Either you write a will or war erupts

Over 3,600 family conflicts registered in one year and the number is rising

John Kalyemera was bundled, his wife and daughter raped and he himself killed in cold blood over a land dispute as Watuwa Timbiti writes

On the morning of August 6, John Kalyemera in Kizonga village in Kitenga sub-county, Mubende district lay in cold blood. He had been slain the night before. 

The attackers first bundled him up, raped his wife and 14-year daughter, before repeatedly stabbing him to death. It was not only painful, but equally a desecration of human dignity to sexually abuse his family before his eyes.  

Consequently, the Police arrested four brothers, Aberi Kalungi, David Ssewakiryanga, Adolf Ssebayigga and Frank Ssekitto, in connection with the murder and double rape.

Kitenga LC1 chairman Matia Zziwa says Kalyemera had stayed in the area for long. He came in the area as a worker in late Ben Mabirizi’s home, the suspects’ father.

According to Zziwa, Mabirizi before he passed on entrusted his property with Kalyemera, including over 50 heads of cattle and land, suspecting that his sons would sell off the property. 

Mabirizi also apportioned Kalyemera a piece of land to build the house where he has been staying with his family.

Residents accuse the brothers of having killed Kalyemera. They had severally demanded to have their father’s property back.

Can one give property to anyone?
Robert Bogere, an assistant administrator general, says every person is entitled to his/her opinion. 

“So, one can decide to give or entrust property with someone else who is not an immediate family member or relative,” he states.

Bogere argues that the reasons could be that the children are too young to manage the property or when there is a huge age discrepancy between them. 

In such situations, he says, there is always fear that the elder children may not give the young ones their due share, thus necessitating a neutral property caretaker who then distributes it when they grow up.

The neutral caretaker could be a lawyer, an estate management company, a trusted friend or a relative. 

Bogere advises that if a parent or anybody else, while still alive decides to give property to someone or his children, that process should be documented - a deed of gift should be written before witnesses and the giver’s immediate family members should know about it to avoid future disagreements. 

“The deed should clearly state who is being given and the relationship between the giver and the recipient. What is being given should also be clearly stated in terms of number, size and location,” he cautions, adding: “The gift could be land, cows to facilitate an introduction ceremony or even a house.” 

Now that people have mastered the art of forging or denying signatures, Bogere observes, the deed is safer and more believable if it has a thumb print — it is easily verifiable.

Without a deed of gift, the claim that one was given this or that property is invalid - so the children are supposed to equally share the property.

Writing a will
Although one is free to give out their property as they wish, Bogere says the rules of natural justice and common sense dictate that biological children or immediate relatives be the first beneficiaries.

“However, a parent has the right not to give you property if you are not a dependent (above 18 years) at the time of his or her death,” he says, explaining: “If you are a dependent, you deserve property because you survive on your parents. The law therefore demands that a parent ensures reasonable sustenance for you.” 

Bogere adds that if as a dependent you are given very little compared to the available property or what others got, for example, one acre of land and your sibling 200 acres in the same area, you can go to court — it will redistribute the land. 

However, court cannot redistribute the land if there is a valid reason in the will for the discrepancies in the allocation.

“The reasons could be beating a parent and you did not apologise, drug abuse, disappointment in case of girls who run out of school and elope with men and fear that the property might be wasted or sold off,” he says.

Giving property to charitable organisations
If one wants to give property for charitable purposes, Bogere says the law requires that a will is written a year before one’s death — this is to give one time to think over their decision. 

“Possibly, within a year one can change their mind — the will could have been done under stress. For example, during praying or anointing of the sick, some shrewd church ministers can bias the patient into giving them his or her property,” he adds. 

The one year requirement applies, even one does not have children. This is a testimony, Bogere affirms, that your relatives or children are more entitled to your property than even the church or mosque.

When should one write a will?
The moment you turn 18 years of age or become responsible, Bogere advises, you should write a will regardless of whether you have property or not. 

“Your will could comprise directions to your children on how they should behave and handle life— you can tell them to always love their mother or father and respect God. So, a will is not just about property as most people misconceive it,” he says, emphasising: “A will is crucial - it reduces succession disputes, especially in polygamous families, where, for instance, 15 children and their mother form an alliance against the other four children and their mother.”

What makes a will valid?
For a will to be valid, Bogere says five modalities should be put into consideration. It should have been voluntarily written, dated and should have a signature or thumb print.

Additionally, two witnesses, who are not beneficiaries, must have been present and it should be clear that one was in the right frame of mind when making the will, not drank, mentally ill or under intoxication.

“The witnesses must be people who have no interest in the property,” he cautions, adding: “The safest place to keep a will is the registry of the High Court, but there are few such courts to be accessed by all. On the other hand, most people have phobia for courts.” 

So the alternative, Bogere advises, is to make several copies and distribute to many trustable people - any alteration of the will by these people is a criminal offence. The Administrator General’s office also keeps wills at an affordable fee, which is paid once.

Property of missing people
For estates of a missing or insane person, court can give a management order to whoever applies to take care of the property, for example, a relative who pays debts and clears the children’s school fees. 

“However, if three years elapse, the law declares the missing person dead and the property is distributed to children, wife or husband,” Bogere says.

With such a declaration, the property may not be given back to the original owner in case he or she shows up, except from the angle of human consideration.  

Where to get help in case of disagreements
Ideally, Bogere says death of every person with property should be reported to the Administrator Generals office. 

“Unfortunately, most people only come to us when there are disagreements,” he says, adding: “Our major role is vetting, for instance, if one wants powers over administration over property worth over sh50m and there is no will, the person should come to our office and open up a file asking for powers.” 

Bogere says this will be followed by having a family meeting so that they decide or choose who should be given the powers. 

“It could be more than one person. The nominees are then given a certificate of no objection, which they present to the courts and apply for letters of administration,” he says.

Widows and widowers married to the late as required by the laws of Uganda may not use the Administrator General’s office - they should just apply to the courts directly. 

This, however, Bogere says, becomes complicated in case a man had more than one wife. 

Alarming statistics
According to information from the office of Administrator General, property-related family conflicts seem to be on the rise. From July 2011 to March 2012, a total of 3,042 files had been opened. By May, the number had risen to 3,629.  This means within a space of two months, there was an increase of 587 cases.  Notably, the office handled 976 family arbitrations in March and 986 by May. On the other hand 275 land transfers were issued by March and 319 by May.

Kalyemera’s case
Bogere says if Mabirizi left a will, it depends on what is in it. Was Kalyemera an executor of the will, for example? 

“If so, he should have gone to court to get letters of probation and then taken them to the land office, in case the said land has a title, and have the land in his names. Then he would transfer or distribute the land as per the will,” he Says.

Secondly, if Mabirizi gave the said property to Kalyemera when the former’s children were still dependents, they should have gone to court over denying them a reasonable sustenance.

And if there was no will at all left behind, Kalyemera does not then have a legal claim over that property

“Let people make wills and let them stop looking at writing a will as a sort of death warrant,” he says. 

Importantly, if the will is read out at the funeral, the reader should not just put it back to his brief case and disappear.

“The will is now no longer a secret - it is, therefore, vital that each of the beneficiaries gets a copy so that in case the custodian of the will dies, there is no room for disagreements,” Bogere advises.

He says the heir is not necessarily the owner of the property and does not have more rights than other children in the family - his position is just customary and not legally defined.”

For example, Bogere says if one becomes heir to a man whose only children are daughters, legally the daughters own the property. 

What do you think?