UGANDA MARTYRS UNIVERSITY.

FACULTY OF LAW
2ND YEAR, SEMESTER TWO COURSE UNIT

THE LAW RELATING TO CHILDREN

1. DEFINITION OF A CHILD

Under Art 257(c) of the 1995 Constitution and S.2 of the Children 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.

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).

1.2 The Child’s Welfare, the Welfare Principle:

The term welfare is not defined in the Children 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.”

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.

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.

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 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 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

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. Nakaggwa v Kiggundu (1978) HCB 310

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

4. Samwiri v Rose Achen (1987) HCB 297

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

6. Wambwa v Okumu (1970) EA 578

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

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:

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.
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 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 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.

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.

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.

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.

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.

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 vs Knowles (1962) 1 ALL ER 659.

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 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 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 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 anytime 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.

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.

4.2 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.

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 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 Blacks Law Dictionary, 9 th 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.

The view taken by the English law that a Parent’s rights over his child were inalienable meant

that it could recognise no change of status comparable to the adoption or adroptio Roman Law.

Consequently, spouses who were probably childless and anxious to bring up another’s child as

their own hesitated to do so and the child was in turn deprived o the opportunity of a normal

home life and remained in the orphanage or some other institution. The result of this was a

demand for reform which led eventually to the passing of the Adoption of Children Act in 1926,

the provisions of this Act were revolutionary and subject to certain limitations, it permitted

anyone wishing to bring up somebody else’s child as his own to apply for an adoption order from

a court of competent jurisdiction, the effect of which if it was granted was to break entirely the

legal relationship between the child and its natural parents and to replace it by a similar

relationship between the child and its adopters. The result in brief is that the adopters for almost

all legal purposes step into the shoes of the child’s natural parents.

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 or adoptive parents.

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 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.

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.

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

2007, the learned Judge noted that S.45(4) 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 pre-requisites 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.

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.
 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 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.

3.1.2 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

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.

3.1.3 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.

5. GUARDIANSHIP

A guardian according to Section 1 of the Children 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.

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.43D;

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

their child.

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 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 grant.

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.

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.

 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.

5.6 Revocation of a Guardianship Order;

 This is provided for in S.43K

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;

 Testate succession,

 Intestate 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 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 dispose of his property by will. (Read Administrator General v Bukirwa and

another C.S No.2018 of 1992).

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 infact 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’s life. This means that a will cannot confer benefits

whilst the testator is alive.

The ambulatory nature of wills has 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

 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(Stella) moved in with the deceased (Alex) 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 to marry before the deceased died in 1988.

She obtained the transfer and had it 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, 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.

Read Malinga v Obukunyang Arising from Administration Cause 52/2013

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, William Blackstone described a codicil as:

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

taken as part of a testament.”

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 affect 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. 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). According to this latter case, a Will should

be in writing, signed by the testator attested to by two or more competent witnesses who

must see the testator write, sign or affix his mark on the document. This is what is

referred to as due execution of a Will.

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 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.

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 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

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.

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.

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 sufficies as the

testator’s signature.

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

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:

(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 executed . 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.

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 or 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.

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.

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.

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 will. 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.

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 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 lacked 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 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 the 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

1.5 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 as

amended of the SA. The amendment repealed subsection 2 of S.235.

1.5.1 Purposes and Types

There are 2 forms of grants under Part XXIX of the SA, grants of probate and grants of

letters of administration.

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.

1.5.2 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.

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 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.

1.5.3 Appointment of Executors

 These are usually expressly appointed by will. In S.183 as amended, the appointment of an

executor/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

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 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.

1.5.4 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.

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. 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 as amended.
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 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.

Obtaining a Grant of Probate

a) A person presents a Petition to Court praying a grant of Probate. The petition is provided for

under S.244 as amended 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.

1.6 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.

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 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. 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 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 showed 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.

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:

“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 second will/document 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 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 had not 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.

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 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 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.

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.

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 “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 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 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 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.

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 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.

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 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 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.

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 amended

by the Succession Amendment Act No. 3 of 2022.

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.

1.7 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.

A lineal descendant is defined in S.2 (ma) of the SA Cap 162 as amended.

 A spouse is defined in S.2 (va) of the SA as amended.

A dependant relative is defined in S.2 (g) of the Succession Act as amended.

Section 27 of the SA was replaced by the Succession Amendment Act 2022 with regard to

the distribution of the estate of the intestate, refer to the new Section 27 as amended in the

Succession Act as amended.

Sections 27 to 30 were replaced and Section 31 was repealed.

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.

1.8 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(as amended) of the SA, the Minister may return that
 property or the proceeds of the property to that person in such manner as the Minister may

think fit, this is spelt out in S.32(2).

1.9 GRANTS OF REPRESENTATION IN INTESTATE SUCCESSION

1.9.1 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 is defined in S.2(r).

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.

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 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.

1.9.2 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.

S.190 as amended provides for persons to whom administration maynot be granted. S.190(1) and

S.190(2).

Minors and persons of unsound mind cannot be granted letters of administration according to S.

190 of the SA. Refer to S.190 as amended in the Succession Amendment Act 2022 where the

words of unsound mind have been replaced with……of mental illness as well as refer to S.190

(2).

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.

This provision has been amended by the Succession Amendment Act 202 to include S.201A
which mentions that preference of a surviving spouse to administer estate of a deceased spouse.

S.201A (1) & (2).

According to S.202 as amended is to the effect that 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 and S.201A of the Succession Act as amended.

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 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.

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 as amended. The amendment in subsection 2 of S.192 introduces an offence for

a person who before the grant of letters of administration misapplies the estate of the deceased or

subjects it to loss or damage shall be guilty of an offence and shall on conviction, be liable to
imprisonment for a term of two years or to a fine not exceeding forty eight currency points or

both.

1.9.3 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, 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

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.

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 as amended by the

Succession Act as amended.

Refer to the case of Mukisa & Sewalu v Nabukalu Rebecca Civil Suit No. 29 of 2016.

1.10 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.

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 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.