Estate Planning Wills and Succession in East Africa
Estate planning in East Africa is not only about writing a Will. It is about identifying the law that will govern a family, protecting dependants and minors, and leaving evidence that can survive a court challenge.
Contents
Why estate planning is more than a document
East Africa has no single inheritance rule
What a careful Will and Trust should do
What the courts teach lawyers and families
Children incapacity and decisions during life
The practical estate planning rule
Why estate planning is more than a document
Estate planning means deciding, while a
person still has legal capacity, what should happen to property, debts,
business interests and personal decisions during life and after death. A Will
is one part of that plan. Probate is the court process through which a Will is
proved and an executor receives authority to deal with the estate. Where there
is no valid Will, or where a Will leaves property undisposed of, an
administrator normally has to obtain authority to administer the estate under
the law of intestate succession.
The difference matters because death does
not automatically make a family member the owner of everything the deceased
owned. A house may be matrimonial property rather than the deceased's personal
property. Land may be registered in one person's name but affected by a
spouse's interest, a trust, a mortgage or a customary claim. A bank account may
have a nominee, but the nomination may not answer every question about the
estate. A child may be entitled to maintenance or a protected share even where
a document appears to leave the child nothing.
The usual family dispute starts before
anyone enters a courtroom. One relative keeps the original title, another
controls the bank account and a third says that the deceased promised the
family land to him. If the deceased had several households, an informal
marriage, children born outside marriage, property in more than one country or
a dependant living with a disability, a simple sentence such as “my property
goes to my family” creates more questions than it answers.
A lawyer's value is therefore not limited
to producing a standard form. The lawyer must discover what the client owns,
what the client is free to give away, which people the law protects, how the
document must be signed, and what evidence will be available if a disappointed
relative alleges incapacity, fraud or undue influence.
East Africa has no single inheritance rule
The eight current East African Community
partner states share constitutional commitments to dignity, equality, family
protection and property rights, but they do not operate one succession code.
The applicable law may change with the deceased's domicile, the location of
land, the form of marriage, the parties' religion, customary law, the type of
property and the court asked to administer the estate.
In Kenya, the Constitution protects
equality, property, family and the best interests of children. The Law of
Succession Act, Cap. 160, together with the Probate and Administration Rules,
deals with testamentary and intestate succession. The Act recognises
testamentary freedom but permits the court to make reasonable provision for
dependants who have been left without adequate support. The Protection of
Matrimonial Property Act 2013 and the Children Act 2022 can also change what is
properly treated as part of the deceased's distributable estate. A Kenyan
lawyer who drafts a Will without first checking matrimonial ownership and
dependent children may give the client a document that is formally neat but
practically unsafe.
Uganda's Constitution protects equality,
property, family life and the rights of children. The Succession Act, Cap. 162,
was materially revised by the Succession (Amendment) Act 2022. The amendment
removed several gendered distinctions, recognised different forms of
guardianship, strengthened safeguards for the property of minors and changed
the treatment of probate and letters of administration. It also requires close
attention to execution: the lawyer must ensure that witnesses sign, write their
names and addresses on each page as required by the amended law. Uganda's
Administrator General's Act, the Administration of Estates of Persons of
Unsound Mind Act, the Administration of Estates (Small Estates) (Special
Provisions) Act and the Trustees Incorporation Act may become relevant
depending on the size of the estate and the condition of a beneficiary.
Tanzania presents a more visibly plural
system. The Constitution of the United Republic of Tanzania protects equality
and property. The Probate and Administration of Estates Act, Cap. 352, and the
Probate Rules, 1963, provide the machinery for grants of probate and letters of
administration. Yet the substantive distribution of an intestate estate may
also involve customary law, Islamic law and statutory rules. Mainland Tanzania
and Zanzibar must not be treated as though they have identical legal arrangements.
A client should be asked which law governed the marriage and the deceased's
family relations before an advocate gives a percentage as an answer.
Rwanda has placed equality within a more
integrated statutory framework. The Constitution protects equality, family life
and property. Law No. 27/2016 governing matrimonial regimes, donations and
successions regulates the property relationship between spouses, gifts and
succession, while Law No. 32/2016 governing persons and the family supplies
related rules on family status, parental authority and protection of minors.
The practical consequence is important: a lawyer must first determine the
matrimonial regime and the legally recognised family relationships before
calculating what a Will can give. Equal treatment of children cannot be
replaced by a family custom that quietly excludes daughters or children whose
parentage is disputed.
Burundi's Constitution protects equality,
dignity, family and property. The Decree-Law No. 1/024 of 28 April 1993
reforming the Code of Persons and the Family remains a central reference for
personal and family relations, including property and inheritance questions,
alongside later amendments and applicable civil and customary rules. The
lawyer's first task is to identify the governing personal-status rules rather
than assume that a local family practice is automatically the legal rule. A
Will should also be checked against the constitutional protection of equality
and against any rights of a surviving spouse or child that cannot lawfully be
removed by private arrangement.
In the Democratic Republic of the Congo,
the Constitution protects the family and property. Succession is principally
addressed through Law No. 87-010 of 1 August 1987 establishing the Family Code,
as amended and supplemented by Law No. 16/008 of 15 July 2016. Civil status,
marriage, parentage, land registration and the distinction between marital
property and the deceased's separate property are central to the result. A
lawyer handling a Congolese estate should not treat a family meeting or a
customary designation of an heir as a substitute for the documents and court
process required by the Family Code.
South Sudan illustrates the difficulty of
administering an estate in a legally plural setting. Article 16(5) of the
Transitional Constitution recognises a woman's right to own property and share
in the estate of her deceased husband with surviving legal heirs. The
Constitution also recognises cultural communities and traditional authority,
while the Land Act 2009 protects important land interests. Customary law,
statutory law and Islamic law may therefore intersect. There is no safe
universal answer to “who inherits” without investigating the community,
marriage, religion, land status and any applicable court or local authority.
Somalia's Provisional Constitution protects
equality, property, family and children, and places land and property within a
constitutional framework that must be read with the country's Islamic legal
foundation. The Family Law No. 23 of 1975 contains family and inheritance
provisions, including provisions on succession, but practice also involves
Islamic law, customary xeer and the federal structure. A Somali estate plan
should state the client's family relationships accurately and should be
reviewed by a lawyer who knows the relevant federal and local court practice. A
foreign Will copied from a common-law jurisdiction may be unusable or may
produce a result the client did not intend.
The comparison yields one working rule. A
Will is strongest when it is prepared after the lawyer has identified the
governing system, the ownership of each asset and the people whom the law
protects. A document that ignores those questions may merely move the argument
from the sitting room to the probate registry.
What a careful Will and Trust should do
A careful Will should identify the
testator, revoke earlier Wills where appropriate, appoint an executor who is
willing and suitable, describe gifts precisely and deal with the residue. It
should name beneficiaries in a way that does not depend on family nicknames.
“My first-born son” can be ambiguous in a polygamous or blended family. Full
names, dates of birth, identity details and a clear description of land or
shares reduce the opportunity for later substitution.
The drafting lawyer should keep a file
showing the client's instructions, the client's explanation of family
relationships, the ownership documents examined, the advice given about
dependants and the circumstances of execution. Where age, illness, illiteracy,
a hearing or visual impairment or family pressure creates a risk, the lawyer
should take additional steps. The client should ordinarily give instructions
privately. The lawyer should consider whether a medical opinion, an
interpreter, an independent witness or a separate explanation of the document
is needed. A beneficiary should not casually act as the person who drafts,
witnesses or explains the Will.
The client should also be told what a Will
cannot do. It cannot transfer property the client does not own. It cannot
defeat a mortgage or a creditor. It cannot normally remove a spouse's existing
matrimonial interest. It cannot be used to deprive protected dependants in a
manner the governing statute rejects. It does not appoint a person to manage
property before death, and it does not keep a business operating if no one is
authorised to sign for it while the owner is incapacitated.
A trust can help where a child is too young
to manage money, where a beneficiary has a disability or where property should
be distributed over time rather than in one payment. The trust instrument
should say who the trustee is, what decisions the trustee may make, how
accounts are kept, when distributions occur and who replaces an unsuitable
trustee. A trust is not a magic word that defeats succession law. Its validity,
taxation, registration, effect on matrimonial property and exposure to
creditors must be checked under the law of the particular state.
A power of attorney serves a different
purpose. It authorises another person to act while the donor is alive and
usually ends on death. It should be limited to the powers genuinely needed,
contain reporting duties and be withdrawn when trust has broken down. An
advance health directive or similar instruction can communicate a person's
wishes about medical treatment, but East African states do not have identical
statutory regimes for advance directives. The lawyer should therefore confirm
how consent, mental capacity, medical confidentiality and emergency treatment
are governed in the relevant country. None of these instruments is a substitute
for a Will.
What the courts teach lawyers and families
The Ugandan Constitutional Court litigation
brought by Law and Advocacy for Women in Uganda against the Attorney General,
Constitutional Petition Nos. 13 of 2005 and 5 of 2006, is a direct lesson in
constitutional succession advocacy. The petitioners challenged provisions of
the Succession Act that disadvantaged women and other family members. The court
declared a number of provisions unconstitutional and discriminatory. The Uganda
Law Reform Commission later identified that litigation as an important reason
for the reforms enacted in 2022.
The advocates' strongest move was to attack
the legal rule itself through equality, rather than present the matter as a
private quarrel between relatives. They connected the statutory wording to the
constitutional guarantee and sought declarations capable of guiding later
administration. The practical warning is that a lawyer must ask for a remedy
that can operate in the registry and in the family. A declaration of invalidity
may win the constitutional point while leaving families uncertain until Parliament
changes the text and administrators understand the change. A client should
therefore receive advice on the next administrative step, not only a judgment.
In Rono v Rono and another, Civil Appeal 66
of 2002, [2005] KECA 326 (KLR), the Kenyan Court of Appeal rejected the idea
that daughters could be given less simply because a customary expectation
favoured sons. The case is commonly read as a landmark for equal inheritance
treatment. The advocacy that succeeded placed the children, the actual family
circumstances and the statutory law before an argument based only on tradition.
It also shows why a lawyer must prove the facts that make a distribution fair:
the ages of the children, their dependence, the widow's position, the assets
available and the needs that the estate must meet. A party who asserts
discrimination but fails to identify the property, the relationship or the
legal source of the entitlement may lose even where the general principle is on
their side.
In Ephrahim v Pastory and Another, High
Court of Tanzania at Mwanza, Civil Appeal No. 70 of 1989, the court considered
a customary rule that restricted a woman's ability to deal with land she had
inherited from her father by a valid Will. The court treated the restriction as
oppressive and inconsistent with constitutional equality. The practical
significance is larger than the particular parcel of land. When a family relies
on custom, counsel should place the custom before the court accurately,
identify the constitutional or statutory limit, and explain the real effect on
the claimant. Courts cannot test a custom that has been described only in
slogans.
The African Court on Human and Peoples'
Rights reached a related conclusion in APDF and IHRDA v Mali, Application No.
046/2016, [2018] AfCHPR 9. The applicants challenged discriminatory provisions
of Mali's Family Code, including inheritance rules. The Court found breaches of
the Maputo Protocol, the African Children's Charter and other binding
instruments. The case is not domestic law in an EAC state, but its reasoning is
persuasive for lawyers working under the African Charter system: culture and
religion may be relevant to legal interpretation, but they cannot be used as a
complete answer to a proven inequality that treaty law prohibits.
Dissenting judgments are also useful
training material because they expose the boundary of a legal argument. In the
South African Constitutional Court's Bwanya v Master of the High Court, the
majority extended statutory intestate protection to a surviving partner in a
permanent life partnership. Justice Jafta's dissent accepted the need to
address the gap but considered that Parliament should create the appropriate
legal framework, while Chief Justice Mogoeng warned that an informal
relationship should not automatically be treated as a marriage without proof of
reciprocal support. The decision is persuasive rather than binding in East
Africa. Its practical message is valuable: when representing an unmarried
partner, a lawyer should plead alternative routes, prove the relationship and
support given, and ask the court to distinguish between inheritance,
maintenance and ownership instead of treating them as one claim.
Children incapacity and decisions during life
Minor children are often the people most
exposed to an estate dispute. They cannot safely negotiate with an adult who
controls the land, rent or bank account from which they are supposed to be
supported. The Will should name a guardian where local law permits testamentary
appointment, but the appointment should be consistent with the child's best
interests and should not be treated as a licence to use the child's property
personally.
The lawyer should separate three roles that
families often merge: the guardian who cares for the child, the executor who
collects and pays out the estate, and the trustee or other manager who holds
property for the child. One person may lawfully perform more than one role in
some states, but the documents should say so and the law may require court
supervision or accounts. Uganda's 2022 succession reforms, for example,
recognise guardianship duties concerning a minor's property and require
accountability in specified circumstances. That is a useful model of the
principle that care and control of money should be reviewable.
For a vulnerable adult, the lawyer should
record the person's own wishes as far as possible, assess capacity at the time
of each instrument and avoid treating disability or illness as automatic
incapacity. The person may be able to make a Will, grant a limited power of
attorney or express healthcare wishes. Capacity is a legal and factual
question, not a label attached to a diagnosis. If the person cannot manage
property, the plan should provide independent oversight, regular accounts and a
method for replacing a conflicted manager.
After death, the executor or administrator
should secure the original Will, obtain the death certificate, identify the
estate's assets and debts, preserve income-producing property and make the
correct application for probate or letters of administration. Potential heirs
should be disclosed rather than selected by the relative who arrived first at
the registry. A lawyer who fails to join a necessary spouse or child, ignores a
caveat, uses the wrong court or distributes land before the grant and consents
are in place can turn a manageable estate into years of litigation.
Cross-border property requires a separate
check. Land is usually governed closely by the law of the country where it is
situated, while bank accounts, company shares, pensions and debts may raise
different questions. A grant issued in one country may need resealing or
recognition in another. The safest plan records the location and ownership of
each asset and does not assume that one Will or one grant will control the
whole region.
The practical estate planning rule
The best estate plan is not the longest
document. It is the plan that a court, an executor and an ordinary family
member can understand after the person who made it is no longer available to
explain it. It identifies the law that applies, separates matrimonial property
from estate property, names dependants and minors, uses valid formalities,
protects vulnerable beneficiaries and leaves a reliable record of the client's
free and informed decision.
For families, the first step is to discuss the existence and location of the Will, the people who depend on the deceased and the assets that must be secured. For lawyers, the first step is to resist the temptation to copy a form from another jurisdiction. East African succession law is connected by constitutional values, but it remains national, plural and fact-sensitive. Good estate planning respects that reality before a family is forced to learn it through a lawsuit.
Sources Mentioned in This Training Article
Constitution of Kenya 2010; Law of Succession Act, Cap. 160;
Protection of Matrimonial Property Act 2013; Children Act 2022; Constitution of
the Republic of Uganda 1995; Succession Act, Cap. 162, as amended by the
Succession (Amendment) Act 2022; Administrator General's Act; Constitution of
the United Republic of Tanzania 1977; Probate and Administration of Estates
Act, Cap. 352; Probate Rules 1963; Constitution of the Republic of Rwanda 2023;
Law No. 27/2016 governing matrimonial regimes, donations and successions; Law
No. 32/2016 governing persons and the family; Constitution of Burundi 2018;
Decree-Law No. 1/024 of 28 April 1993 reforming the Code of Persons and the
Family; Constitution of the Democratic Republic of the Congo 2006; Family Code
Law No. 87-010 of 1 August 1987 as amended by Law No. 16/008 of 15 July 2016;
Transitional Constitution of South Sudan 2011; Land Act 2009; Provisional
Constitution of Somalia 2012; Family Law No. 23 of 1975; Law and Advocacy for
Women in Uganda v Attorney General, Constitutional Petition Nos. 13 of 2005 and
5 of 2006; Rono v Rono and another, Civil Appeal 66 of 2002, [2005] KECA 326
(KLR); Ephrahim v Pastory and Another, High Court of Tanzania at Mwanza, Civil
Appeal No. 70 of 1989; APDF and IHRDA v Mali, Application No. 046/2016, [2018]
AfCHPR 9; Bwanya v Master of the High Court, [2021] ZACC 51.
Suggested Citation
Ronald Serwanga, “Estate Planning Wills and Succession in East Africa” East Africa Legal Insight (22 September 2026).