Parliament has passed the Probate Resealing (Amendment) Bill, 2019 that seeks to ease the administration of property across borders.
The Bill serves to cater for an Act entitled, “The Probate (Resealing) (Amendment) Act, 2019”, which will amend the Probate (Resealing) Act, Cap 160.
The new Act will repeal any reference to the Commonwealth and British courts, and to align it to the Constitution of Uganda.
The Bill was introduced in Parliament by the Deputy Attorney General on 12 August 2019, and was referred to the Committee on Legal and Parliamentary Affairs for scrutiny.
During a plenary session chaired by Speaker Rebecca Kadaga on Tuesday, 16 March 2021, Hon. Jovah Kamateeka, a member of the Legal and Parliamentary Affairs Committee, presented the committee findings and recommendations to the House.
In her presentation, Kamateeka said that due to passage of time, some aspects of Probate (Resealing) Act Cap 160 that came into force on 30 May 1936 had become outdated, especially in light of the Constitution, government policies, emerging, international best practices and the legal environment.
According to the committee report, letters or probate granted by a court other than a court of a country belonging to the Commonwealth could not be enforced in Uganda, which limited Ugandans in those countries from benefiting from the provisions of the Act and succession laws in general.
“This Act, therefore, needs to be expanded to reflect Uganda’s position in the global world…this Bill, therefore, seeks to remove the limitation inherent in the Act in order to give it broader application,” Kamateeka told MPs.
Among the proposals of the Bill is in clause 2 whereby section 1 of the principal Act is to be amended by deleting the definition of the words for the words, “British court in a foreign country” and “probate” and “letters of administration”; the last two of which the committee rejected.
The committee observed that deleting the word, “probate” and “letters of administration” would create a lacuna as to the extent of the principal Act, given that the principal Act dealt with the sealing of probate and letters of administration.
“The committee notes that the object of the amendment to the principal Act is to expand the application of the Act beyond countries in the Commonwealth.
The committee further notes that whereas countries in the Commonwealth use the terminology “probate or letters of administration” to refer to the authority given to a person by court to administer the estate of a deceased person, countries applying the civil law system, use a different terminology,” reads the Committee report in part.
The Bill also proposes to amend section 2 of the principal Act in order to expand it beyond the countries that are in the Commonwealth and probate issued from British courts, whereby the expansion of the provisions result in the enforcement of probate and letters from any country in the world.
The committee observed that the amendment was practical since it took into account the fact that a Ugandan or a person domiciled in Uganda may have property in Uganda as well as in any other country in the world, and thus grants such a person the ability to have his or her property managed in Uganda; or in any other country as long as there is a letter or probate from such a country or Uganda.
The committee also proposes in clause 4, to amend section 3 of the principal Act by inserting a new sub-clause (2) that requires letters and probate not to be resealed in Uganda unless the relevant laws of the country that issued them are in conformity with the Constitution of Uganda.
Kamateeka told the House that the committee rejected the proposal citing that it was ambiguous because it required the laws of another country to conform to Uganda’s constitution and yet the Constitution did not make provision for the resealing of letters and probate in Uganda.
“In light of the above, the committee recommends that clause 3 is amended to ensure that countries provide reciprocal enforcement of letters or probate issued by courts in Uganda before they can have letters or probate issued by courts in that particular country enforced in Uganda,” she said.
The Bill also amended sub-section 3 of the principal Act by inserting three more clauses that cater for letters of administration or probate obtained from a court of a partner state of the East African Community being enforced as if the same was obtained in a court of law in Uganda.