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Have you written your Will?

By Vision Reporter

Added 23rd June 2010 03:00 AM

WHEN mzee Rukidi Gabigogo passed on a few years ago, he left a Will in which he entrusted one of his sons, Moses Rukidi, a lawyer in Kampala, to be his heir. As the heir, Rukidi went to the Administrator General’s office and applied for letters of administration for his father’s estate in Bulong

WHEN mzee Rukidi Gabigogo passed on a few years ago, he left a Will in which he entrusted one of his sons, Moses Rukidi, a lawyer in Kampala, to be his heir. As the heir, Rukidi went to the Administrator General’s office and applied for letters of administration for his father’s estate in Bulong

By Chris Kiwawulo

WHEN mzee Rukidi Gabigogo passed on a few years ago, he left a Will in which he entrusted one of his sons, Moses Rukidi, a lawyer in Kampala, to be his heir. As the heir, Rukidi went to the Administrator General’s office and applied for letters of administration for his father’s estate in Bulongo, Rakai district, and duly got them. A few months later, he had misunderstandings with his mother and siblings.

Rukidi asked his mother, Maria Gabigogo Namwanje, to leave the family home, arguing that her actions had become intolerable and as the heir, he had the right to protect his father’s estate. Rukidi is Namwanje’s second born among the 11 children she had with Gabigogo.

He mentions instances where his mother has ganged up with his siblings and attacked him with pangas. Besides, Rukidi adds: “My mother is not legally married to my dad.” As a result, the seven living siblings together with 85-year-old Namwanje have dragged Rukidi to court to block the eviction of their mother off a piece of land where she has lived for over 50 years.

They also accuse Rukidi of taking charge of all pieces of land measuring over 500 acres in Buyonja, Lyakisana and Bulongo that belonged to their late father. Recently, Moses Mukiibi Masaka, the Masaka High Court judge, issued a decree revoking the letters of administration that Rukidi acquired to run his father’s estate.

The judge ordered Rukidi to surrender the documents to court. But Rukidi declined and instead appealed the decision under appeal number 56 of 2009 in the Court of Appeal.

Rukidi says he legally inherited his father’s estate, adding that each family member got his or her share as stipulated in the Will. It is such legal battles that often discourage people from writing Wills.

But legal experts say every member of the public should draft a Will when they turn 18, the legal age of consent. If there had been no Will in Gabigogo’s case, perhaps there would have been more chaos.

The only challenge about the consent age is the discrepancy between the age of 18 stipulated in the Constitution and that of 21 set under the Succession Act, says Lydia Nabiryo, a lawyer and human rights officer at the gender and labour ministry. As such, she is of the view that the consent age be harmonised.

What is a Will?
It is a document which expresses the wishes of a person after death. It looks at where one would like to be buried and how his property should be shared out.

A Will should be in writing, whether by the testator (Will maker) himself or by another person whom the testator may entrust to write on his behalf.

Nabiryo says that a Will can also be written by a lawyer at a fee.
Who can make a Will?
According to the Succession Act, anybody who attains 21 years can make a Will, whether male or female, married or single. A Will should be made voluntarily and the testator must fully understand what he or she is doing at that material time, says Nabiryo. She notes that if any of the above is not fulfilled, then it means that the deceased did not leave a Will.

The importance of a Will
A Will provides for orderly succession as it clearly spells out how property should be distributed. “It also provides for how minor children (guardianship) and the elderly should be looked after,” Nabiryo says. Without a Will, children are most likely to suffer physical, emotional or mental harm as they are more vulnerable than adults.

Jessica Alupo, the state minister for youth and children affairs, quotes a study by the Uganda Reach the Aged Association (URAA) and says over 96% of the 17.1 million children (below 18 years) in Uganda are vulnerable. She says 14% (2.43 million) of the children are orphans. The study estimates that 63% of orphaned and vulnerable children live with care-givers, who are mainly older poor women, their grandparents.

Joseph Mugisha Bitature, the URAA executive director, notes that many children become vulnerable due to poverty and insecurity, especially when they lose their parents. Although there are no statistics on the percentage of Ugandans above the consent age who have written a Will, the number is very minimal, says Bitature. He revealed this during the national consultative meeting on inheritance rights of orphans and vulnerable children at Hotel Africana in Kampala recently. URAA organised the meeting where Alupo was the chief guest.

Bitature says his organisation would work with all stakeholders to advocate for the development and or review of policies aimed at protecting children’s rights. But during the consultative meeting, participants outlined a number of challenges that may make a Will irrelevant or cause more chaos.

Cultural challenges
Peter Odebe, a former employee of the information ministry, notes that a Will is as good as useless in some cultural settings, citing the Karimojong community where a man can pay off another man and take over his wife and children.

He adds that some cultures encourage widow inheritance, thereby giving the inheriting person a chance to take over his deceased brother’s property.

However, the gender ministry discourages such negative cultures, saying they can lead to family fights over property instead of orderly succession and equal sharing of property.

John Okiror, a principal economist and head of the Orphans and Vulnerable Children’s department in the gender ministry, notes that a will may contradict the Marriage and Divorce Bill 2009 once passed into law.

The Bill states that matrimonial property shall be owned in common and equally in case it is acquired jointly. This might conflict a Will in which the deceased’s husband may have given his children more property than the wife. If this happened, the widow could apply to courts of law and redeem the property from the children, thereby breeding conflict in the family.

Beatrice Mbabazi, from the South Rwenzori diocese, says a Will may cause havoc in a family once one of the family members learns that they have been apportioned less property compared to others.

“Wills are very sensitive and can lead to death because of property,” she notes. She says one can make at least three photocopies of the same Will to avoid alterations. She advises the public to keep Wills in banks, with local councils and at churches, rather than with individuals. David Batema, the deputy registrar at the High Court’s family division, says the law of inheritance is the legal document that governs the administration of one’s property after death.

“This law is necessary for purposes of continuity. It, therefore, provides for the manner in which property of the deceased can be distributed and how other related matters should be dealt with,” he says.

In Uganda, the law provides for two types of inheritance: testate succession (when the deceased leaves a Will) and intestate (without writing a Will or if court declared his will invalid).

Batema notes that under the old law of succession, if a man died intestate, his children would get 75% of his property while the heir was entitled to 1% of the entire estate.

Today, there is no provision in the Succession Act that provides for the distribution of property to beneficiaries in an intestate estate.

What a valid Will should have:
A title, name and address of the testator

The day, month and year it was made

Names of the executor (writer), heir/heiress, guardian(s) and relationships of the beneficiaries.

It may also have other wishes like where the person would want to be buried

Creditors with what is owed to them and debtors with what is due to them.

Properties should be clearly described and how they are to be distributed before the testator signs or thumb-prints at the end of the Will

Names, addresses and signatures of at least two witnesses who must be of majority age

Witnesses should not read through the Will

Have you written your Will?

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