UGANDA MARTYRS UNIVERSITY.

2ND YEAR 2ND SEMESTER AY 2020-2021

FACULTY OF LAW

FAMILY LAW II

THE LAW RELATING TO CHILDREN

1. Definition of a child.
2. Custody and Maintenance of Children
3. Adoption of Children
4. Proof of paternity or declaration of parentage
5. Guardianship

Law Applicable
1. The 1995 Constitution
2. The Children’s Act Cap 59
3. The Children (Amendment) Act, 2016
4. Employment (Employment of Children) Regulations, 2012
5. National Council for Children Act
6. The Children (Adoption of Children) Rules SI 59-1
7. The Children (Family and Children Court) Rules S1 59-2
8. African Charter on the Rights and Welfare of the Child (1989)

1. DEFINITION OF A CHILD

Under Art 257(c) of the 1995 Constitution and S.2 of the Children’s Act Cap 59, a child
means a person below the age of eighteen years.

Under Article 22(2), the Constitution in not so express terms stipulates that an unborn
foetus is a child. It gives a prohibition on abortion by giving such an unborn child a
right to life.

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The case of McKay v Essex Area Health Board (1982) 2 ALLER 771, considered whether an

unborn child has any rights including that to life. In this case, a mother and child claimed

that a doctor not issuing abortion advice when a serious disability is diagnosed during

pregnancy deserved recompense in the form of damages for “suffering entry into a life in

which her injuries are highly debilitating.” The mother and child lost the case. The Court’s

reasoning was that a foetus is not yet a human being to have a say on whether they should

live or not.

1.1 The Rights of Children

The rights of children can be found in Article 34 of the 1995 Constitution. These rights
are:
a) Right to know and be cared for by their parents or those entitled by law to bring
them up.
b) Entitlement to basic education which shall be the responsibility of the State and the
Parents to the child.
c) Right to medical treatment. (Also read Article 14 of the African Charter on the Rights
and Welfare of the Child and Section 5(1)(f) of the Children Act Cap 59(as
amended).
d) Protection from social or economic exploitation and shall not be employed in or
required to perform work that is likely to interfere with their education of harmful
to health or physical, mental, spiritual, moral or social development. (Also read
Sections 6 & 7 of the Children (Amendment) Act 2016 and the Employment
(Employment of Children) Regulations, 2012).

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 1.2 The Child’s Welfare, the Welfare Principle:

The term welfare is not defined in the Children’s Act and hence it is not in the
Amendment.

Although the welfare principle is the cornerstone of child law, it was difficult to find a
judicial definition of what welfare is till around 1893.

Lindley LJ in Re McGrath(infants) (1893) 1 Ch 143 made the first attempt at finding a

meaning for the term welfare. He said;
“…. the welfare of a child is not to be measured by money alone or by physical

comfort only. The word welfare must be taken in its widest sense. The moral and

religious welfare must be considered as well as its physical well-being. Nor can ties

of affection be disregarded.”

In the New Zealand case of Walker v Walker and Harrison (1981) NZ Recent Law 257 as

the best case that defined what welfare is. Hardy Boys J in this case said,

“ ‘Welfare’ is an all-encompassing word. It includes material welfare, both in the sense of

an adequacy of resources to provide a pleasant home and a comfortable standard of living

and in sense of an adequacy of care to ensure that good health and due personal pride are

maintained. However, while material considerations have their place, they are secondary

matters. More important are the stability and security, the loving and understanding care

and guidance, the warm and compassionate relationships, that are essential for full

development of the child’s own character, personality and talents.”

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Ugandan case law has also kept to these set principles of common law while keeping within

our statutory provisions. Read Nakaggwa v Kiggundu (1978) HCB 310; George Nyakairu

v Nyakairu (1979) HCB 261.

The work of court when applying the welfare principle is not to deal with what is ideal

for the child but with what is best that can be done in the circumstance.

In Clarke- Hunt v Newcombe (1983) 4 FLR 482, the appellate court had this to say of the

trial judge,

“There was not really a right solution; there were two alterative wrong solutions.

The problem for the judge was to appreciate the factors in each direction and to

decide which of the two bad solutions was the least dangerous, having regard to

the long term interests of the children.”

Although the Children Act (as amended) does not define what welfare is, the 2016

Amendment introduced a checklist of items that will guide a court of any person faced

with making a legal decision for a child.

What the Act means by “paramount consideration” was explained by Lord McDermott in
J v C (1970) AC 668 to mean a consideration which “rules upon or determines the course
to be followed.”

The checklist is in S.3 of the 2016 to the amendment to the Children Act.

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It should be noted that the check list is not exhaustive. It is only meant to provide a means
by which similarity in exercising the wide discretion in determining what is best for the
child.

Also, worth noting is that the child’s view is not expressed as determinative of the exercise
of the discretion of a judge or any person, though the older the child the more persuasive
their views will be.

Wednesday 31st March 2021

2. Custody and Maintenance of Children

2.1 Custody

Custody concerns the legal rules governing the right of children regarding whom to live
with. lt means the sum total of the rights which a parent may exercise over their child.

The rights subsist until a child attains the age of majority.

In Hewer v Bryant (1970) 1 QB 357, the British Court used the following words in relation
to custody, Sachs LJ;
“In its wider meaning, the word custody is used as if it were almost the equivalent of

guardianship in the fullest sense whether the guardianship is by nature, by nurture, by

testamentary disposition, or by order of a court…. l use the words fullest sense because

the guardianship may be limited to give control over the person or only cover the

administration of the assets of an infant. Adopting the convenient phraseology of

counsel, such a guardianship embraces a bundle of rights or, to be more exact, a bundle

of powers which continues until a male infant attains (the age of majority) or a female

infant marries. These include the power of control education, the choice of religion and

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 the administration of the infant’s property. They include entitlement to veto the

issuance of a passport and to withhold consent to marriage. They include, also, both

the physical control of the infant’s personal property until the infant attains years of

discretion….”

In the same case, custody in Lord Denning’s words is “is a dwindling right which the courts
will hesitate to enforce against the wishes of a child and the more so the older he is. lt
starts with a right of control and ends with little more than advice.”

Karminski L.J in the same case stated that physical possession is only one aspect of custody.

Article 31(4) enjoins a duty upon parents to care for and bring up their children. This means

that the parents of a child have the first right to custody of their own children.

It is when parents live apart, are unmarried or divorced or one or both of them are dead

that the issue of who should have custody of children.

According to S.73(1) of the Children’s Act (as amended), the court may on application of

a sole applicant or joint applicants, grant custody of a child on such conditions as may be

determined by the court. The Court will take into consideration the aforementioned

guiding welfare principle.

The Children Act generally has two types of custody. These are;

a) Interim custody by Court

b) Custody of agreement

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Interim custody is given to either a probation and social welfare officer, mother, father or

guardian of a child on application to a court of competent jurisdiction pending the

determination of the main suit for custody of such a child by Court.

According to S.73A, this order is made where the court is satisfied that the child is suffering

or likely to suffer harm if the order is not given of if it is in the best interests of the child.

Custody by agreement is provided for under S.73B of the Act. Here the parents of the child

enter into a written agreement to determine which of them shall have custody of the child.

Such an agreement is enforceable in a Court of Law unless it is determined by the Court

that it was made not in the best interests of the child, was made under duress or made

fraudently.

Please read:

1. RM (1967) 3 ALLER 1071.

2. Muhammed Hassan v Nana Binti Mzee (1944) 11 EACA 4.

3. Samwiri v Rose Achen (1987) HCB 297

4. George Nyakairu v Rose Nyakairu (1979) HCB 261.

5. Nakaggwa v Kiggundu (1978) HCB 310

6. Wambwa v Okumu (1970) EA 578

7. Re A (a minor) (residence order) (1998) 2 FCR 633.

Tuesday 6th April 2021.

In the application of the welfare principle, the courts have found difficulty as illustrated

with regard to the following;

The natural wishes of the parents:

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Custody is not necessarily granted to a natural parent. The usual rule of thumb is custody

is distributed taking into account the best interests of the child(ren). Sometimes there are

conflicts between the natural parents whose conduct is faultless and an outsider.

But the natural parents as already noted have a strong claim to the child since as also

already noted, the child normally has a right to be with them.

Read the case of Samwiri v Rose Achen (1987) HCB 297

The conduct of the parties

The conduct of the parties in relation to the child is of relevant importance in determining

what the best interests of the child would be.

However, the problem comes where the dispute is between the parents to the child and a

court has to decide how far such a dispute will affect the best interests of the child and

what effect it may have on the custody order.

In George Nyakairu v Rose Nyakairu (1979) HCB 261, the court considers this in coming

to its decision.

The age and sex of the child(ren)

Statements often appear in reports that as a general rule, it is better that very young

children should be in the care of the mother and older boys in the care of the father. These

are not principles or rules of law. They are simply judicial statements of general experience

whose application depends on the facts of each case.

Read Wambwa v Okumu (1970) EA 578

Material Advantage or benefits

Welfare of the child should not be equated with material advantage but should not be

ignored either.
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The ability of an applicant to provide an adequate home for the child is a determining

factor.

In George Nyakairu(supra), the father of the child had superior financial capability as

compared to the mother. The Court while noting that this was irrelevant in a custody

application, it could not be ignored for if it could be proved that the father could use his

superior financial standing to cater for the welfare of the child better than the mother who

was financially inferior, then the father would stand a better chance in being given custody

of the child.

Though this could be the case, the overriding factor is the interests of the child and if the

parent could use the material advantage to enhance the child’s welfare, then it could be

taken into consideration.

Medical factors

The danger of psychological harm arising from a change in custody is now widely

recognised and forms part of the general knowledge and experience of judges. The

evidence of a psychiatrist or educational psychiatrist can be tendered where a dispute about

custody arises. lf the child is suffering from some physical or psychological malady or

condition, then such evidence will be necessary and will weigh heavily in court.

2.2 Maintenance

According to Article 34(1) of the Constitution, children have the right to know and be

cared for by their parents or those entitled by law to bring them up.

S.5(1) of the Children’s Act imposes a duty upon a parent, guardian or any person having

custody of a child to maintain the child by making sure they are educated, immunized etc.

When two parents separate, it is often determined that a child will primarily reside with
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one of the separated parents, the other exercising access or visitation rights from time to

time. In those situations, the parent with the primary residence responsibilities will incur

most of the child-related expenses: food, accommodation, clothing, groceries, utilities,

transportation, school, lessons etc.

To reflect that inequity, the common law and then by statute has established that each

parent has a legal obligation to support their child.

For the parent who does not have the child living with her/him, this means equally or

fairly contribute to their child’s expenses and needs.

This is done by requiring that parent to make monthly or other periodic (rarely a lump

sum or annual payment) to the other parent as a contribution towards the expense of

raising a child.

2.2.1 Who may apply for maintenance?

According to S.76 of the Children Act, the mother, father, guardian as against the biological

parents and child may apply for maintenance.

This can be done during the subsistence of a marriage, during divorce proceedings,

separation or nullity proceedings, during proceeding for declaration of parentage, after the

proceedings for declaration of parentage and during pregnancy or before the child attains

eighteen years of age.

During such proceedings it is incumbent on the party seeking to have a maintenance order

as part of the orders given by the court to formally state so in their pleading as the Court

cannot vary the orders in such proceedings at a later time to include maintenance orders.

Read the Case of Helen Monica Barret v James Barret (1961) 1 E.A 503.

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Wednesday 7th April 2021

2.2.2 Enforcement and variation of maintenance orders

Under S.78 of the Children Act, on application at any time by the applicant for

maintenance or by the person against whom the order is made, the court may after

inquiring into the circumstances, make an order with either increasing or decreasing the

amount of money previously ordered to be paid under the order.

The order is enforceable against the estate of the “payor” upon their death according to

S.37 of the Succession Act. Also refer to S.78(3) and (4) of the Children Act.

Under S.78(2), an order for maintenance against a parent shall cease to have effect on

custody of the child being granted to that parent or other person in his or her place by the

court.

Under S. 79, the money can be paid to applicant or custodian. All the money payable

under maintenance shall be due and payable to the applicant unless a custodian has been

appointed in which case, the money shall be due and payable to the custodian. In S.79(2),

the Court may also order that the money shall be paid into Court and then paid to the

applicant or custodian in a manner and subject to any condition as the Court may direct.

The Court under S.80(1) of the Children Act can appoint a person known as a custodian

where the court is satisfied that the initial applicant is not fit and proper to have custody

of the child or is dead or has become of unsound mind or is in prison. The custodian will

assume custody of the child upon appointment.

The application may be made by a probation and social welfare officer or the person

having custody of the child. This is provided for under S.80 (2) of the Act.

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 2.2.3 Cessation of the Order

Under S.82 of the Children Act, a maintenance order ceases to have any force or validity

upon the child attaining eighteen years.

Tuesday 13th April 2021

3. DECLARATION OF PARENTAGE AND PROOF OF PATERNITY

3.1 Who is a Parent?

The concept of parenthood is far from straightforward. Many a time it is assumed that the

parents of a child are those who genetically produce the child. The woman whose egg and

the man whose sperm together ultimately produce the child are its parents. In the past,

although there may have been practical problems in proving who was the biological father,

that definition of parenthood was generally agreed. In recent times this definition has been

problematic.

Developments have caused a re-examination of the concept of parenthood. The first is the

advent of new reproductive technologies. Now the woman who carries the child need not

be genetically related to the child(surrogacy); a man may donate sperm to a hospital

without ever intending to play a parental role. The law recognises the child’s biological

father as his legal father, if the parties are married, any child born of the wife is presumed

to be the child of the couple.

3.2 Legitimacy at Common Law.

At Common Law, a child is legitimate if his parents were married at the time of his

conception or at the time of this birth.

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A child will be legitimate if his parents were married at the time of his conception, even

though the marriage was terminated before his birth.

Consequently, a posthumous child will be legitimate as will be one whose parents’

marriage was terminated by divorce between the time of his conception and his birth, this

principle was illustrated in Knowles or Knowles (1962) 1 ALL ER 659.

This Presumption of Legitimacy is a question of fact; whether or not a person is legitimate

can only be determined by reference to the following questions;

a) Who was his mother? Normally this question presents no difficulties because the fact of

birth and identity can be established by the evidence or other persons present at birth.

However, there are cases where the maternity is in contestation especially with children

who have been switched at birth.

b) Who was his father? This can never be established by direct evidence; paternity can

normally be inferred only from the fact that the alleged father had sexual intercourse with

the mother about the time when the child was conceived. Consequently, if two men had

intercourse with her during the relevant period it may be impossible to prove affirmatively

which is the father. The significance of this is more clear when we consider the rebuttal of

the common law presumption of legitimacy. This presumption is sometimes known as

pater est quem nuptiae demonstrant or pater est in short which means he is the father

whom the marriage indicates to be so or the father is he whom the marriage points out.

This presumption is that if a child is born to a married woman, her husband is to be deemed

to be its father until the contrary is proved. This means that if it is alleged that it is not

legitimate, the burden of rebutting the presumption is immediately cast upon the party

alleging the illegitimacy. This presumption will still apply even though the child is born so
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soon after the marriage that is must have been conceived beforehand for in the words of

Lord Cairns, L.C in Gardner v Gardner (1877) 2 AC 723 stated that “where a man marries

a woman who is in a state of pregnancy, the presumption of paternity from the mere fact

is very strong….still further where the pregnancy is far advanced, obvious to the eye, or

actually confessed or announced…to the intended husband, a presumption is reared up

which according to universal feeling and giving due weight to what may be called the

ordinary instincts of humanity, it will be very difficult indeed to overcome.”

However, if the husband was ignorant of the wife’s pregnancy when he married her, the

presumption may be rebutted by other evidence. Thus, in Poulett Peerage (1903) AC 395,

the wife was three months pregnant at the time of the marriage. Two months later the

husband separated from her on the ground that she was pregnant by another man. He had

deposed that he had not had sexual intercourse with her before the marriage and that he

had never acknowledged the child as his. Evidence was also given that the wife had told a

friend that another man was the father of the child. It was held that the presumption of

the child’s legitimacy was rebutted.

The presumption applies equally in the case of a posthumous child if it born within the

normal period of gestation after the husband’s death as seen in Re Heath (1945) Ch.417.

However, difficulty arises if the birth takes place at abnormally long time afterwards. In

Preston-Jones v Preston-Jones (1951) CA 391, the House of Lords (Lord Simonds & Lord

Morton) agreed that the Court take judicial notice of the fact that there is a normal period

of gestation (although the period is variously given as 270-280 days or as nine months).

However, Lord MacDermott added that judicial notice must also be taken of the fact that

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the normal period is not always followed and that the actual period in a given case may

be considerably longer or shorter. It would seem however that the longer the period

deviates from the normal, the more easily will the presumption be rebutted, until there

comes a time when it is not raised at all, although it is extremely difficult to say where the

line is to be drawn.

This presumption does not apply to unmarried cohabitants.

Rebutting the Presumption

The presumption of legitimacy is strictly twofold; a) the husband and wife had sexual

intercourse and b) that the child is the issue of that intercourse. It is therefore follows that

it may be rebutted either by showing that the spouses could not or did not have intercourse

or by establishing by medical or other evidence that, in any event, the husband could not

be the father of the child in question.

In the case of SYMC v Official Solicitor (1972) App. Cases 24 at pg. 41, Lord Reid said;

“Blood tests have been used extensively for many years in many countries and its now

generally recognised that if a test is properly carried out by a competent Serologist, its

results are fully reliable.”

At Common law, the generally accepted view was that the presumption could be rebutted

only be evidence indicating beyond reasonable doubt that the child was illegitimate. This

was due to the serious legal incapacities and social advantages attached to bastardy.

This can be illustrated by the Poulett Peerage Case(supra) where the presumption was

rebutted by evidence adduced that the husband had not sexual intercourse with her before

15
the marriage and that the fact that he had not acknowledged the child as his. Evidence was

also given that the wife had told a friend that another man was the father of the child. It

was held that the presumption of the child’s legitimacy was rebutted.

If it can be shown that at the time when the child must have been conceived, the husband

was either permanently impotent or temporarily impotent (whether from illness or any

other cause). But it must be remembered that even though the husband could not have

had intercourse, the wife might nevertheless have become pregnant as a result of

fecundation ab extra as in the Clarke v Clarke (1943) 2 ALLER 540 or of artificial

insemination with her husband’s seed as in the L v L (1949) 1 ALLER 141.

An order for parentage can be applied for at any time before the child reaches the age of

eighteen years.

Under S.67 of the Children Act, the mother, the father, the guardian and the child him or

herself by next friend can apply for an order of parentage.

The procedure for application for an order of parentage is by a complaint on oath to a

Family and Children Court having jurisdiction in the place where the applicant resides or

summons to be served on the man alleged to be father of the child of the woman alleged

to be mother of the child. S.67(d) of the Children Act.

The application, according to S.68 of the Children Act can be made at any time before the

child attains eighteen years of age; or within three years after the death of the alleged

father or mother; or with leave of the Family and Children Court where the application is

made after the lapse of three years.

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In declaration of parentage, Court will consider a number of factors. The mere fact that

the child resembles or doesn’t resemble the presumed parent is not conclusive evidence of

parenthood or otherwise.

In Petelonia Mpirirwe v Oliver Ninsabimana (1994) KALR 88, it was stated by the Court

that evidence of similarity in physical features between a child and the alleged parent is

admissible to prove paternity even if the evidence is not conclusive.

3.2 Evidence of Parentage;

a) Births Register:

According to S.71(1) of the Children Act, where the name of the father or mother of a child

is entered in the register of births in relation to a child, a certified copy of that entry is

prima facie evidence that the person named as the father or mother of the child named

therein.

b) Signed instrument:

According to S.71(2) of the Children Act, an instrument signed by the mother of the child

and by any person acknowledging that he or she is the father or mother of the child if the

instrument is executed as a deed or if the instrument is signed jointly or severally by each

of those persons in the presence of a witness is prima facie evidence that the person named

as the father is the father of the child or the mother.

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AWednesday 14th April 2021

c)Court inferences

The Court may also infer paternity simply from the facts of the case. For example, if it

were shown that the mother and the man spent the night together at the time the

conception is said to have taken place, this would be evidence of the man’s paternity.

In Wynn Jones Mbwambo v Wandoa Petro Aaron (1966) 1 EA 241, the respondent had

written a letter to applicant expressing in endearing terms saying he remembered “that

night.” The Court held that the letter, undoubtedly “tended” to prove that he was the

father of the child. But also went further to hold that the person depending on such an

allegation which should be corroborated and the corroborative evidence need do no more

than show the probability that the mother’s evidence implicating the man is true; it must

point to the man as the probable father, but it is not correct to say that it must be incapable

of any other interpretation.

This is also brought out under S.69(3) of the Act.

d)Order of Court

Under S.71(3) of the Children Act, an order of a court for maintenance made against a

person under any written law is prima facie evidence of parentage in subsequent

proceedings, whether or not between the same parties.

A declaration of parentage by the Court under this part shall for all purposes, be conclusive

proof of parentage according to subsection 4.

An order made by a competent court outside Uganda in affiliation of similar proceedings

declaring or having the effect of declaring a person to be the father or mother of a child is

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prima facie evidence that the person mentioned in that order is the father or mother of

the child.

e) References in wills

According to S. 71(6), a reference, express or implied in a will written or oral, of any person

to a child as his or her child or daughter is prima facie evidence that, that person is the

father or mother of the child.

f) Blood samples may also be used as discussed above; this is provided for under S.69(4)

of the Act.

The burden of proof in parentage proceedings is on the person who alleges.

4. ADOPTION OF CHILDREN

Adoption according to Black’s Law Dictionary, 9th Edition is the creation of a parent-child

relationship by judicial order between two parties who are unrelated.

It refers to the legal and formal acceptance of another’s natural or biological child as if that

child were your own, with the same rights and responsibilities attached thereto as if the

child were your natural child in terms of child support.

In Ayat Joy v Jenevieve Chenekan Obonyo and another HC Adoption Cause No. 52 0f

2002, it was stated by the Court that adoption creates a lifelong relationship of parenthood

between a child and adopter.

4.1 Preliminary steps to adoption.

An application for an adoption order may be made to the Chief Magistrates’ Court within

the jurisdiction of the applicant’s residence where both the applicant and the child are

Ugandans according to S.44(1)(a) of the Children Act. The application may be made in the

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High Court Family Division according to S.44(2)(b) of the Act, where the child or

applicants are foreigners. A child need not be a Ugandan to be adopted according to

S.41(2) of the Act.

4.1.1 Prerequisites for Adoption

a) Age

The applicant or at least one of the joint applicants must have attained the age of 25years

and should be at least 21years older than the child. S.45(1)(a) of the Children Act.

b) Consent(spousal)

Where the application is by one spouse, the other spouse must have consented to the

application. S.45(1)(b) of the Children Act.

c)Sex of the applicant

The adoption order cannot be made in favour of a sole male applicant in respect of a

female child or in favour of a sole female applicant in respect of a male child, unless the

Court is satisfied that there are special circumstances that justify as an exceptional measure,

the making of the order, S.45(3) Children Act. Also read Re Edith Nassazi Adoption Cause

No.4 of 1997 on exceptional circumstances.

Tuesday 27th April 2021

d)Foster Care

The applicant must have fostered the child for a period not less than 12 months under the

supervision of a probation and social welfare officer.

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In Re Derrick, Mugoya, Okola Wily, Edward Kabuyo (children) Adoption Cause No. 69

of 2007, the learned Judge noted that S.45 is only discretionary and not mandatory and

the period can be waived if it is in the best interests of the child.

However, case law has gone ahead to show that the fostering can only be done away with

where special circumstances exist that necessitate the best interests being taken into

consideration.

e) Inter-Country Adoption

The prerequisites are slightly more stringent than in circumstances where the parties are

Ugandan nationals under S.46.

Before a non-citizen, can make an application the following prerequisities must be in place;

i. Must have stayed in Uganda for at least one year

Case law has defined residence in different ways. For example; In Re Yvonne Kamahi

Adoption Cause No.1 of 1993, the Court stated that to constitute residence there must

be a presence in Uganda for a considerable period of time.

In Re M (an infant) SCCA No.22 of 1994, the Supreme Court, while referring to the

English case of Fox v Shirk (1970) 2 ALL ER 7, the Court observed that one can have

two residences and reside in both. That a temporary presence at an address does not

make one resident there and neither does temporary absence deprive a person of his

or her residence.

Odoki JSC as he was then went ahead and stated that the Act did not specify which

kind of residence was required for the purpose of exception and what was required

was substantial presence in connection with Uganda.

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 ii. Must have fostered the child for one year under the supervision of a probation and

social welfare officer.

iii. Must not have a criminal record.

iv. Must have a recommendation concerning his or her suitability to adopt a child from

his or her country’s probation and social welfare officer or relevant competent

authority.

v. Must satisfy Court that his or her country of origin will respect and recognise the

adoption order.

vi. The ordinary prerequisites in S.46(3) of the Children Act also apply here.

Wednesday 28th April 2021

f) Consent of the Child’s parents

Under S.47(1) & (2) of the Children Act, the consent of the child’s parents is necessary if

the parents are known, but it may be dispensed with by the Court at its discretion in

exceptional circumstances if the parents are incapable of giving it or are dead; but the

consent may be revoked at any time before the pronouncement of the adoption order.

In Re Michael Lumu Adoption Cause No. 8 of 2000, it was stated by the Court that the

purpose of the consent under this section is to emphasise the right of the parent over the

child. And this right should only be discarded in the interest and welfare of the child.

In Re Peter Sebuliba alias Namansa James (Misc. Cause No.37 of 2009 (2010) UGHC 124,

the Court stated that, the consent to adoption explicit on the adoption order is a very

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important document because it is in it that the parents or guardians of the child to be

adopted vest their parental rights in the adoptive parents.

Read

1. Re Elena Nsubuga Kaggwa Adoption Cause No.41 of 1989.

2. Re Kakembo (infant) (FAMILY CAUSE No.169 of 2014)

g) Consent of the Child

Under S.47(5) of the Act, where in the view of the Court, the Child is able to understand

the adoption proceedings, then his or her views shall be taken into consideration. S.47(6)

of the Act on the other hand makes it mandatory to obtain the consent of the child where

the Child is at least fourteen years of age unless it is not possible for the child to express his

or her wishes.

Also read Article 12 of the United Nations Convention on the Rights of the Child 1989 on

the requirement of member states to ensure that a child who is capable of forming his or

her own views on such proceedings is given this chance.

4.1.2 Rescission of an adoption order

Under S.46A of the Children Act, an adoption order may be rescinded by a Court of

competent jurisdiction on application by;

a) The adopted child

b) A parent of the adopted child or other person who was a guardian in respect of the

Child immediately before the adoption

c) The adoptive parent of the child

23
d) Any person who consented to the adoption

e) The Minister in case of inter-country adoption or

f) Any other person with a justifiable reason.

The order for adoption may be rescinded only if the rescission is in the best interests of

the child; or the order was obtained through fraud or misrepresentation.

Upon rescission of the order, the child will be for all intents and purposes as one that

has never been adopted before and the responsibilities that had been terminated by

the order previously will be restored.

Upon rescission, the Court may make an appropriate placement order in respect of the

child concerned or order that the child be kept in temporary safe custody until an

appropriate order is made by the Court or the Court may make an ancillary order

where necessary for the restoration of the child.

4.1.3 Pleadings in adoption proceedings

An application for adoption is by way of petition. Lk at Rule 3 of the Children

(adoption of Child) Rules SI_59_1).

The statements in the petition must be verified by an affidavit to which is annexed

certificates and other documents proper for proving all allegations in the petition. (Rule

7).

The Petition is presented exparte by the petitioner or advocate to a Judge or Magistrate

sitting in chambers and the hearing must be attended by the probation and social

welfare officer under whose supervision the child was fostered.

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5. GUARDIANSHIP

A guardian according to Section 1 of the Act is a person having parental responsibility

of a child.

The term “Guardian” is sufficiently wide to include a parent, for parents are regarded

at common law as the natural guardians of their children.

Guardians are to be distinguished from natural parents with regard to the fact that these

stand in loco parentis to a child. In practice the concepts of parent and guardian are

quite distinct for the rights and duties of the former arise automatically and naturally

on the birth of the child whilst the latter voluntarily places himself in loco parentis to

his ward (the child over whom the guardian looks after) and his rights and duties flow

immediately from this act.

The rights and duties of the natural parents arise automatically and naturally on the

birth of the child, while that of guardian voluntarily places himself in loco parentis to

his ward and his rights and duties flow immediately from this act.

A Foster Parent is one who has de facto control and custody of a child without being

its legal guardian.

In the Children Act, Guardianship is of three types; legal guardianship, customary

guardianship and guardian appointed by agreement.

5.1 Legal Guardianship:

This is a fairly new type brought by the latest amendment to the Children Act. It applies

to children in Uganda.

25
According to the Act, S.43A, the order can only be awarded to Ugandan citizens. A

person who is not a citizen of Uganda is not eligible to apply for legal guardianship.

Under S. 43B, an application for legal guardianship may be made by any person above

the age of eighteen years to the High Court.

The Petition shall be in form 1 set out in the Third Schedule and it shall be accompanied

by a report of the Probation and Social Welfare Officer.

5.2 Customary Guardianship:

Customary guardianship means parental responsibility of a Ugandan child by a

Ugandan citizen resident in Ugandan in accordance with the customs, culture or

tradition of the respective people.

This type of guardianship is provided for under S.43C.

Family members may appoint a guardian of a child in accordance with their customs,

culture or tradition where both parents of the child are deceased or cannot be found;

the surviving parent is incapacitated; or where the child has no guardian or any other

person having parental responsibility for him or her.

A customary guardian once appointed, shall act as trustee in respect of the property of

that child.

5.3 Appointment of a Guardian by Agreement- S.45D;

The Parent of the child may by agreement or deed appoint any person to be a guardian

of their child.

26
For such an agreement or deed to have effect, it must be dated and signed by the parent

in the presence of two witnesses, one of whom must be a Probation and Social Welfare

officer, and their must be a local Councillor at LC 1 Level.

S.43E

The Court also has the power to appoint two or more persons to act as guardians of

the child. These are known as joint guardians. They must be spouses for them to qualify

for such an order otherwise, a guardianship order shall not be made to authorise more

than one person as guardian of a child.

5.4 Conditions for Guardianship S.43F;

The Court prior to making an order for guardianship shall satisfy itself that:

a) There is no known relative or next of kin of the child;

b) The relative or next of kin are unwilling or unable to take parental responsibility of

the child;

c) All alternative care options available to the child have been exhausted;

d) The child is suffering or likely to suffer significant harm under present custody;

e) Consideration has been given to the wishes of the child, having regard to the age

and understanding of the child, where in view of the court, the child is able to

understand the guardianship proceedings;

f) Where the child is twelve years or above, his or her consent to the guardianship has

been obtained, unless it is impossible for the child to express his or her consent and

g) That the applicant has continuously lived in Uganda for at least 3 months; does not

have a criminal record; and has a recommendation concerning his or her ability as

27
 a guardian from a Probation and Social Welfare or other competent authority in

Uganda or in the applicant’s country of residence; and

h) That the applicant has not made, given or agreed to make any payment or other

reward in consideration of the guardianship.

5.5 Effect and duration of a guardianship order; S.43H

A guardianship order vests parental responsibility of the child in the guardian.

Guardianship does not completely extinguish the rights and obligations of the natural

parents.

A guardianship order shall remain in force until the child in relation to whom it is issued

attains the age of eighteen years.

The order shall also cease to apply where the guardian dies or is suffering from infirmity

of the body or mind.

The order must be registered within fourteen days after its grants.

Registration is with the Uganda Registration Services Bureau and Ministry responsible

for Children Affairs; a copy of the order should also be submitted to the National

Children Authority.

Read;

1. F v F (1902)1 Ch 688

2. Re Deborah Joyce Alitubeera and Re Richard Masaba Civil Appeal No. 81 0f 2011

3. Re Sarah Mirembe (1992-1993) HCB 187.

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Tuesday 4th May 2021

5.6 Termination of Guardianship

a) The Order of Guardianship ceases to apply when the child attains majority.

b) When the Guardian dies, the order terminates. S.43H; A deceased guardian’s

personal representatives will have no rights or duties with respect to the ward/child,

but his representatives will have no rights or duties with respect to the person of

the ward, the estate will be liable for any breach of trust committed by the guardian

in his dealings with the ward/child’s property. In the case of joint testamentary

guardians, the survivors continue to act as stated in the case of Eyre v Shaftsbury

(1725) English Case.

c) If the guardian is suffering from infirmity of the body and mind

d) Discharge and Removal of a Guardian by the Court: Like a trustee, a guardian once

having accepted the office cannot resign it at will and although in some earlier cases

the court did not look favourably upon a guardian’s request to be discharged, the

modern view is that, if he is unwilling to act, it will be in the ward’s interest that he

should be replaced.

The Court also has power to remove a guardian whenever the welfare of the

ward/child/minor so demands.

 This may be due to the actual or threatened misconduct of the guardian.

 The abandonment of this rights for such a length of time that it would not be

in the ward’s interest to permit him to reassert them as stated in Andrews v Salt

(1873), 8 Ch. App 622.

29
  It may be merely due to a change of circumstances which render it for some

reason better for the ward to have a new guardian and which do not necessarily

cast any reflection on the existing guardian’s integrity at all.

5.7 Revocation of a Guardianship Order;

This is provided for in S.43K

Wednesday 5th May 2021

THE LAW OF SUCCESSION

The Law applicable to Succession in Uganda is the 1995 Constitution of the Republic of

Uganda, the Succession Act Cap 162, The Administrator General’s Act, Cap 157, The

Administration of Estates (small estates) (special provisions) Act Cap 156, Administration

of Estates of Persons of Unsound Mind Act Cap 155; The Estates of Missing Persons

(Management) Act Cap 159.

There are basically three types of succession namely;

 Intestate succession,

 Testate succession

 Partly testate and partly intestate succession

1. TESTATE SUCESSION

This is where a person dies leaving a will or valid testamentary disposition.

A will may be defined as a written legal document that states what property you own and

how you would like it to be divided after your death. It is also a declaration in a prescribed

30
 form of the intention of the person making it of the matters which he or she wishes to take

effect on or after his death.

The classical case that defines a will is the case of Lemage v Goodban (1865) 1 P & D 57 in

which Sir JP Wilde defined it as “the aggregate of a man’s testamentary intentions, so far

as they are manifested in writing, duly executed according to statute.”

A will also states who should be in charge of dividing the property.

S.36 of the Succession Act which states among others that every person of sound mind and

who is not a minor may by will dispose of his property by will.

In general terms, every instrument purporting to be testamentary, or to affect a previous

testamentary instrument, made by a person over the age of eighteen and of sound mind

and executed in accordance with the formal statutory requirements is regarded as a will if

it purports to dispose of property, whether or not the deceased in fact left any property,

or contains the appointment of an executor even if the executor renounces it.

A document without dispositive effect will normally not be effected by a Court of law.

(Read In the Estate of Thomas, Public Trustee v Davies (Caple intervening) (1939) 2 All ER

567).

1.1 What is meant by a Will being ambulatory?

The primary characteristic of a Will is that is designed to take effect after the testator’s

death and is revocable during the testator or testatrix’ life.

The ambulatory nature of wills have several significant implications. ln particular:

i. During the testator’s lifetime, the contents of his Will are treated as mere declarations

of intention. Therefore, he or she is at liberty to dispose of this property intervivos (an

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 intervivos gift occurs when the donor intends the transfer of interest to be immediate

and irrevocable) notwithstanding that it has already been devised by a will.

ii. For his part, a beneficiary to whom property has been left in the will cannot ordinarily

restrain the testator from disposing of such property. His expected interest does not

take effect until the testator’s death and is liable to lapse if he predeceases the testator.

iii. Property belonging to the testator at his death is capable of devolving under his will

even though he had not yet acquired it at the time the will was executed. For instance,

if T makes a will devising “all my real property to B’ and T later buys some freehold

land, which he retains till his death, this land will ordinarily form part of B’s inheritance

under T’s will.

Wonnacott v Loewen (1990) 37 E.T.R. B.C.C.A this is a leading case from British

Columbia with regard to the aforementioned issue.

In this case, the defendant moved in with the deceased in March 1998 and the two

planned to marry when the defendant’s divorce was granted. The deceased wished to

give the defendant some financial security, regardless of the outcome of the litigation

with her husband, so they consulted a solicitor. Certain documents were prepared and

executed, including a transfer of estate in fee simple of the deceased’s residence to the

defendant, to be used in the event of the deceased’s death. The terms governing the

use of those documents were contained in an “escrow agreement” which gave the

defendant an immediate right to live in the residence. lt also provided that the deceased

could take the transfer back in specified circumstances, in which case he was required

to pay the defendant $60,000. The defendant’s divorce was delayed and she was not

married before the deceased died in 1988. She obtained the transfer and had it
32
 registered, thereby obtaining title to the residence. The deceased’s executor brought an

action to set aside the conveyance on the ground that the agreements were

testamentary and invalid because of failure to comply with the Wills Act. The action

was dismissed and the executor appealed.

The Court dismissed the appeal and held that whatever the form of a duly executed

instrument the person making it intends it that it not take effect until after his death

and it is dependent on death for its “vigour and effect,” it is testamentary. However, if

the document creates a gift in praesenti( at the present time) albeit to be performed

after the donor’s death, it is not dependent on his death for its “vigour and effect.” The

documents here examined in isolation, appeared to be testamentary, it was clear that

they had life and vigour from the beginning. The documents conferred an interest on

the defendant in the property and they were not testamentary.

Malinga v Obukunyang HCT—04-CV-CS- 2013/13 (2015) UGHCFD 39.

1.2 Codicil

As already noted, a Will can be altered by the maker during their lifetime. They can do

so by an instrument called a Codicil.

Section 2(c) of the Succession Act defines a codicil to mean an instrument explaining,

altering or adding to a will and which is considered as being part of the Will.

Codicils have been a part of estate law for hundreds of years. In Book 2, page 450 of

his Commentaries on the laws of England, Willam Blackstone described a codicil as:

“…a supplement to will, or and addition made by the testator, and annexed to and to

be taken as part of a testament.”

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 A codicil is of a similar nature to a will as regards both its purposes and the formalities

relating to it, but in general it is supplemental to and considered as annexed to a will

previously made, being executed for the purpose of adding to, varying or revoking the

provisions of that will. A codicil is nevertheless capable of independent existence, so

that the revocation of a will, or a part of a will, does not necessarily effect the

revocation of a codicil to it.

Whatever the form it takes, any document can be proved as a will or codicil if;

 The Person executing it intended it to take effect only at its death. A person’s

testamentary intentions refer to their wishes and desires concerning the handling

of his affairs in the period after his death.

 It was duly executed normally in accordance with Section 50 of the Succession

Act, failure to do so renders the codicil void. (Read Babumba and 13 Ors v Ssali

Babumba (Civil Suit No.78 of 2012) and in the Estate of James Ngengi

Muigai(deceased), Nairobi High Court Succession Cause No.523/1996).

Tuesday 11th May 2021- Wednesday 12th May 2021

A Codicil effectuates a change in an existing Will without requiring that the Will be re-

executed. The maker of the Codicil identifies the Will that is to be changed by the date of

its execution. The Codicil should state that the Will is affirmed except for the changes

contained therein. The same formalities that are necessary for the valid execution of a will

must be observed when a Codicil is executed. Failure to do so renders the codicil void. In

Serwan Kulubya v Nampiima CACA No.51 of 1990, Manyindo JA as he was then held that

34
 a codicil not attested to by two witnesses is invalid and that a codicil is part of a Will and

its attestation is in the same way.

In deciding whether a document can be proved as a Will or Codicil, the Court has to

ascertain the intention of the person who executed it both from the language of the

document and extrinsic evidence. If the document appears to be testamentary on the face

of it, a rebuttable presumption arises that the deceased intended it to take effect only at

his death.

Also read;

1. Cock v Cooke (1866) LRIP & D 241

2. Milnes v Feden (1890) 15 P.D 105.

3. Re Meynell (1949) WN 273

4. Robertson v Smith and Lawrence (1870) 2 ALLER 43.

5. Goodman v Goodman (1920) P 261

1.3 The requirement of writing a Will and the contents of a Will

With the exception of privileged wills for which the Succession Act under S.53 uses the

word “may,” wills must generally be in writing in order to be enforceable.

Two points are worth noting in this requirement of writing:

i. The writing may be embodied in more than one document. It is a usual scenario that

the sum total of a testator’s intentions are always drawn out of a single document but

it is not uncommon for a testator to employ two or more documents, This could be in

form of a codicil in which the testator may find it necessary to alter the contents of the

original will. However, it is worth noting that the law strictly considers that a testator

35
 should only have one Will. As was pointed out in Douglas-Menzies v Umphelby (1908)

AC 224, where a person’s testamentary wishes are set out in two or more documents,

‘it is the aggregate or the net result that constitutes his will.’ In some instances, where

two or more wills are found, and it does not appear clearly which was the former or

latter, both are void. But if two codicils are found, and it cannot be known which was

first or last, and one and the same thing is given to one person in one codicil, and to

another person in another codicil, the codicils are not void, but the persons therein

named ought to divide the thing between them. But if dates appear to contradict on

the wills and codicils, the latter will is always to prevail and revoke the former; as also

the latter codicil, as far only as it is contradictory to the former; but as far as the codicils

are not contradictory, they are allowed to be both in force.

ii. The law does not prescribe the contents of the Will.

What is of concern in the law of Succession is for the Will to dictate the manner in

which the testator’s property is to devolve on his death. The testator(ix) may in

addition if he or she so wishes use their will as a medium for;

a) Giving expression to his views on a variety of matters particularly the conduct of

persons who would ordinarily be expected to benefit from his will

b) Appointing executors and providing for their functions;

c) Appointing guardians for the testator’s infant children.

d)Arranging for the payment of debts and the discharge of other obligations due from

the testator.

e) nominating beneficiaries under any testamentary power of appointment exercisable

by the testator and

36
 f) making provision for the testator’s funeral and other matters relating to the disposal

of his body.

Whatever directions the maker chooses to issue his or her will, the law does not impose a

particular form to follow when making a will. As Buckley LJ put it in Re Berger (1989) 1

AllER 591, ‘English law does not require a document which is intended to have

testamentary effect to assume any particular form or to be couched in language technically

appropriate to its testamentary character.’

A will may therefore consist of a simple home-made document framed in familiar everyday

terms. Thus, for example, a will which simply read ‘All for mother’ was recognised as valid

in Thorn v Dickens (1906) WN 54.

1.4 Formalities of a valid will

Section 50 of the Succession Act provides for the statutory formalities governing the due

execution of a will.

 The requirement of writing

As already noted, with the exception of privileged wills, the law provides for every will to

be in writing.

Even S.50 stipulates that a will may be in writing, the law does not insist that the writing

must be embodied in a single document as already discussed above. Documents may be

incorporated by reference as provided for under S.51 of the Act.

The section makes mention of writing but does not limit the writing to be done personally

by the testator(ix).

The will may be written wholly or in part by another person and signed by the testator.
37
A will may be written wholly or in part by another person, and signed by the testator.

A will may be written on any material. Read examples of In the Estate of Murray (1963)

CLY 3621, where a will was written on a piece of cardboard and Hodson v Barnes (1926)

43 TLR 71 where a will was written on an egg shell.

It is, however, customary for the writing to be set out on paper. The statutory format

recommended is provided for in the Fourth Schedule of the Succession Act.

Wills are not required to be framed in any particular type of language as emphasized by

Buckley LJ in Re Berger (1989) (supra).

 The testator(ix)’s signature

A further requirement imposed by S.50 of the Act is that the will should be signed by its

maker and where they cannot do so, it shall be signed by some other person in his or her

presence and by his or her instruction.

This however means that the person may either sign in the testator’s name as was the case

in Smith v Harris (1845) 1 Rob 262, or in their own name as happened in In the Goods of

Clark (1839), 2 Curt 329.

The signature or mark of the testator or the signature of the person signing for him or her

shall be so placed that it shall appear that it was intended thereby to give effect to the

writing as a will.

This means that the signature can theoretically be placed anywhere on the document so

long as it is apparent from the position that it is intended to give effect to the will.

38
As an alternative to directing another person to sign on his behalf, the testator may sign

the will himself, but in so doing rely on another person to guide his hand along the paper,

especially where he is blind or seriously ill.

Although the common practice is for the testator to write his name on or affix his signature

to the will, the courts have demonstrated considerable flexibility in determining what

suffices as the testator’s signature.

Where a will runs into several pages, the testator is not required to sign each page.

Wednesday 19th May 2021

A signature on one of the pages will be valid provided all the pages are sufficiently

connected or attached at the time of execution. Re Little (1960), for instance, the testator’s

will was contained on five pages and he signed the fifth page which was covering the other

four. The Court held that at the time of execution all the pages were sufficiently connected

to validate the entire will.

In the In the Goods of Mann (1942) 146, the sheet of paper containing the testatrix’s will

was not signed by her but was put in an envelope on which she wrote ‘the last will and

testament of JCM.’ It was held that there, was a sufficiently close relationship between the

envelope and the will to justify treating the envelope as a page of the will and holding

that by putting her name on the envelope the testatrix had effectively signed the will.

 The requirement that the testator must sign in the presence of the witnesses

In order for a will to be duly executed, the Testator(ix)’s signature must be witnessed in

the manner stipulated in S.50(c), which requires the Testator either:

39
(i) To sign the will in the presence of two witnesses both being present at the same

time; or

(ii) To acknowledge his signature in the presence of such witnesses.

The presence of these witnesses provides a useful safeguard against forgery and the

exertion of undue influence.

In this context it is not enough for the witnesses to be in the be same vicinity as the

testator when he signs the will. The witnesses must actually have the opportunity of

observing the testator in the act of signing. As Barnes LJ explained in Brown v Skirrow

(1902) P 3: “You cannot be a witness to an act that you are unconscious of; otherwise,

the thing might be done in ballroom 100 feet long and with a number of people in the

intervening space. In my view, at the end of the transaction the witness should be able

to say in truth “l know that (T) has signed this document.” In this case, a testatrix took

her will to a grocer’s to be excited. She asked two shop assistants to act as witnesses.

As she was signing the document, one of the assistants was busy serving a customer.

The will was held invalid.

In Administrator General v Bukirwa and another C.S N0.2018 of 1992, the Court held

that in all administration causes where a will has been executed in suspicious

circumstances, the best evidence which the court will accept concerning its due

execution will be from one of the witnesses who attested to the will except in cases

where they cannot be found or they are dead. But even where the witnesses cannot be

traced, the Court will look for some evidence from other people who were present

and witnessed the execution.

40
 Due to the legal requirement that the witnesses are expected to ‘see and be conscious

of the act done and be able to prove it in evidence.’ (per Lushington LJ in Hudson v

Parker (1844)1 Rob Ecc 14, it follows that:

a) A blind person cannot ordinarily be a witness, since he has no visual perception of

the Testator’s act of signing of acknowledging the will. Thus, in Re Gibson (1949) 2

ALL ER 90, for instance, a codicil failed because one witness was blind. However, it

is arguable that where the will or T’s signature is written in braille, it can be

acknowledged to a blind witness who is able to read such writing;

b) A witness must in the words of Lushington J be present ‘mentally as well as bodily.’

For example, he must not be asleep or intoxicated or of unsound mind when the

will is being executed. The provision does not however require that more than one

witness be present at the same time.

 The requirement that the witnesses must also sign the Will

It is not express under S,50 that a witness must sign. But the process of attestation

mentioned in this provision includes signing. They must do so after the testator has signed.

It is therefore possible for a will to be invalidated by the fact that it was signed by a witness

before the testator had signed in the presence of both witnesses or acknowledged his

signature. Read John Ntanda Masanyalaze v Rita Nanono and 4 Ors CA No.86 of 2008.

The Testator must also be aware that the witnesses are signing the will. However, if for

some reason, the testator is so incapacitated for them to be conscious of this fact, the

signature is invalid. It is worth noting that the exception to this is periodical lapses of

consciousness which will not invalidate the signature.

41
Awareness in these circumstances means that the testator must see the witnesses in the

process of signing the will.

The witnesses need not sign the will in the presence of each other for the will to be valid.

1.5 Incorporation of Documents

Section 51 of the Act provides for a situation where a testator in a will or codicil duly

attested refers to any other document then actually written as expressing any part of his

or her intentions.

Such a document will be regarded as forming a part of the will or codicil in which it is

referred to. For the doctrine of incorporation by reference to apply, the following three

conditions must be fulfilled;

a) The document must be in existence at the time the will is executed. In Singleton v

Tomlinson (1878) 3 App Cases 404, the testator by will directed his executors to

sell four landed estates referred to in his will. Details of the same were set out in a

schedule signed by the testator, which bore the same date as the will and was

annexed to it. The witnesses were uncertain whether they had seen the schedule at

the time the will was executed and the Court held that there could be no

incorporation by reference since it had not been established that it was in existence

when the will was executed.

b) The document must be referred to in the will as being in existence. Unless the will

describes the relevant document in terms which signify that it is in existence at the

time the will is executed, it cannot be incorporated into the will.

42
 c) The document must be clearly identified in the will. There cannot be incorporation

by reference unless the terms used in the will to describe the document are clear

enough to enable it to be identified.

Friday 21st May 2021

1.6 Capacity

A will is invalid unless made by a person who has capacity to do so. Minors and persons

of unsound mind are incapable of making a valid. S.36 of the SA sets out the testamentary

capacity.

(a) Age

Minors are deemed to lack the capacity to make a will and this lack of capacity is statutorily

entrenched in S.36(1) of the Succession Act. Scholars have advanced two major reasons

why a minor is denied testamentary capacity.

This is so because; (i)that although they may know exactly what the function of a will is

and exactly what will they wish to make, they may nevertheless lack the discretion to make

a responsible will. (ii) That they are at an age where they may be more easily subjected to

undue influence by a relative or close friend than an adult might be.

(b) Mental state

Persons of unsound mind are incapacitated from making a valid will, although this doesnot

mean that such persons are destined to die intestate. If such a person makes a will before

his mind becomes afflicted or makes it during a lucid interval, such a will is valid.

43
The test of mental capacity to make a will is not directly linked to mental disorder, but to

the testator’s capacity to understand the nature of the will making

In the case of Banks v Goodfellow (1870) LR 5 QB 549, Cockburn CJ set the test in the

following terms;

“he must have a sound and disposing mind and memory. In other words, he ought to be

capable of making his will with an understanding of the nature of the business in which he

is engaged, a recollection of the property he means to dispose of and of the persons who

are the objects of his bounty and the manner it is to be distributed between them.”

The test stated in Banks v Good fellow (supra) was cited and applied with approval by the

Tanzanian Court of Appeal in Vaghella v Vaghella (1999) 2 EA 351 where it was stated

that the validity of a will derives from the testamentary capacity of the testator and from

the circumstances attending its making.

This test requires 3 things of the T;

 He must have a sound mind enabling him to understand the nature of the act of making

a will and its effects. He would lack a sound mind if he does not understand what he

is precisely doing either because he is of low mentality or is under the influence of a

drink or drugs.

 He must have a sound memory enabling him to have a recollection of the property of

which he is disposing.

 He must have a sound understanding. He should appreciate the moral claims upon

him; otherwise, the omission to adequately cater for any dependant could attract an

application under S.38 of the Act. He should be able to remember the persons he is

44
morally bound to provide for having regard to their relationship with him. In Harwood

v Baker (1840) 3 Moo PC 282, a T executed his will on his death bed and left all his

estate to his second wife to the exclusion of other family members. He was at the time

suffering from a disease that affected his brain. It was held that based on the evidence,

he did not have sufficient recollection of his other family members and therefore

capacity to make the will.

(c) Insane delusions

The fact that the T is labouring under insane delusions is not necessarily fatal to the

validity of a will so long as the delusions leave the T’s power of understanding

unimpaired. However, the approach of the courts to construing insane delusions as a

vitiating factor differs depending on the impact of the delusion. According to the court

in the case of Dew v Clark (1826) a person suffers from an insane delusion if he holds

a belief of a particular matter which no rational person could hold and the belief cannot

be eradicated from his mind by reasoning with him for example where one holds the

erroneous belief that he is being bewitched.

An insane delusion will only affect the T’s capacity to make a will if it in some ways

affects the way he disposed of his property. In Dew v Clark (Supra) the T made a will

which was rational superficially, but which excluded his daughter from benefit. The

daughter showed by way of extrinsic evidence that the testator had an insane aversion

of her. He had refused to see her for the first three years of her life and he had made

her sleep with an insane woman. In Banks v Good fellow (Supra), the T believed that

evil spirits and a person who was already dead were pursuing him. The court found

that although the T suffered from an insane delusion the same did not affect his
45
 testamentary capacity as the delusion did not affect the way in which he disposed of

his property by will. The will was held to be valid.

Sometimes the delusion may only affect he validity of a part of a will. In such a case,

probate will be granted to such parts of the will as are not affected by the delusion.

Case in point is Re Bohrmann’s Estate (1938) 1 AII ER 24

Tuesday 25th May 2021

1.7 Knowledge and Approval

In addition to having testamentary capacity, a testator must know and approve the

contents of his will. A ‘T’ knows the contents of the will if he is aware and understands

the terms of the will; He need not understand the precise legal effect of the terms. A

‘T’ approves the terms of the will if he executes it in those terms on his own volition

and not because of coercion or undue influence of another.

The knowledge and approval of the ‘T’ may also be absent because of mistake or fraud.

This requirement is of particular significance when the will is drawn up for the T by a

third party for example a friend, a relative or a professional person such as an advocate.

Gicheru JA stated in John Kinuthia Githinji v Githua Kiarie and Ors, Nairobi Court of

Appeal CA 99/1988 that it is essential to the validity of a will that at the time of its

execution the ‘T’ should know and approve of its contents: for where a will, rational

on the face of it, is shown to have been executed and attested in the manner prescribed

by law it is presumed, in the absence of any evidence to the contrary, to have been

made by a person of competent understanding, but if there are circumstances in

evidence, which counterbalance that presumption, the decree of the court must be

against its validity.

46
The law on knowledge and approval is S.47 of the SA which provides that a will caused

by fraud or coercion, or by such importunity or mistake is void.

a) Time of Knowledge and approval

The point at which the ‘T’ must know and approve the contents of his/her will is at the

time of execution. There is an exception to this general rule set out in the case In the

Estate of Wallace (1952) 2 TLR 925, that a will may be valid despite lack of knowledge

and approval at the time of execution so long as: one, the T knew and approved the

contents of the will at the time at which he gave instructions to the advocate to draft

the will. Two, the will was prepared in accordance with his instructions; and at the

time the will was executed the ‘T’ understood that he was executing a will for which

he had earlier given instructions. In this case, the ‘T’ who was seriously ill had written

and signed a document entitled “last wish.” At the time of execution, he knew and

approved the contents of the document. A solicitor then prepared his will in accordance

with the document. At the time when the ‘T’ executed the will a day before he died,

he did not know and approve the contents of the will that were read over to him. It

was held that the will was valid.

b) Suspicious circumstances

Where a person who writes or prepares the will takes a substantial benefit under the

will, this will be regarded as a suspicious circumstance. In Vijay Chand v Public Trustee

Nairobi Court of Appeal Civil Appeal 63/1984, Platt JA stated that where the pro-

pounder of the will is the principal beneficiary under it, it is the duty of the court to
47
scrutinise the evidence of the pro-pounder vigilantly and jealously following the contra

proferentum rule. Similarly, where a person suggested the terms of the will to the

testator, which is other than writing the will himself and takes that the testator along

to the advocate of that person’s choice the circumstances will be regarded as suspicious.

In Barry v Butlin (1838) 2 Moo PC 480, a testator made a will at the home of his

Solicitor, in the Solicitor’s hand writing and left a ¼ of the estate to the solicitor and

the rest to friends. The testator’s son challenged the will on the grounds of (among

others) suspicious circumstances, lt was held that the circumstances were on the face of

it suspicious, but the suspicion was dispelled by two factors: the fact that the will was

executed before two independent witnesses and the fact that the testator’s son was

excluded from the will because of his criminal conduct.

In Mwathi v Mwathi and another [1995-1998] 1 EA 229, the deceased died at sixty-

five. He married and left behind no wife or children. A brother and two sisters survived

him. He owned real property. Two days before his death; he made a will under the

terms of which he bequeathed the property to the brother. According to the brother,

the deceased dictated his wishes and the brother reduced them into writing. The will

was then thumb-printed by the deceased and witnessed by, among others, the brother

and his wife. Following the death of the deceased, the brother applied for grant of

probate of the will of the deceased and letters of administration were issued to him.

The sisters sought a revocation of the grant on the grounds of suspicious circumstances.

It emerged that shortly before the execution of the alleged will, the brother had

removed the deceased from their mother’s house to his (the brother’s) house for

baptism and then shifted him back. It also emerged that when he (the brother) wanted
48
the deceased to dictate and execute the alleged will he moved the deceased again from

their mother’s house to his own house. At the same time, the brother exhibited

considerable animosity towards the sisters whom he prevented from entering his house.

At the time, the deceased allegedly dictated the will he was quite ill and could not walk

without support. It was held by the High Court that the circumstances excited suspicion

and that the will was therefore invalid. The grant was revoked. An appeal to the Court

of Appeal on this aspect of the High Court decision was rejected with the C/A stating

that the brother was not only the author of the will but also the sole beneficiary under

it he had a duty to do everything above board.

c) Mistake

The knowledge and approval of the testator may be absent because of a mistake on

the part of the testator or of a person employed by him to draft the will. The mistake

may relate to part or the whole of the will. A mistake relating to the whole will renders

it invalid, while a partial mistake may be corrected or otherwise that portion of the

will revoked.

In Re Morris (1970) 2 WLR 805, the testatrix made a will but after sometime decided

to alter some of its provisions. She instructed a solicitor to prepare a codicil to effect

the changes. The solicitor made a mistake while drafting and inserted an erroneous

figure. The testatrix executed the codicil upon merely passing a glance through it but

without reading the contents. The executors brought an action asking them to be

allowed to use the right figure instead of the erroneous one. The court allowed them

to do so.

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If the testator does know and approve the contents but is mistaken as to the legal effects

of the words, the will be considered valid and admissible for probate. In Collins v

Elstone (1893) P 1, the testatrix was given incorrect information as to the extent to

which a revocation clause in her will operated but she executed the will. It was held

that the will was valid and admissible to probate, as she knew about it and had

approved the contents, the words notwithstanding.

d) Coercion or Undue influence

The knowledge or approval may be absent owing to coercion or undue influence being

exercised on the testator. Undue influence occurs when a testator is coerced into

making a will or some part of it that he does not want to make. Undue influence is

proved if it can be shown that the testator was induced or coerced into making

dispositions that he did not really intend to make. It is common where the T is of weak

or impaired mental capacity or in failing health. The circumstances in the case of

Mwathi v Mwathi(supra) demonstrate the exercise of undue influence or coercion on

a deceased person. At the High Court Bosire J (as he then was) said: “The Petitioner

was obliged but did not demonstrate that the deceased freely and consciously dictated

and executed the alleged will. He did not call evidence to exclude the possibility of

having unduly influenced the deceased to will his property to him.”

A distinction should be drawn between undue influence and persuasion. Lord Penzance

in Hall v Hall (1869) LR 1 P and D 481 brought out the distinction as follows:

50
“Persuasion is not unlawful, but pressure of whatever character if so exerted as to

overpower the volition without convincing the judgement of the testator will

constitute undue influence though no force is either used or threatened.”

In Wambui and Another v Gikonyo and others [1988] KLR 445, the deceased who was

illiterate gave instructions regarding the disposal of his assets upon death, which

instructions were reduced into writing by one of the people present. He distributed his

land to his wife and children including the appellant, a married daughter. The

document was thumb printed by the deceased in the presence of two witnesses who

did not however sign it. When the appellant was told by her father of the gift, she said

she would not believe it unless another document was made to show her father’s good

faith. The deceased caused another document to be prepared which he thumb printed

after it was signed by the attesting witness; the appellant sought a grant of probate on

both documents. The other beneficiaries alleged that the same was not valid, as

coercion had been exercised on the deceased to make a will in the appellant’s favour.

It was held that there was no coercion. The evidence suggested persuasion only, yet

persuasion is not unlawful. The Court of Appeal said that in the second document the

deceased only confirmed the earlier document was he distributed his estate in the

second document as per the terms of the first.

Coercion amounting to undue influence can take various forms; actual physical force

or the incessant talking to a sick, frail or elderly testator. The burden of proof lies with

the person alleging coercion or undue influence. In the Matter of Philly, Nyarangi

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Otundo (deceased) Nairobi High Court Succession Cause Number 2078 of 1997, a will

was challenged on the grounds that it was a forgery and the executors named in the

will were strangers to the family of the deceased. The will had been executed by the

deceased while on her sick bed. The court found that the deceased had made the will

freely, and that the applicants hadnot proved their case.

In the Matter of the Estate of James Ngengi Muigai Nairobi High Court Succession

Cause No 523 of 1996 (Koome J), undue influence was alleged in the matter because

it was the eldest son of the deceased who suggested that he should write a will and got

the family priest to convince the deceased to make the will. The objectors also pointed

out that the deceased was living in the house of the said eldest son and therefore the

eldest son must have driven the deceased into making the will in the manner he made

it. The Court was not convinced that the eldest son had exercised undue influence on

the deceased as the deceased had previously donated a power of attorney to the son

to act on his behalf during his lifetime. The deceased was convinced by a respected

citizen, a family priest to write the will. The advocate who drafted the will visited the

deceased three times to discuss the will, and that it was normal for an elderly person

to live with their eldest son.

Wednesday 26th May 2021

Undue influence is common in confidential relationships, particularly those of a

religious nature. In Parfitt v Lawless (1872) LR 2 P and D 462, the testatrix left her

residuary estate to a Roman Catholic Priest who was her confessor and who lived with

her and her husband. It was alleged that the confidential relationship between them

52
gave rise to a presumption of undue influence. It was held however that there was no

positive evidence of undue influence.

In Re Harden [1959 CYLB] 3448, The Times 30 June 1959, a testatrix left property to

a spiritualist medium after he allegedly transmitted messages ‘from the other side’ to

her as to what she should do with her property upon death. The messages were dictated

to her and resulted in her executing two wills that made the medium a substantial

beneficiary of her estate. It was held that the medium had taken control of the testatrix’s

mind to the extent that she had written what he wanted rather than the record of her

mind. The will was invalidated on the ground of undue influence.

e) Fraud

Knowledge and approval will also be absent if the testator makes a gift by will or

excludes a person from benefit as a result of false statements which have been made

about an intended beneficiary’s character or conduct. In the Estate of Posner (1953) P

557 a gift made to a beneficiary who fraudulently misrepresented herself to be the

testator’s wife was invalidated.

In Pauline Ndeta Kinyota Maingi v Rael Kinyota Maingi Nairobi C/A Civil Appeal No

66/1984, the deceased appointed a woman he described as his wife the executrix and

trustee of his will. He had married the woman under the Statute while still married

under customary law to the first wife. He also stated falsely that he was divorced from

his first wife and purported to disinherit her completely. The Court of Appeal held that

the purported statutory marriage was null and void by virtue of the Marriage Act and

the African Christian Marriage and Divorce Act, because the deceased was already

married under customary law, he could only lawfully contract another marriage
53
 according to customary law under whose procedure a marriage is potentially

polygamous. It was further held that the appointment of the said woman as an

executrix was both fraudulent and illegal in the circumstances, as the testator relied on

deliberate falsehood. The appointment of the executrix and trustee was therefore void

for fraud and illegality rendering the executorship impossible.

f) Forgery

A Will will also be void if it forged. In such a case there is lack of knowledge and

approval by the testator of the contents of the will. The forged will is not the will of

the testator.

In Elizabeth Kamene Ndolo v George Matata Ndolo (1995) LLR 390, the C/A stated

that the charge of forgery or fraud is a serious one, the standard of proof required of

the alleger is higher than that required in ordinary civil cases, that is proof upon a

balance of probabilities, but certainly not beyond a reasonable doubt as in criminal

cases.

In the Matter of Estate of James Ngengi Muigai(supra), the allegedly forged will was

submitted to the Criminal Investigations Department at the request of the objectors

following a criminal complaint. The document was subjected to an examination and

the alleged forged signature of the deceased was compared with the deceased’s known

signatures. The expert document examiner concluded that the signature on the

document was that of the deceased. The Court held that the will was not a forgery.

1.7 Revocation, Alteration and Revival of Wills

Wills once made are liable to change by their maker, either through alteration,

revocation or revival in cases where there has been a revocation.

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1.7.1 Revocation

All wills are revocable. The freedom to make a will extends to cover the freedom

to revoke it. A will can be revoked voluntarily or involuntarily.

Voluntary revocation namely express revocation, revocation by some duly

executed writing and revocation by destruction. These methods require mental

capacity to the same degree for the creation of a will and the intention to revoke.

Revocation by marriage is the only involuntary method of revocation; this arises by

operation of law and it therefore does not require that the testator had mental

capacity or intention to revoke.

a) Express Revocation

S.57 of the SA provides for the revocation of a will or codicil by another will or

codicil declaring an intention to revoke it. Professionally drawn wills invariably

contain an expression revocation clause taking this form: “l revoke all former wills

and testamentary dispositions heretofore made by me.”

It is not sufficient to say that “This is the last will and testament made by me.” This

would not be an express revocation clause. It was held in Re Hawksley’s Settlement

[1934] Ch 384 that the description of the will as the testator’s last will was not

sufficient for an express revocation clause.

Revocation may be of whole or part of the will or codicil. A codicil is often used

when only parts of the will are to be revoked.

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 b) Revocation by some duly executed writing

It is contemplated by S.57 that some other writing declaring intention to revoke a

will and duly executed can substantially revoke a will.

In Re Sparklan’s Estate (1938) 2 AII ER 345, a letter signed by the testator and duly

attested, addressed to a bank manager instructing him to destroy a will by a testator

was held to have effectively revoked the will. The will was revoked as soon as the

letter was duly executed.

c)Revocation by Destruction

Section 57 provides for Revocation by burning, tearing or otherwise destroying of

the will or codicil by the testator with the intention of revoking, or by some person

in his or her presence and by his or her direction. Revocation by destruction involves

two distinct elements; (i)the actual destruction of the will and (ii) the intention to

revoke the will. Both elements must be present.

i) Actual Destruction

This must be by the physical act of burning, tearing or otherwise destroying the will.

Otherwise destroying has been construed using the ejusdem generis rule to require

that the acts of destruction are of the same kind as burning, tearing.

In Cheese v Lovejoy (1877) 2 P and D 251, a testator cancelled his will by striking

out its clauses and his signature with a pen and then writing at the back of the will

“All these are revoked.” He threw the will in a pile of waste paper in the corner of

the room where his house cleaner retrieved it and kept it in a kitchen drawer until

the testator’s death eight years later. It was held that he did not amount to

56
“otherwise destroying.” Although he intended to revoke the will, it had not been

destroyed and it was admitted to probate.

In Re Morton’s Goods (1887) 12 P and D, the testator’s signature was completely

scratched out. It was held that it amounted to otherwise destroying.

Where the actual destruction of part of a will results in the revocation of a whole

or part of the will depends on the part actually destroyed. If the destroyed part

impinges on the whole will then the whole will will be revoked. For example, the

destruction of the part of the will containing the signature.

To establish actual destruction, it must be proved that the acts of destruction were

completed by the testator. In Doe D Perkes v Perkes (1820), 3 B and Ald 489, the

testator tore his will into four pieces in a rage with one of the beneficiaries named

in the will. He thereafter became calmer and put the pieces together. It was held

that there was no actual destruction as the testator had not completed all that he

had intended to do by way of destruction.

Destruction must be by the testator or by someone in his presence and by his

direction;

The acts of destruction must be by the testator or by some other person in the

testator’s presence and under his direction.

In Re Dadd’s Goods (1857) 209 a testatrix on her deathbed expressed a wish to

revoke a codicil. Her executor and a neighbour went out of her presence into the

kitchen and burnt the codicil. It was held that there was no actual destruction.

If the destruction is done by some other person, it must be done in the presence of

the testator and by his direction. In Gills v Gils (1909) at 157, the testator’s wife tore
57
up his will in a fit of temper and it was held that there was no actual destruction as

the will was not destroyed under the testator’s direction.

A destruction of a will by someone else must be done in the presence of the testator,

Where instructions are given to an advocate by a client asking the advocate to

destroy the client’s will in his possession and then the advocate destroys the same

in the absence of the client, the act of destruction in such a case does not amount

to the actual destruction of the will and there would be no revocation of the subject

will since the destruction was done in the client’s absence and at any rate without

his direction.

ii) Intention to revoke

With regard to intention to revoke, the ‘T’ must have the same capacity to revoke

as is necessary to execute a valid will. In Re Aynsley [1973] 1 Ch 172 a testatrix who

was old and confused tore her will into forty pieces. The Judge put the pieces

together in a one-hour operation. It was held that the testatrix lacked mental

capacity to revoke and the will was therefore still valid.

The destruction must not be accidental. If a fire at home destroyed a will, the same

would not amount to revocation by destruction, as there would be no intention on

the part of the testator to revoke the will by destruction. The happening or

occurrence of the accident negates intention to destroy the will.

Presumption concerning revocation by destruction

In some cases, a will may be lost or found torn or mutilated after the testator’s

death. In such cases, the will is presumed to have been destroyed by the testator

with the intention of revoking it in cases where the will was last known to be in his
58
possession. However, in cases where it is not possible to point to the last

whereabouts of a will to the testator, then the presumption that it was intended to

be destroyed with the intention of revoking it will not arise.

The presumption can be rebutted by evidence to the contrary by proving on a

balance of probabilities that the testator did not seek to revoke the will but that the

will was actually stolen, lost or misplaced.

In Re Jones [1976] 1 AII ER 593, the appellant challenged a will made by the testatrix

who was their aunt in which she had left a bequest to the respondents who were

her favourite nieces. At the time the will was made, the respondents used to visit

and help the testatrix. In appreciation, the aunt left her house and land to them

under the will. On learning of the contents of the will, the respondents stopped

visiting her and giving her any support. The testatrix apparently in retaliation,

decided to revoke her will to disinherit them of the bequest. She informed her

lawyer and someone else about the intention, but she died before her instructions

could be carried out. After her death, a copy of the will was found in her house

mutilated at the part in which she had bequeathed the house and land to the

respondents. She had also cut out her signature from the will. It was held that the

actions of the testatrix indicated an absolute intention to revoke the will and the

same was effectively carried out as characterised by the act of destruction. The effect

was that the deceased died intestate.

d)Revocation by Marriage

Section 56 provides for this revocation of marriage. Generally, the marriage of the

‘T’ automatically revokes any will or codicil made prior to the marriage. The reason
59
for this rule is that marriage and the birth of issue to the testator, constitutes an

important change of the circumstances of the testator and it is equitable in the event

for the person’s estate to devolve on an intestacy rather than under a will made

before marriage and the birth of the children.

Further, the SA provides in S.3 that no person shall by marriage, acquire any interest

in the property of the person whom he or she marries, nor become incapable of

doing any act in respect of his or her own property which he or she could have

done if unmarried.

It is important to note that a will will not only be revoked by a valid marriage but

also a voidable marriage since a voidable marriage has capacity to either became

valid or subsequently annulled. However, a void marriage will not affect an earlier

will.

In Mette v Mette (1859) 1 Sw & Tr 416, where the testator married his wife’s sister,

the marriage though celebrated out of the English jurisdiction, was void for falling

within prohibited degrees of affinity and therefore was held not to revoke his earlier

will.

Conditional Revocation

Once an intention to revoke is established, it is necessary to decide whether the

intention is absolute or conditional. It is a question of fact in the case of actual

destruction but a matter of construction in the case of express revocation. If the

intention is conditional, the revocation does not take effect until the condition is

fulfilled. This effectively means that where a testator revokes his will with the

60
 intention of making a new one and for some reason fails to make a new one, the

original will remains valid.

Where the court is satisfied that that the testator did not intend to revoke the will

absolutely, but merely revoked it as a first step towards making a new will. If the

intention is absolute, the revocation takes effect immediately.

Tuesday 1st June 2021

1.7.2 Alteration of Wills and Codicils

Section 58 of the SA provides for the alterations of wills.

Where the words of a will are obliterated or altered in some ways or interlineations

are made, the effect of these changes depends on whether the alterations were

made before the execution of the will or after.

An alteration made before the execution of the will, is valid so long as it is final

rather than deliberate. In Re Bellamy’s Goods, if it is in pencil, it is presumed to be

merely deliberative and without evidence, to the contrary it would not therefore

be valid.

In Cooper v Bockett (1846) 4 Moo PCC 320, the court stated that with respect to

alterations made before the execution of the will, there is a presumption that they

have been made after execution unless the alteration is to fill in a blank space in the

will. Either extrinsic evidence or evidence from the will itself is admissible to rebut

61
the presumption. In view of the presumption, it is advisable in practice to execute

an alteration even if it has been made before the execution of the will.

In Kell v Charmer (1856) 23 Beaver 195, it was held that where the alteration is

made to fill a blank space in the will, the presumption is that the alteration was

made before the execution of the will.

Alterations made after execution of the will are invalid unless they have been

executed. Under S.58, if the alterations are made after the execution of the will,

they would be invalid unless they have been duly executed in accordance with the

formalities required for the execution of the will. The formalities are complied with

if the testator and the witnesses place their initials in the margin or on some other

part of the will opposite or near to the alteration or at the foot or end of, or

opposite to, a memorandum referring to the alteration and written at the end or

some other part of the will.

In Re Horsford’s Goods [1874] LR 3 P and D 221, it was said that where an

unattested alteration has been made after the execution of the will the precise effect

depends on whether the original wording is apparent or not apparent. The original

wording will be apparent for this purpose if the original words can be deciphered

by an expert through natural means. This means that the original words can be

ascertained from the face of the will without physically interfering with the will.

According to the decision in the case of Re Hamer’s Estate (1943) 113 LJP 31, where

an unattested alteration has been made and the words are apparent the will is

admitted to probate with the original wording ignoring the alteration. Where an
62
 unattested alteration has been made and the original words are not apparent the

general rule is that probate of the will is granted with a blank space.

1.7.3 Revival of Wills

Section 60 provides for the revival of wills. A testator may revive a will, codicil or

anyone of them that has been revoked, provided that it has not been destroyed.

Revival usually involves either the re-execution of the will with proper formalities

or a duly executed codicil. In both cases there should be an intention to revive the

revoked document.

Such intention is deciphered from the circumstances of the case, for example, the

testator’s oral affirmation to that effect or his re-calling of the will from where it has

been kept.

A codicil is used to revive part of a revoked will, while a will which has been totally

revoked can be revived only by re-execution. It was stated in Re Hardyman [1925]

Ch 287, that the effect of a revival of a will or codicil is to make the same speak

from the date on which it was revived. As it speaks from the date of the revival,

references to persons in the will or codicil are to persons at the date of revival.

In Re Reeves [1928] Ch 351, the fact that the revival of the will speaks from the

date of revival also affects reference to property.

Wednesday 2nd June 2021

2. THE ISLAMIC LAW OF SUCCESSION

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 Islamic law was for a long time before colonialism, the law governing Muslims in

Uganda. The advent of colonialism saw the continued application of Islamic law to

Muslims especially on their personal law matters. The Succession Act of Uganda sought

to end this practice by providing a uniform code of succession applying to all residents

of Uganda.

The distributable estate of the deceased includes all rights to property, rights connected

with property and other related rights such as debts, compensation among others. The

rights arising from the estate are those that are capable of being satisfied out of the

estate. The residue after the payment of funeral expenses and the discharge of all

obligations and debts is distributed according to Quranic principles.

2.1 General Principles of Islamic law in Succession

Inheritance is a matter of great importance to Muslims and for this reason, the law of

succession is a crucial aspect of lslam. The lslamic legal term for inheritance is mirath

which means the inheritance to be shared from the property of the deceased among

his successors, this law is scientific and exact. It guides as to who is inherited, inherits

and in what shares. The distributable property will be all the property that the deceased

owns, without distinguishing between personal and family property.

The main criteria for inheriting property in lslam are relationship by blood and

marriage. Islamic law recognises both testate and intestate succession. The quranic rules

also give a Muslim the freedom to dispose of his property during his lifetime.

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 Only a third of the deceased person’s estate can be disposed of by will. The remaining

two thirds are distributed under the rules of intestacy which are laid out in the Quran

which fixes the shares allocated to the persons identified in the Quran as heirs.

In Chelang’a v Juma [2002] 1 KLR 339 (Etyang J) it was stated that Islamic law has

fixed the shares of each heir and the said shares cannot be modified, added to or deleted

by anyone. The heirs include the surviving spouse, parents and children to the deceased.

Grandparents will usually inherit if heirs in the nuclear family cannot inherit for

whatever reason. Generally, both sons and daughters are entitled to a share, although

sons take a share larger than that of daughters.

The rules regulating succession in lslam are founded on the principle that the deceased’s

property should devolve on those who by reason of consanguinity or marital reasons,

have the strongest claim. Where there are claimants and it is difficult to settle the claims,

the estate would be distributed among the claimants in such order and proportions as

are in harmony with the natural strength of their claims.

2.2 Testate Succession

The writing of a will is permitted and even encouraged in lslamic law. However, the

testamentary capacity of a Muslim is subjected to two limitations, namely; he can only

bequeath 1/3 of his property by will and even then, he cannot give any part of the 1/3

to his heirs as stated in Re Estate of the Late Sulemian Kusundwa [1965] EA 247, The

1/3 can only be willed to outsiders or strangers, but the willable 1/3 may be bequeathed

to the testator’s heirs with the consent of heirs.

Testamentary power is exercisable by any Muslim who is sane, rational and above the

age of 15.
65
A will is vitiated by undue influence or fraud and can be revoked at anytime by the

testator before his death or by the operation of the law.

In Mohamed Thabet Ali Maktari v Mohammed Rageh Mohammed Saleh Maktari and

Others [1966] EA 35, under lslamic law, Sir Clement de Lestang stated that a will may

be made either orally or in writing. It does not have to take any particular form. If oral,

it must be made in the presence of two male adult Muslim witnesses. If it is in writing,

it need not be signed and if signed it need not be attested.

In W. B Keatinge v Mohamed bin Seif Salim and others [1929-30] 12 KLR 74 Thomas J

held that an oral will would require two male adult Muslim witnesses, but in the

absence of witnesses, the will would stand good if approved by the heirs.

The will of a Muslim need not be attested as the Quranic injunction regarding witness

is considered to be a mere recommendation, it is not mandatory. What really matters

is the intention of the testator and so long as the intention of the testator is reasonably

clear, the will takes effect.

In Mohamed Thabet Ali Maktari v Mohamed Rageh Saleh Maktari (Supra), it was held

that where the alleged will is neither written nor signed by the maker and its validity

depends solely on oral evidence the court should treat such evidence with caution and

act on it only if it reliable.

One third of the estate can be bequeathed to strangers, this can be to any person who

is capable of holding property, regardless of his religion. A bequest can also be made

to an institution or for a religious or charitable object that is not opposed to lslam. The

beneficiary must be alive or in existence at the time of the bequest and not necessarily

at the time of the testator’s death.

66
 The killer of the testator cannot inherit from the deceased, and a gift to the killer

therefore lapses. The death of a beneficiary before that of the testator automatically

results in the lapse of the gift.

Tuesday 8th June 2021

2.3 Intestacy

The other two-thirds that are not subject to testate succession are disposed of in

accordance with the rules of intestacy. The Quran contain rules for the disposal of

intestate property. It provides for inheritance by both male and female relatives of the

deceased and for a share for everyone entitled however small the estate as stated in

Quran Chapter 4, verse 7.

Under these rules, all kinds of property are subject to the Islamic law of intestacy, but

the issue of inheritance only comes up when the deceased has left some property. The

nearer relative precludes the distant relative from inheritance. The distribution in

intestacy is after the payment of debts and legacies.

The shares of the various heirs are fixed under the quranic rules of intestacy and cannot

be interfered with or exceeded.

The Quran Chapter 4 verse 11 gives the son a portion equal to that of 2 daughters. In

Juma bin Mwenyezagu v Mwenye bin Abdullah (1897-1905) 1 EALR 95, Hamilton J

stated that under lslamic law, a son is entitled to inherit the estate of his deceased father

on the ground of the acknowledgment of paternity only by the deceased. It was also

said the proof of the marriage of the son’s mother with the deceased is not necessary.

67
The fixed shares are laid down in the Quran for each of the deceased’s relatives. The

precise shares are specified as follows: for the widow (1/8th) and widower (1/4th), for

the father(1/6th), for daughters (1/2), for full and consanguine sisters (1/2) and for uterine

brother and sisters(1/6th).

If there are other daughters, their share is equivalent to two-thirds of the estate subject

to intestacy. If the only child is a daughter, her share is ½ of the estate available for

distribution in intestacy all this is in Quran Chapter 4 verse 11.

Each surviving parent is entitled to a sixth of the intestate’s estate if the deceased leaves

children. If there are, no children and the parents are the only heir; the mother takes

one third while the father takes the other 2/3s of the available estate. If, however, the

deceased is survived by parents but no children and siblings, the mother of the deceased

will take a sixth (Quran Chapter 4 verse 11)

Impediments to inheritance in Islam

These many be complete or partial. There are 3 general categories of persons who are

barred or excluded from benefit.

a) The first category is that of persons who are excluded from inheritance because of

their conduct or attributes, amongst these include the killer of the deceased whose

estate is the subject of inheritance. Homicide bars the killer absolutely from inheriting

the property of the victim.

In this first category, difference or change of religion is another consideration. A non-

Muslim may not inherit in intestacy. In Chelang’a v Juma [2002] 1 KLR 339 (Etyang J)

it was held that under Islamic law a non-Muslim cannot inherit the estate of a Muslim.

In this case a daughter and siblings of the deceased Muslim, who confessed to be
68
Christians were excluded from benefit because of their being non-Muslims. It was held,

however that the mother of the deceased who was a non-Muslim was nevertheless

entitled to a share of the estate under Islamic law as a dependant. It is however,

permissible for a Muslim to benefit a non-Muslim by will.

Slavery is another bar to inheritance amongst this first category of persons; this principle

was stated by the Justices Tomlinson, Russel and Reed in the case of Ahmed bin

Abdullah v Administrator of Native Estates [1924-1926] 10 KLR. It is noted that this is

of no relevance today since slavery has been outlawed.

b) The second category is potential heirs who are excluded from inheritance because

of the immediacy of certain other recipients who are closer to the deceased. The general

rule is that an heir who relates to the deceased through another, or who is remoter,

does not inherit if the latter are among the survivors. In the Matter of the Estate of

Robert Napunyi Wangila (Nairobi) High Court Succession Cause No 2203 of 1999

(Koome J), it was held that according to the principles of Islamic law, step-relations of

a Muslim are precluded and disqualified from inheritance in the deceased’s estate.

Illegitimate children have no right of inheritance under Islamic law. It was held on this

ground, inter alia, that the illegitimate daughter of the deceased in Chelang’a v Juma

(Supra) (Etyang J), whom the deceased recognised as his own and supported during his

lifetime, was excluded from benefit.

c)The third category is of heirs whose shares may vary, but who are not entirely

excluded from benefit. This is called partial exclusion whose effect is a wider distribution

of the property in smaller shares. A Father’s share depends on whether or not the

deceased wife is survived by any children. If the children survive, the wife, then the
69
father’s share is reduced from one-half to one-quarter of the net estate. A sister of the

deceased may be excluded from one-half to one third if there is another sister to join

her, but she will be excluded entirely if there is a son of the father of the deceased

among the heirs.

Administration of Estates

According to the principles of Islamic jurisprudence there was no administration but a

mere distribution of the estate by the heirs or by the State. The notion was that the

estate did not vest in the personal representative of the deceased or the State, but in

the heirs from the moment of the death of the deceased.

Administration of estates, in the sense of the recognition of executors or the

appointment of an administrator is alien to Islamic law or jurisprudence. The duty of

distributing the estate of the deceased lies with the State or the heirs. This is so because

the estate of a deceased Muslim vests upon the heirs immediately upon death.

Probate is generally not necessary for the admission of the will of a Muslim as evidence

and a grant of letters of administration in intestacy is unnecessary except for the

recovery of debts due to the estate of the deceased.

The duties of the administrator, whether the State or the heir, include arranging a

decent funeral and burial ceremony for the deceased, discharging the just debts from

the whole of estate, distributing what remains to the heirs and effecting and paying

legacies out of one third of what remains after his debts are paid.

In Administrator General v Abdul Hussein 4 EALR 26, (Hamilton J), it was stated under

lslamic law strict proof of claims against the estate of deceased persons is required. It is

also the duty of the administrator to distribute the residue among the deceased’s
70
 successors who are identified in the Quran and in accordance with the shares stated in

therein. The shares of the heirs are settled from the net estate after payment of funeral

expenses, debts and legacies.

Tuesday 8th June 2021

2.4 Intestacy

The other two-thirds that are not subject to testate succession are disposed of in

accordance with the rules of intestacy. The Quran contain rules for the disposal of

intestate property. It provides for inheritance by both male and female relatives of the

deceased and for a share for everyone entitled however small the estate as stated in

Quran Chapter 4, verse 7.

Under these rules, all kinds of property are subject to the Islamic law of intestacy, but

the issue of inheritance only comes up when the deceased has left some property. The

nearer relative precludes the distant relative from inheritance. The distribution in

intestacy is after the payment of debts and legacies.

The shares of the various heirs are fixed under the quranic rules of intestacy and cannot

be interfered with or exceeded.

The Quran Chapter 4 verse 11 gives the son a portion equal to that of 2 daughters. In

Juma bin Mwenyezagu v Mwenye bin Abdullah (1897-1905) 1 EALR 95, Hamilton J

stated that under lslamic law, a son is entitled to inherit the estate of his deceased father

on the ground of the acknowledgment of paternity only by the deceased. It was also

said the proof of the marriage of the son’s mother with the deceased is not necessary.

71
The fixed shares are laid down in the Quran for each of the deceased’s relatives. The

precise shares are specified as follows: for the widow (1/8th) and widower (1/4th), for

the father(1/6th), for daughters (1/2), for full and consanguine sisters (1/2) and for uterine

brother and sisters(1/6th).

If there are other daughters, their share is equivalent to two-thirds of the estate subject

to intestacy. If the only child is a daughter, her share is ½ of the estate available for

distribution in intestacy all this is in Quran Chapter 4 verse 11.

Each surviving parent is entitled to a sixth of the intestate’s estate if the deceased leaves

children. If there are, no children and the parents are the only heir; the mother takes

one third while the father takes the other 2/3s of the available estate. If, however, the

deceased is survived by parents but no children and siblings, the mother of the deceased

will take a sixth (Quran Chapter 4 verse 11)

Impediments to inheritance in Islam

These many be complete or partial. There are 3 general categories of persons who are

barred or excluded from benefit.

a) The first category is that of persons who are excluded from inheritance because of

their conduct or attributes, amongst these include the killer of the deceased whose

estate is the subject of inheritance. Homicide bars the killer absolutely from inheriting

the property of the victim.

In this first category, difference or change of religion is another consideration. A non-

Muslim may not inherit in intestacy. In Chelang’a v Juma [2002] 1 KLR 339 (Etyang J)

it was held that under Islamic law a non-Muslim cannot inherit the estate of a Muslim.

In this case a daughter and siblings of the deceased Muslim, who confessed to be
72
Christians were excluded from benefit because of their being non-Muslims. It was held,

however that the mother of the deceased who was a non-Muslim was nevertheless

entitled to a share of the estate under Islamic law as a dependant. It is however,

permissible for a Muslim to benefit a non-Muslim by will.

Slavery is another bar to inheritance amongst this first category of persons; this principle

was stated by the Justices Tomlinson, Russel and Reed in the case of Ahmed bin

Abdullah v Administrator of Native Estates [1924-1926] 10 KLR. It is noted that this is

of no relevance today since slavery has been outlawed.

b) The second category is potential heirs who are excluded from inheritance because

of the immediacy of certain other recipients who are closer to the deceased. The general

rule is that an heir who relates to the deceased through another, or who is remoter,

does not inherit if the latter are among the survivors. In the Matter of the Estate of

Robert Napunyi Wangila (Nairobi) High Court Succession Cause No 2203 of 1999

(Koome J), it was held that according to the principles of Islamic law, step-relations of

a Muslim are precluded and disqualified from inheritance in the deceased’s estate.

Illegitimate children have no right of inheritance under Islamic law. It was held on this

ground, inter alia, that the illegitimate daughter of the deceased in Chelang’a v Juma

(Supra) (Etyang J), whom the deceased recognised as his own and supported during his

lifetime, was excluded from benefit.

c)The third category is of heirs whose shares may vary, but who are not entirely

excluded from benefit. This is called partial exclusion whose effect is a wider distribution

of the property in smaller shares. A Father’s share depends on whether or not the

deceased wife is survived by any children. If the children survive, the wife, then the
73
father’s share is reduced from one-half to one-quarter of the net estate. A sister of the

deceased may be excluded from one-half to one third if there is another sister to join

her, but she will be excluded entirely if there is a son of the father of the deceased

among the heirs.

Administration of Estates

According to the principles of Islamic jurisprudence there was no administration but a

mere distribution of the estate by the heirs or by the State. The notion was that the

estate did not vest in the personal representative of the deceased or the State, but in

the heirs from the moment of the death of the deceased.

Administration of estates, in the sense of the recognition of executors or the

appointment of an administrator is alien to Islamic law or jurisprudence. The duty of

distributing the estate of the deceased lies with the State or the heirs. This is so because

the estate of a deceased Muslim vests upon the heirs immediately upon death.

Probate is generally not necessary for the admission of the will of a Muslim as evidence

and a grant of letters of administration in intestacy is unnecessary except for the

recovery of debts due to the estate of the deceased.

The duties of the administrator, whether the State or the heir, include arranging a

decent funeral and burial ceremony for the deceased, discharging the just debts from

the whole of estate, distributing what remains to the heirs and effecting and paying

legacies out of one third of what remains after his debts are paid.

In Administrator General v Abdul Hussein 4 EALR 26, (Hamilton J), it was stated under

lslamic law strict proof of claims against the estate of deceased persons is required. It is

also the duty of the administrator to distribute the residue among the deceased’s
74
 successors who are identified in the Quran and in accordance with the shares stated in

therein. The shares of the heirs are settled from the net estate after payment of funeral

expenses, debts and legacies.

Tuesday 22nd June 2021

3. INTESTATE SUCCESSION

Intestacy occurs where a person dies without having made a will. This also occurs where

the person’s attempt to die testate fails upon the invalidation of his will or the person

revokes his will and subsequently dies without reviving his earlier will or without having

made another will.

The rules of intestacy determine the question who is entitled to the property of the

estate of an intestate.

Intestacy may be total or partial. It is total where the intestate has left no valid will

whatsoever. It is partial where a person fails to include all his property in his otherwise

valid will or part of the will is declared invalid or a part of the will is revoked or a

person acquires property subsequent to the making to the will. The property not

covered by the will is governed by the intestacy provisions or is subject to intestate

succession. Section 24 of the SA is to the effect that a person dies intestate in respect of

all property which has not been disposed of by a valid testamentary disposition.

The provisions relating to intestacy are contained in Part IV and Part V of the Succession

Act Cap 162. However, it is important to note that some of these provisions have been

75
 amended by the Succession Amendment Bill 2018 now the Succession Amendment Act

2021.

The intestacy rules only benefit people who have a direct blood link with the intestate

apart from the spouses. It does not confer benefit on such categories as unmarried

partners and parents-in-law, to benefit such persons the deceased has to make a will.

In the absence of blood relatives, the estate passes to the state as provided for in section

32 of the SA.

The rules of intestacy only apply to property that is capable of being disposed of by a

will. They don’t apply to joint property which passed by survivorship.

3.1 Rights of a surviving spouse, dependant relatives and lineal descendants.

For the purposes of the rules of intestacy, a divorced spouse has no rights to the

intestate’s estate. In S.30(1) of the SA, no wife or husband of an intestate shall take any

interest in the estate of an intestate if, at the death of the intestate, he or she was

separated from the intestate as a member of the same household. However, this section

shall not apply where such wife or husband has been absent on an approved course of

study in an educational institution.

Wednesday 23rd June 2021

The Succession Amendment Act 2021 inserts the following immediately after subsection

(1); “(1a) The provision of subsection (1) shall not apply where at the time of death, it

is the intestate who had separated from the surviving spouse and by substituting

subsection 3 of the Parent Act with subsection 3 which states that a court may, on

76
application by or on behalf of the spouse before distribution of the intestate property,

declare that subsection (1) shall not apply to the applicant.

With regard to the surviving spouse, Section 26 of the Succession Amendment Act 2021

is to the effect that the principal residential holding and any other residential holding

shall devolve to the surviving spouse and lineal descendants of the deceased. S.26(2)

of the Succession Act was repealed.

The word lineal descendant has been defined by the Succession Amendment Act 2021

in S.2 (b) as child, issue and lineal descendant to mean the offspring of the deceased

regardless of the age of the off spring including a child adopted by the deceased in a

manner recognised under the laws of Uganda. This paragraph (b) of the Amendment

replaced the previous one of the Succession Act which defined “child” “children” “issue”

and “lineal descendant” to include legitimate, illegitimate and adopted children.

Nonetheless the current definition does include legitimate, illegitimate children too

though it is not expressly stated.

 Adopted children

For the purposes of entitlement under the rules of intestacy, an adopted child is deemed

by virtue of S.52(1) of the Children Act to acquire an interest in the property of the

intestate. The section is to the effect that where an adopter dies intestate his or her

property shall devolve in all respects as if the adopted child were the natural child of

the adopter. However, where it appears to the High Court on a claim made that the

disposition of property devolving on an intestacy has been exercised unfairly against

an adopted child, the court may order such provision as the court thinks equitable to

77
be made for him or her out of the property devolving on the intestacy in accordance

with the law, this is provided for in S.52(2) of the Children Act.

An adopted child cannot claim on the intestacy of a natural parent but takes on the

intestacy of the adoptive parent and other relatives by adoption such as grandparents,

brothers and sisters.

In the Succession Amendment Act 2021, a child is an offspring of the deceased regardless

of the age of the offspring. This will include legitimate and illegitimate children. An

illegitimate child was defined in the SA under S.2(l) but this has since been repealed.

A dependant relative is defined in S.2(g) (i &ii).

Section 27 of the SA was repealed by the Succession Amendment Act 2021 to read

“Distribution on the death of an intestate.”

S.27(1) states that subject to sections 29 and 30, the estate of an intestate, except his or

her residential holding or other residential holding, the following classes shall in the

following manner; be divided among the

a) where the intestate is survived by a spouse, a lineal descendant and a dependent

relative i. the spouse shall receive 50 percent; ii. the dependant relatives shall receive 9

percent; iii. the lineal descendants shall receive 41 percent of the whole of the property

of the intestate, but where the intestate leaves no surviving spouse or dependant

relative under paragraph a (i) or (ii) of this paragraph capable of taking a proportion

of his or her property, that proportion shall go to the lineal descendants;

78
b) where the intestate is survived by a spouse and a dependent relative but no lineal

descendant; i. the spouse shall receive 80 percent; and ii. the dependent relative shall

receive 20 percent, of the whole of the property of the intestate;

c)where the intestate is survived by a spouse or a dependent relative but no lineal

descendant, the spouse or the dependent relative, as the case may be, shall receive 100

percent, of the whole of the property of the intestate;

d)where the intestate leaves no person surviving him or her, capable of taking a

proportion of his or her property under paragraph (a), (b) or (c), the estate shall be

divided equally between those relatives in the nearest degree of kinship to the intestate;

e. where the intestate leaves no person surviving him or her, capable of taking a

proportion of his or her property under paragraph (a), (b), (c) or (d), the whole of

their property shall belong to the legal heir.

(2) A person may apply to court for an order that he or she is entitled to the deceased’s

estate or occupation of the residential holding occupied by the deceased.

(3) In making the order under subsection (3), court, shall have due regard to-

a) the nature of the relationship between the deceased and the applicant;

b) contribution made by the applicant to the deceased’s estate; and

c) any other relevant evidence that the court deems necessary.

S.28 of the SA was amended to substitute for the word “wives” the word “spouses”

and by inserting immediately after subsection (1) the following-

“(1a) Notwithstanding subsection (1), in the distribution of property among members

of the same class, the administrator shall consider the circumstances of each case

79
 including the age, contribution, duration of marriage or degree of dependency of the

beneficiary.;

(1b) A person aggrieved by the decision of the administrator under subsection (1a) may

appeal to the court against the decision within fourteen days from the date of the

decision.”

In the case of In the Matter of the Estate of the Anjuri (Deceased) High Court Probate

and Administration 357 of 1997, the deceased was survived by the wife and three

children. The widow applied for a grant of letters of administration of his intestate

estate. Several persons who claimed to be beneficiaries opposed her application.

Among them were the deceased’s brothers, sisters, mother and alleged daughter. The

court found that except for the mother the rest had not proved dependency and

dismissed their opposition to the application. In finding for the widow, the court

observed that under intestacy, the estate would be administered under S.35(1) of the

Law of Succession Act in Kenya. The Court took into account inter alia, the fact that

the deceased and the widow acquired the assets forming the estate jointly during

marriage and in any event, she was the owner of the half of all the properties as of

right.

3.2 Devolution to the State

When an intestate is not survived by any of the relatives set out in the sections above,

the property of the intestate devolves to the state under S.32(1). However, in cases

where a person is ascertained as laid out in S.27 of the SA, the Minister may return that

80
 property or the proceeds of the property to that person in such manner as the Minister

many think fit, this is spelt out in S.32(2).

Tuesday 29th June 2021

3.3 GRANTS OF REPRESENTATION

A grant of representation is an order in the form of a certificate, issued by the court to

confirm that a particular person is to act as a personal representative of the dead

person. A grant should only be made in respect of the estate of one deceased person.

It is not permissible to issue one grant in respect of two or more estates.

The High Court has jurisdiction to grant probate and letters of administration under

S.235(1) of the SA.

3.3.1 Purposes and Types

There are 2 forms of grants under Part XXIX of the SA, grants of probate and grants of

letters of administration.

Grants of letter of administration are further classified into grants of letters of

administration with will annexed and grants of simple administration. The court may

limit a grant of representation as to property, purpose and time. It may also, in

circumstances where the original personal representatives have not completed

administration, issue a grant limited to completion of administration.

The grant of probate in the case of testate succession establishes the validity of the will,

while in intestacy; it establishes that the deceased died intestate. A grant of

representation is needed to administer the estate of a deceased person except for small

estates which may be administered without a grant.

81
3.3.2 Executors and Administrators

The personal representative represents the deceased. His role generally known as

representation is that of a person authorised in law to dispose of the property of

someone who has died. He steps into the shoes of the deceased in the sense of being

able to lawfully do such things as the deceased himself may have done if he were alive.

The office of personal representative is one for life.

A personal representative appointed under a will to distribute the property of a dead

person according to the terms of the will is called an executor, as he executes the wishes

of the dead person. An executor is defined is in S.2(h) of the SA.

S.180 of the SA is to the effect that the executor or administrator as the case may be, of

a deceased person is his or her legal representative for all purposes and all the property

of the deceased person vests in him or her as such.

The person appointed by the court in case of intestacy and in testate cases where there

is no proven executor is called an administrator. The executor in testate succession

derives his authority from the will and the grant of probate merely confirms the

executor’s.

In intestacy, the grant of letters of administration is the source of the authority of the

administrator. Administrators are normally appointed where the deceased dies intestate.

They will also be appointed in cases where the deceased dies leaving a will that, while

disposing of the assets, does not appoint any executors or those appointed are unable

to act or unwilling to act.

In the Matter of the Estate of Joseph Muchoki Muriki (deceased) Nyeri High Court

Succession Cause Number 396 of 1999, Khamoni J stated that executors and
82
 administrators should not be confused with beneficiaries. Beneficiaries are those

persons benefitting from the distribution of the estate of a deceased person.

A personal representative can also be a beneficiary if he is entitled to a share of the

estate.

3.3.3 Appointment of Executors

These are usually expressly appointed by will. In S.183, the appointment of an executor

may be express or by necessary implication.

The appointment of executors is not a mandatory requirement but in practice a will is

considered incomplete or badly drafted if it omits to appoint executors.

a) Persons qualified for appointment

Persons who are usually appointed executors include spouses, advocates, banks, friends

and the Public Trustee.

Spouses

A husband usually appoints his wife to be his executor and the converse is true, this is

especially in circumstances where they do not have grown up children. This is preferable

because in most cases, the spouse is the residuary legatee and it is only sensible that the

person with the biggest stake in the estate should have a hand in its administration. Where

a spouse is appointed, it is also advisable to appoint a co-executor especially one of the

grown-up children.

Advocates

83
These may also be appointed as executors but the testator is not obliged to appoint as

executor the advocate who drafts the will or keeps it in safe custody. Where an advocate

is appointed as executor, the will should also provide for his renumeration for acting as

such.

The relevant clause in the will usually provides that the advocate will charge his

professional fees on the estate. Advocates are normally appointed executors where they

are involved in the management of the estate. For example, where the advocate handles

the legal affairs of the estate’s businesses or had been a family lawyer for the deceased.

Banks

The bank is the most suitable choice of all available possible executors, particularly where

there is family strife such that the appointment of a person within the family will lead to

discontent. It may also happen where there is no other suitable individual at hand, for

example where a widow is making a will in favour of her children who are minors. A

bank is most suitable as an executor where the will creates trusts that are likely to continue

for many years.

The advantage with this is that the bank is capable of remaining executor for a longer

period than a mortal executor who will need to be replaced eventually. Most banks have

trustee departments whose sole responsibility is to manage the estates of persons who have

appointed them executors.

The Public Trustee

The Public Trustee is in Ministry of Justice and Constitutional Affairs under the Directorate

of Administrator General and Public Trustee whose mandate is ensure that the estates of

84
the deceased persons, missing persons and persons of unsound mind are administered in

accordance with the Succession Laws of Uganda. The Directorate shall among others

manage estates of deceased persons, missing persons, properties of minors and persons of

unsound mind in accordance with the Public Trustee Act Cap 161. The Public Trustee shall

institute legal proceedings against intermeddlers and fraudulent administrators of deceased

persons’ estates.

Executors may be impliedly appointed

Some executors may be impliedly appointed and these are called “executors according to

the tenor of the will.” To be so impliedly appointed, it must be shown that the testator

intended that the person so appointed should carry out the duties of an executor as

stipulated in the Act.

Whether a person is impliedly appointed an executor is dependent on the construction of

the will. In Re Russel’s Goods (1892), P 380 trustees were appointed to ‘carry out my will’

and this was held to be sufficient to make the trustees the executors according to the tenor

of the will. In Re Adamson [1875] LR 3, it was held that the persons instructed under the

terms of the will to pay the deceased’s debts and funeral expenses and to pay the balance

of the estate to named persons were executors according to the tenor of the will.

3.3.4 Grant of Probate

a) Testacy

A Grant of Probate is defined in S.2(s) as a grant by a court of competent jurisdiction

authorising the executor named in the testator’s last will to administer the testator’s estate.
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A Grant of Probate under S.182 of the SA can only be granted to an executor appointed

by will. The grant should only be in respect of all property to which the will provides. It

is usually made to or obtained by the executor or executors appointed by the will.

b) Persons entitled to the grant of probate

A grant can only be sought by and issued to an executor appointed under the will. Under

S.185, probate may be granted to all executors simultaneously or at different times in

circumstances where several executors are appointed. In S.187, where probate has been

granted to several executors and one of them dies, the entire representation of the testator

accrues to the surviving executors or executors. They don’t all have to take out a grant of

probate. Probate shall not be granted to any person who is a minor or is of unsound mind.

c) Effect of a grant of probate

Probate of a will when granted establishes the will from the death of the testator and

renders valid all intermediate acts of the executor as such, this is provided for under S.189

of the SA. Essentially this means that the grant of probate is proof of the terms and the

proper execution of the will.

The other effect is to confirm the executor’s authority to act. It merely confirms the

executor’s authority since the executor actually derives his authority from the will itself as

stated in Kantilal Shah v Southern Credit Banking Corporation Ltd Nairobi Milimani High

Court Civil case number 543 of 2005.

Theoretically, the executor(s) can administer the estate, sue and be sued and exercise any

of the administrative powers conferred upon him/them by the will or by statute before
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the grant of probate is obtained. However, in practice, there is need for a grant of probate

as evidence of their authority to act to enable them discharge their duties as such

effectively.

3.3.5 Grant of Letters of Administration (Simple Administration)

A grant of letters of administration will be made in the vast majority of cases where the

deceased dies totally intestate, that is without having made a will or where his will is

invalidated. S.191 of the SA provides for this.

However, where the deceased has made a will that makes an effective appointment of an

executor but dies totally intestate as the will fails to dispose of any of their property, a

grant of probate will be made.

Persons entitled to grants of letters of administration

According to S. 201, when the deceased has died intestate, those who are connected with

the deceased either by marriage or by consanguinity are entitled to obtain letters of

administration of his or her estate and effects in the order and according to the provisions

hereafter contained.

According to S.202, subject to the Section 4 of the Administrator General’s Act,

administration shall be granted to the person entitled to the greatest proportion of the

estate under section 27.

Section 27 as amended in the Succession Amendment Act 2021, provides a general guide

in hierarchical order of the persons who would be entitled to administer the estate of the

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deceased. The order follows an entitlement to an estate in intestacy and this requires that

a person applying for the grant should have a beneficial interest in the estate.

In Re Kibiego [1972] EA 179, Madan J held that the widow is the proper person to obtain

representation to her husband’s estate, particularly where children are underage as she is

the person who would rightfully, properly and honestly safeguard the assets of the estate

for herself and her children.

Minors and persons of unsound mind cannot be granted letters of administration according

to S. 190 of the SA.

Effect of grant of Letters of Administration

A grant of letters of administration is conclusive evidence that the deceased died wholly

intestate and without leaving a will. Unlike a grant of probate which merely confirms

authority, a grant of letters of administration confers authority to act and vests the

deceased’s property to the administrator.

These entitle the administrator to all rights belonging to the intestate as effectually as if the

administration has been granted at the moment after his or her death. This is stipulated for

in S.192 of the SA.

Wednesday 30th June 2021

3.3.6 Grants of Letters of Administration with Will annexed

a) Issues in testacy where there is no proving executor

A grant of letters of administration with the will annexed (also referred to as grant cum

testament annexo) is made in circumstances where the deceased dies leaving a valid will,
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but there is no proving executor. This is usually the cases where: the will does not appoint

an executor(s) or the executor(s) appointed has pre-deceased the testator.

Another circumstance is where the executor(s) has renounced executorship, this is provided

for in S.194 and S.195 while the procedure is provided for in S.196 of the SA.

b) Persons entitled to grant of letters with will annexed

The persons entitled to a grant of letters of administration with the will annexed include

the universal or residuary legatee as provided for in S. 197 of the SA and a personal

representative of a deceased residuary legatee as provided for in S.198 of the SA who has

the same right to administration with the will annexed as the residuary legatee and this

right only pertains to him the residuary legate who has a beneficial interest survives the

testator but dies before the estate has been fully administered.

c) Effect of the grant with will annexed

A grant of letters of administration with the will annexed is conclusive proof as to the

terms of the will and that the will has been duly executed. Unlike the grant of probate

which merely confirms the authority of the executor, the grant of administration with the

will annexed actually confers authority on the administrator and vests the deceased’s

property in him. The explanation for this is that the administrator is so appointed, not by

the will, but the court through the grant of letters of administration.

3.3.7 How to obtain Grants of Representation.

a) Obtaining Letters of Administration

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i. If the person applying is not the widow of the deceased, then that person must first

obtain a Certificate of No Objection from the Office of the Administrator General.

ii. A person presents a Petition to Court praying for a Grant of Letters of Administration.

This petition is provided for in S.246 of the SA.

iii. This petition must be supported by a Summary of Evidence, list of documents, witness

and authorities that the petitioner intends to rely on. The petition must be signed and

verified by the petitioner as provided for in S.247 of the SA.

iv. When filing the petition in court, the requisite filing fees must be paid in the bank and

evidence of payment attached to the petition.

v. The notice of the petition will then be advertised in the newspapers for a period of

14days.

vi. A person who has a reason as to why the petitioner should not be granted the Letters

of Administration may lodge a Caveat in Court as provided for in S.253 of the SA and

the form of this caveat provided for in S.254 of the SA.

vii. If no caveat is lodged, then the petitioner will be granted letters of Administration by

Court.

b) Where should a Petition for Letters of Administration be filed

The Petition should be filed in the Court with jurisdiction where the property of the

deceased is located. If the property of the deceased exceeds fifty (50) million shillings then

the petition may be filed in High Court.

If the property of the deceased does not exceed fifty (50) million shillings then the petition

may be filed in the Chief Magistrates Court.

c) Obtaining a Grant of Probate

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a) A person presents a Petition to Court praying a Grant of Probate. The petition is

provided for under S.244 of the SA which spells out the form and contents of the

petition. The petition must be signed and verified by the petitioner as provided for in

S.247 of the SA and verified by one witness to the will as provided for in S.248 of the

SA.

b) The procedure followed hereafter is similar to the procedure laid out above.

3.3.8 Revocation or Annulment of Grants.

The grant of probate or letters of administration may be revoked or annulled for just cause.

This is provided for in S.234(1) and just cause is explained for in subsection 2.

Refer to the case of Mukisa & Sewalu v Nabukalu Rebecca Civil Suit No. 29 of 2016.

3.4 The Administrator General

The office of the Administrator General is created by under S.2 of the Administrator

General’s Act Cap 157. Under the Act, the Administrator General is given the mandate to

administer estates, issue Certificates of No objection and to verify beneficiaries among

others.

In carrying out these duties, the Administrator General applies the Constitution of Uganda

1995, the Administrator General’s Act Cap 157, the Succession Act Cap 162, the Public

Trustee Act Cap 161, the Missing Persons (Management) Act Cap 159 and the

Administration of Estates of Persons of Unsound Mind Act Cap 155.

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The Administrator is given mandate in several important areas for instance land, family,

Persons of Unsound Mind and Missing Persons.

Persons of Unsound Mind

A person of unsound mind is defined in S.1(c) of the Administration of Estates of Persons

of Unsound Mind Cap 155 as a person adjudged to be of unsound mind under S.4 of the

Mental Treatment Act or any person defined under S.113 or S.117 of the Magistrates Court

Act.

The Mandate of the AG is provided for under S.3(3) of the Administration of Estates of

Persons of Unsound Mind Act, which is to manage the estate of a person of unsound mind

in case there is no one suitable to manage such estate. The appointment to manage the

estate is made by the court.

Missing Persons

A missing person is defined as a person who disappears from Uganda without making

provision for the administration of his or her estate and investigations have shown that his

or her whereabouts are not known. This definition is provided for under S.1(1)(f) of the

Estates of Missing Persons Management Act Cap 159.

A missing person is presumed dead after three years from the date of disappearance under

S.20 of the Estates of Missing Persons Management Act Cap 159.

The mandate of the Administrator General is provided for S.2(6) of the Estates of Missing

Persons Management Act Cap 159 and that is to apply for a management order and

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manage the estate of a missing person if no one has applied to manage the estate after a

period of twelve months following the missing person’s disappearance.

Upon the evidence of death of a missing person or a presumption of death after his or her

disappearance for three years, the Administrator General has the mandate to administer

the person’s estate in accordance with S.2(1) of the Estates of Missing Persons Management

Act Cap 159.

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