Law barring attaching residential home after death over debts mooted

Deputy Attorney General, Jackson Kafuuzi

By Prisca Wanyenya

The Legal and Parliamentary Affairs Committee has embarked on scrutinizing the Succession Amendment Act 2021 and in one of the proposals, the Government seeks to put an end to the practice of evicting occupants of a residential home in case of debts.

Deputy Attorney General, Jackson Kafuuzi re-tabled the amendment before Parliament last week after Speaker Oulanyah declared all pending business from the 10th Parliament had to be reconsidered after expiry of the 10th Parliament in May 2021.

In the new legislation, the Government is seeking to replace section 279 of principal Act that will bar attaching the residential home in case the deceased incurred debt on the property without seeking consent from the spouse.

“Debts incurred by the deceased against the principal residential property or any other residential property during marriage without the written consent of the spouse who, prior to the death of the deceased person shared that principal residential property or any other residential property with the deceased, shall be void and excluded from payment from the estate of the deceased person,” reads in part the proposal in the bill.

While introducing the bill, Government argued that The Succession Act was enacted in 1969 but some of the provisions infringed on the right of women to own property and as thus, the new amendment is intended to provide for equal distribution of estates of deceased parents amongst all the children, regardless of the age or the level of dependency on the deceased at the time of death.

An amendment in section 27 of the principal Act will clearly spell out how property will be shared if the deceased passes on without leaving a will behind (in estate).

The spouse shall receive 20 percent, the dependent relatives 4 percent, lineal descendants 75 percent and the customary heir shall receive one per cent of the whole of the property of the intestate.

Where the intestate leaves no surviving spouse or dependent relative capable of taking a proportion of his or her property, that proportion shall go to the lineal descendants.

In cases where the intestate is survived by a spouse or dependent relative and a customary heir but no lineal descendant- the spouse shall receive 50 percent; the dependent relative 49 percent and the customary heir shall receive 1 percent.

Where 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 one hundred percent, of the whole of the property of the intestate.

There is a proposal to replace section 30 of principal Act barring a surviving spouse of an intestate from making any claim on the property of the deceased who died without leaving behind a will if, at the death of the intestate the surviving spouse was separated from the intestate as a member of the same household.

However, this provision doesn’t apply if the surviving spouse has been absent on an approved course of study in an educational institution; or the intestate was, at the time of his or her death, the one who had separated from the surviving spouse as a member of the same household.

Although, this provision doesn’t affect a child or lineal descendant sired by the surviving spouse and the intestate shall be entitled to benefit from the estate of the intestate even if the two were separated.

Unlike in the current Act that bars individuals with mental illness from making a will, the government is moving to correct this injustice and in the new provision; “a person who ordinarily has a mental illness may make a will during an interval in which he or she does not have the mental illness and where a person making a will is married or has children, the principal residential property and any other residential property of the person making the will shall not form part of the property to be disposed of in the will and shall be reserved for the welfare of the spouse or spouses and lineal descendants of the testator.”

The new legislation is also giving a person who has a hearing impairment, physical impairment, speech impairment or visual impairment powers to make their own will.