Where the law is silent. Suffice it to say that the person whose relatives are to be reckoned in the appointment of a legal heir are all male. But it should be remembered that this provision comes into play only where there is no will appointing an heir. Since the law is silent on who can be appointed as heir in a will, it follows that the person making the will can appoint anybody, including a daughter, without breaking the law.
Prof Apolo Nsibmbi’s decision to appoint a daughter as his heir caused ripples among various people. While feminists saw this as victory for their cause, others saw it as a slap in the face for the customs of Buganda, Nsibambi’s community.
Still others referred to the Bible to justify Nsibambi’s action, quoting from a verse in the book of Numbers where God told Moses that daughters could inherit their father’s property.
Unfortunately, all these reactions missed the point because all issues concerning the appointment of an heir to a deceased person are governed by law.
Accordingly, it is to the law that we have to turn to establish whether or not Nsibambi’s action is sustainable.
The Succession Act recognises two types of heirs namely a customary heir and a legal heir. A “customary heir” is defined in the Act as “the person recognised by the rites and customs of the tribe or community of a deceased person as being a customary heir of that person.”
The same Act defines a “legal heir” to mean the living relative nearest in degree to an intestate (or a person who dies without leaving a will) under the provisions set out in the Act.
The Act goes on to define degrees of relationship (or lineal consanguinity as used in the Act) from which a legal heir can be appointed.
It is provided that “lineal consanguinity” is the relationship which exists between two persons one of whom is descended in a direct line from the other as between a man and his father, grandfather, great-grandfather and so upwards in the direct ascending line or between a man, his son, grandson, great-grandson and so downwards in direct descending line.
According to the table set out under section 23, a legal heir can only come from a son, grandson or great-grandson. In the absence of any of these, resort can be made to a brother, nephew and son of the nephew but not to a daughter.
Suffice it to say that the person whose relatives are to be reckoned in the appointment of a legal heir are all male. But it should be remembered that this provision comes into play only where there is no will appointing an heir.
Since the law is silent on who can be appointed as heir in a will, it follows that the person making the will can appoint anybody, including a daughter, without breaking the law.
Where a person making a will does not appoint a customary heir recognised under the rites and customs of his tribe or community, it means that such an heir can still be appointed according to custom.
For example, in Buganda, the principle role of a customary heir is to look after the well-being of the daughter’s of a deceased person. For this reason where a deceased person does not appoint a customary heir, custom ordains that only his daughter have a right to appoint one.
Accordingly, where there is no customary heir appointed by the deceased, one can be appointed by his daughters from among the deceased’s brothers, nephews or son of the nephew or brother’s grandson as provided for in the Act.
A customary heir’s right to the deceased’s property was abolished by the Act. For example, the residential house where the deceased lived with his wife, is held by his personal representatives upon trust for the legal heir with a right of occupation by the widow until her death or remarriage.
The provisions of the present Act are a reaction to the experience of widows who lost everything to relatives of their deceased husbands.
Mr Mulira is a lawyer.