Separation.

Under S.30(1) of the Succession Act a separated spouse cannot inherit the property of the
deceased without court‟s permission. It provides that 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.

Farasia Rwabaganda V Donato Bahemurwabusha

The deceased had in 1964 got married to the defendant in church but they separated in 1965.
Though they were not legally divorced, the defendant never returned to the matrimonial home till
the death of the deceased. The deceased made a will in 1966 and in 1970 married the plaintiff
customarily (under the Kikiga custom).

HELD;

That the deceased was validly married to Farazia under customary marriage. This marriage
would have been invalid since the first marriage was still subsisting, however, such marriage
having been contracted before October 1973, it was validated by S.11(1) of the Customary
Marriages (Registration Decree) which came into force on October 1, 1973 and was to the effect
that „where a person was married under the marriage Act but subsequently contracted a
customary marriage in the subsistence of the prior marriage before the coming into force of the
decree, the subsequent marriage was valid‟.

Therefore, since a will is revoked by the marriage of the maker, the will of 1966 stood revoked
when the deceased married the plaintiff in 1970 and being no subsequent will, the deceased
would be regarded as having died intestate.

The defendant having been separated from the deceased till his death could not take any interest
in the estate as provided for in S. 30(1). The plaintiff being an industrious woman who kept the
deceased‟s business going to the extent of completing one of the buildings left unfinished by the
deceased, it was fit and proper to be granted the letters of administration of the deceased‟s estate.

Similarly in Joseph Baguma v serufonsa Matenesi;

The plaintiff was the elder son of the intestate Elidad who sought the revocation of the letters of
administration that were granted to the defendant. In 1957, the deceased had married a one
Molly, in a church wedding in Rukungiri. He had in Rukungiri a matrimonial home where Molly
lived with their 4 children including the plaintiff. In the late 1960‟s the deceased migrated to
Kabalore and cohabited with the defendant Serufonsa to the time of his death in 1994. The
deceased had 3 children with Serufonsa. Although Molly‟s children joined their father in
Kabalore, she remained in Rukungiri and never re-united with the deceased. The defendant
claimed that dowry of 2 goats and 5000/= shs was paid to her parents.

Whether serufonsa was a wife, a widow and a proper person to administer the estate?

Held; the defendant was customarily married to the intestate at the time of his death and the
marriage was validated by S.11 of the Customary Marriages (Registration) Decree. Also Molly
was married to the deceased as they were never formally divorced after the wedding.

Serufonsa was a very enterprising woman and had worked hard to contribute to the property the
deceased left in Kabalore. It would therefore be unjust to appoint another person to administer
his estate that they had jointly acquired with the deceased. As for Molly, at the time of his death,
she was separated from the deceased and was thus disqualified under S.30(1) of the Succession
Act.
Mboijana James v Mboijana Prophine

The dispute was between the son and the widow, but the widow had been separated from the
husband for over 20 years. She claimed that as a lawfully wedded wife of the deceased she was
entitled to the estate of the deceased. She also argued that she was a dependant relative.

Held; it is not enough to merely assert that she is the legal wife but must show that she was
dependant on him. She failed to prove that she was a dependant relative. She was thus
disqualified by S.30(1) of the Succession Act as she had been separated from the deceased.

Nyendwoha Lucy v Nyendwoha Robert;

Held; For a husband or wife of an intestate to be disentitled to the grant of letters on grounds
of separation, the material relationship must have ceased to exist and this does not include
mere physical separation for one reason or another as it is with the instant case.

Court acts on two basic principles in deciding to whom to grant letters of administration
namely; the interest of the person who is truly entitled to the grant prevails over other interests,
and court also takes into account, the interest of the beneficiaries. Since the widow was
entitled to 15% comparatively the greatest proportion of the estate and she had the children
of the intestate to care for as beneficiaries the grant of the letters went to her.

The exception to this rule is in S.30(3) where court may on application by a spouse during the
life or within six months after death of a spouse, declare that subsection(1) shall not apply to
the applicant.

The other exception is S.30(2) where the wife or husband has been absent on an approved
course of study in an an educational institution.

Bamwite v Nangobi

The father disinherited his two sons for bad behavior, so he gave the land to his daughter
Nangobi, when she got married she asked her mother and brothers to live on the land.
subsequently one brother sold the land. The mater went to court and the brothers argued that
the sister would not inherit the land under the Kisoga customary law.

Held; That under Kisoga customary law a woman was eligible to inherit property and Nangobi
actually provided proof that she inherited the land by evidence from cultural leaders who were
present when the will was made.