for their
relatives in a certain order. Persons with vested interests in one paragraph exclude those in the next:-
I) Parents: surviving parents receive equal shares when only one survives the intestate.
2) The intestate's siblings are beneficiaries of statutory trusts.
3) Half-blood siblings of the intestate on statutory trusts.
4) Grandparents: those who survive the intestate inherit equally, but those who only one survive take absolutely.
5) On statutory trusts, uncles and aunts must be siblings of the intestate's father, excluding their spouses, despite
being named aunt or uncle.
6) On statutory trusts, half-blood uncles and aunts must be siblings of a parent of the intestate.
Protection for dependant relatives is widespread and praiseworthy, but the estate may not be enough to support
some of them. This may happen if the dead was a salaried worker or if the inheritance is too little for many
dependents. The law should establish under what conditions each beneficiary category can get a share of the
estate. Clear priority should be given to immediate family, such as husband and children.
Application for grant of probate and letters of administration
Grants of probate and letters of administration are court documents that authorise the personal representative to
administer the deceased's estate and outline the terms of administration. The executor or administrator of a
deceased person is his legal agent for all purposes and inherits all of his property under Section 179 of the
Succession Act [1]. An executor is a person appointed by the will to manage the deceased's estate. If the deceased
dies intestate or leaves a will without appointing executors, the administrator or executor can dispose of his
property in any way he deems fit.
If an executor is appointed by the will and seeks probate, their authority begins upon the testator's death and is
confirmed by the grant of probate. Other times, the personal representative has no authority before the grant and
gets it from the award. Only executors can receive probate, either simultaneously or separately. If a codicil is
discovered after probate, the executor may receive a separate probate if it does not revoke the will's executors.
If the codicil appoints other executors, the will's probate will be overturned and the will and codicil probated
simultaneously.
Letters of administration allow the administrator all intestate powers as if awarded immediately after his death.
The high court and magistrate's court have probate and administration jurisdiction under decree 13/72 on the
administration of estates (small estates) (specific provisions) [18].
To apply for letters of administration, a beneficiary is expected to submit an English petition stating:
a. The deceased's time and place of death.
b. The deceased's family and their residences.
c. The petitioner's claim.
d. The dead left property.
Consider the jurisdiction of the high court/district delegate, and the quantity of assets likely to be obtained by the
petitioner. For district delegate applications, Section 236 of the succession Act[1] provides that the petition
must mention whether the deceased lived in the delegate's jurisdiction at the time of death.
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To apply for probate, submit an English petition stating:
a) The testator's death date.
b) The execution of the last will and testament.
c) The amount of assets likely to be transferred to the petitioner.
d) The petitioner is the named executor.
If the will is not in English, a transaction must be attached to the petition. Give notice of the probate/letters of
administration application. This notice allows 14 days from application date for claims or grievances to be Page | 97
caveated. This is followed by the petitioner identification. The high court registrar and magistrate's court
magistrate do this. Court will award administration/probate letters if satisfied. Under this Act, the high court and
a magistrate's court can give probate and letters of administration under the administration of estates (small
estates) (special provisions) Act.
There are issues that arise in management of probate:
a) Number of executors maximum and minimum: Section 185 of the Succession Act allows multiple
executors to get probate simultaneously or separately. However, granting powers to multiple people over the
same estate section may be unworkable and hinder execution. Therefore, the law may need to define a minimum
and maximum number of executors for the same estate part. The Supreme Court Act[19] prohibits granting
probate to more than four people for the same portion of the deceased's assets.
A testator can appoint six executors for the same property, but only four can receive probate. Though power will
be reserved for others (if not renounced) to apply in any vacancy, probate can be granted to one executor in
England, as in Uganda, regardless of minority or life interests under the deceased's will or partial intestacy.
Certain situations can make an executor incompetent to handle an estate, even if appointed. Such scenarios
include when the named executor is convicted of a crime[19], when the executors deny probate, or other
conditions. Under English law, the court can pass over an executor and appoint another administrator if special
circumstances warrant it. The unique circumstances need not relate to the estate or its management, but may
include any other factors the court deems relevant[19].
b) Retracting a renunciation: The Succession Law of Uganda does not allow an executor who has
renounced probate to take probate. English common law allows this with court permission. However,
such a matter may only be entertained if retracting the renunciation will benefit the estate or those
interested under the testators will.
Section 5 of the 1925 Administration of Estates Act[20] allows executor retractions. In rare cases, a
registrar may allow an executor to withdraw after granting a letter of administration. Section 6 of the
same Act states that if an executor retracts and proves the will, probate will proceed. Other personal
representatives who have proven the will or taken out letters of administration may be prejudiced.
c) Unchecked executor powers: The law vests all property in the administrator or executor without
necessary checks, yet such powers can be exploited to the beneficiaries' detriment. No action can be
taken by the Administrator General to defend the estate until six months have passed and plunder is
proven. In the case of Mallinga v. Mallinga [20] where the deceased, Dr. Stephen Ouma, died testate,
choosing his brother as executor and leaving most of his estate to his wife and children. The widow
wanted to be consulted on will implementation, which caused miscommunication between the executor
and widow. Cars and other personal properties were taken by the executor. The Administrator General
applied to protect the family's interests, but the court ruled that the executor needed time to collect the
deceased's inheritance under section 28180 before filing an inventory. It was also found that the
executor had authority to distribute the estate to the recipients, absolving him of wrongdoing. After
eight months, the widow sued the executor for probate revocation and estate preservation. The executor
had wasted the estate by then. England's law allows subsequent events to cancel a legally made grant
[22]. The legislation allows revocation if a grantee breaches a responsibility.
CONCLUSION
Succession is the transfer of property. It includes testate and intestate succession. The deceased dies without a
will, resulting in intestate succession. Fortunately, or unfortunately, most society members support intestate
succession. This is mostly due to illiteracy and the belief that writing a will guarantees early death. Hence, the
study calls for the law to specify the maximum number of executors for a given portion of the deceased's assets.
Additionally, the legislative revision should empower the High Court to replace an incompetent executor with
an administrator. Retraction of a probate renunciation for particular circumstances should be considered in the
legislative ammendment. The legislation should be amended to allow rapid remedy if a beneficiary or other
interested party proves the grantee breached duty, was fraudulent, or inefficient in estate management. The
legislative modification should shield the estate from distribution before letters of administration and probate.
Amendments to the statute should expand the avenues for grant revocation, such as application by an
interested party and Administrator General Intervention. The government and civil society should develop
 Open Access
©NIJCRHSS Print ISSN: 2992-6106
Publications Online ISSN: 2992-5789
initiatives to strengthen the administrative system for managing the estates of deceased individuals. Finally,
law penalties should be modified to reflect contemporary socio-economic situations and reflect a punitive
posture. The Administrator General's office should develop measures to enhance district-level agent capacity.
The Administrator General's office should address remuneration for extra tasks performed by these agents.
Based on the advice, structural modifications are needed within the Administrator General's office to support
full operations. To effectively perform this responsibility, the Ministries of Finance Planning and Economic
Development and Justice and Constitutional Affairs should invest greater resources. Page | 98
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justice/resource/law_advocacy_for_women_in_uganda_v_attorney_general
3. Wengi, J.O. Weeding the Millet Field: Women’s Law and Grassroots Justice in Uganda. Uganda Law Watch
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(1978)

CITE AS: Nassanga Yvonne (2024). A Critical Assessment of the

Effectiveness of Law of Intestate Succession in Masaka District of Uganda.
NEWPORT INTERNATIONAL JOURNAL OF CURRENT RESEARCH
IN HUMANITIES AND SOCIAL SCIENCES, 4(3):94-98.
https://doi.org/10.59298/NIJCRHSS/2024/4.3.9498