People often die, leaving behind a huge chunk of properties, either testate or intestate. When a person dies taste ( leaving behind a will), it can be discerned from the will his or her wishes, and it’s only proper that the executors fulfil such deceased`s wishes.
The broader question to address is what happens when the beneficiary of the will dies before the testator, and no subsequent changes are made in the will.
Faced with similar circumstances, Hon Justice Bernard Namanya of Uganda`s High Court dissected the law relating to lapsing of bequests while delivering the courts judgement in Jjumba and Another v Semuyinde and Another (Civil Suit 849 of 2018) [2023] UGHCLD 150 (16 June 2023).
Background.
The plaintiffs brought the suit against the defendants for various declarations and orders, which was the declaration that they were rightful owners of the suit property. That the beneficiary died earlier than the testator and that at the time of death, the testator did not change his will.
The plaintiffs, through their lawyer Mr Francis Nyakoojo, argued that the suit property rightfully belongs to them as the bequest in the circumstances did not last, whereas the defendants, through their lawyer Mr Semeo Lutakoome argued the contrary, that the suit property instead should be making part of the deceased`s intestate property since the bequest lapsed.
Both parties presented lengthy evidence and relied on several judicial decisions to precipitate their positions.
Findings of the court.
The court, after taking into account all the evidence, the authorities supplied and general submissions of both counsel observed and held the following;
The general rule is that when a bequest is made to a beneficiary in a Will, and that beneficiary dies before the testator, that bequest will usually fail to take effect or lapse. A bequest which lapses where there is no alternative clause in the Will as to how such a bequest is to be dealt with, will go into the residue of the estate. Such a bequest will then be distributed under the residuary provision in the Will. If there is no such provision in the Will, then such a bequest shall be distributed as intestate property.
If a parent makes a bequest to a child in a Will and dies before the parent, leaving children of their own, the bequest in the Will does not lapse. The beneficiary’s children (i.e., the testator’s grandchildren) shall receive the bequest that would otherwise have gone to their parent had they not predeceased the testator or testatrix.
As amended, the Ugandan enabling law is sections 92 and 96 of the Succession Act Cap 162.
The object of anti-lapse laws is to prevent a lapse of the testator’s bequest from happening and to put the property into the estate of the deceased beneficiary to be dealt with as part of his estate, either according to his or her Will or as part of his or her intestate property.
The position of the law is that if the intended beneficiary dies before the testator, leaving a child, the bequest goes to the child who is living at the testator’s death.
Conclusion.
This decision comes in handy for family law practitioners in Uganda. It gives an in-depth account of circumstances involving bequests.
This is not legal advice; contact your Family law Attorney for proper guidance. Simon Nyakoojo-The Author is a Senior Legal Writer at the Judicial Sound Exponent; for a copy of the judgement or inquiries, please email us via [email protected] or [email protected]
