FAMILY LAW II Children and Succession - 231027 - 122440

FAMILY LAW II; CHILDREN AND THE LAW OF SUCCESSION
CHILDREN
Who is a child?
S. 2 of the Children Act as amended defines a child; as a person below the age of eighteen years.
However Art 34(5) of the Constitution lowers the age of a child to 16 for purposes of employment.
What is parental responsibility?
S.1 of the Children Act as amended defines a parent to mean the biological mother or father or
adoptive mother or father of a child and all such persons with parental responsibility over a child.
S. 1 defines “parental responsibility” to mean all rights, duties, powers, responsibilities and
authority which by law a parent of a child has in relation to the child. This includes guardians and
foster parents.
Foster parent is defined under the Children Act, Section 1 (j) as, „means a person not being the
biological mother, father, or relative of the child who assumes parental responsibility of the child
by way of a care order.’’
In the Matter of Mathias Mutebi an infant, Egonda Ntende concluded that “a foster parent has
parental responsibility for the child. A guardian is a person who has parental responsibility for a
child. So a foster parent is a guardian.”
Art 31(4) makes it the right and duty of parents to care for and bring up their children.
S. 6 of the Children Act as amended provides that (1) Every parent or guardian shall have parental
responsibility for his or her child. (2) Where the natural parents of a child are deceased, parental
responsibility may be passed on to relatives of either parent, or by way of a care order, to the
warden of an approved home, or to a foster parent.
In the Matter of Namugerwa Joyce and ors (Minors), Justice Irene Mulyagonja stated that
parental responsibility includes the right at common law over the child’s property together with
such other rights as a guardian of the child’s estate would have.
According to S.5 of the Children Act, parents and guardians of children have to maintain them by
providing education and guidance, immunization , an adequate diet, clothing, shelter and medical
attention.
Duties and rights of a child.
Article 34 of the Constitution of the Republic of Uganda elaborates the rights of children:-
(1) Subject to laws enacted in their best interests, children shall have the right to know and be
cared for by their parents or those entitled by law to bring them up.
MORE IS NOT ENOUGH; MAGIS; SON OF LOYOLA; @FERDINANDIUS

(2) A child is entitled to basic education which shall be the responsibility of the State and the
parents of the child.
(3) No child shall be deprived by any person of medical treatment, education or any other social
or economic benefit by reason of religious or other beliefs.
(4) Children are entitled to be protected from social or economic exploitation and shall not be
employed in or required to perform work that is likely to be hazardous or to interfere with their
education or to be harmful to their health or physical, mental, spiritual, moral or social
development.
(5) For the purposes of clause (4) of this Article, children shall be persons under the age of sixteen
years.
(6) A child offender who is kept in lawful custody or detention shall be kept separately from adult
offenders.
(7) The law shall accord special protection to orphans and other vulnerable children.
The Children Act (as amended in 2016) enumerates children’s rights
Section 4 of the Children Act as amended provides for the rights of the child to include the
right to:-
(a) live with his or her parent or guardian;
(b) where capable, express his or her view, belief or opinion on any matter that affects his or her
wellbeing;
(c) access any information to which a parent, guardian or other person in authority deems critical
to the child’s well-being;
(d) be registered after birth;
(e) a name and nationality;
(f) inherit property where applicable;
(g) safety, privacy, information and access to basic social services;
(h) leisure which is not morally harmful and the right to participate in sports and positive cultural
and artistic activities;
(i) to use any social amenities or other resources available in any situation of armed conflict or
natural or man-made disasters;
(j) be treated without discrimination of any kind, irrespective of his or her race, colour, religion,
belief, age, family status, culture, language, ethnicity, nationality, or social origin, citizenship,
gender, disability if any, political or social opinion, property or any other condition;
(k) effective legal aid including representation in all civil, criminal, and administrative
proceedings; and,
(l) exercise, in addition to all the rights stated in this Act, the rights set out in the United
Nations Convention on the Rights of the Child and the Organization of African Charter on the
Rights and Welfare of the Child with appropriate modifications to suit circumstances in Uganda
that are not specifically mentioned in this Act.
S. 5 of the Act as amended provides for the Duty to maintain a child; it states;
(1) It shall be the duty of a parent, guardian or any person having custody of a child to maintain
that child and, in particular, that duty gives a child the right to—
(a) education and guidance;

(b) immunisation;
(c) adequate diet;
(d) clothing;
(e) shelter; and
(f) medical attention.
(2) Any person having custody of a child shall protect the child from discrimination, violence,
abuse and neglect
The Penal Code Act provides for the different criminal offences under the laws of Uganda, the
penalties and the general rules governing criminal responsibility.
The law protects children by giving grave penalties for criminal offences committed against them.
It is also important to note that children under the age of 12 cannot be held criminally responsible
for their actions, because they do not have the capacity to understand the seriousness of their
offences.
S. 156 of the Penal Code provides for the offence of Desertion of Children (s. 156).
It is unlawful for a parent or guardian or a person in charge of a child under 14 years, (who has the
ability to maintain the child), to desert the child and to leave him or her without means of support.
S. 157 of the Penal Code provides for the offence of Neglecting to provide food e.t.c for children
(s. 157)
It is unlawful for a parent or guardian or a person in charge of a child of tender years, (who has the
ability to maintain the child), to refuse or neglect to provide sufficient food, clothes, beddings and
other necessities for such child, so as thereby to injure the health of the child.
Section 7 of the Children Act (as amended in 2016) provides against harmful cultural practices to
children.
Section 8 of the Act prohibits harmful employment of children.
Section 8A of the Children Act (as amended in 2016) prohibits sexual exploitation of
Children.
Sections 42A, under Part V of the Children Act (as amended in 2016), protects children against all
forms of violence.
Best interests/ welfare of the child.

This encompasses all factors that relate to the general well being of the child through providing
needs of a child in order to grow, the love and the care, a pleasant home environment etc.
Section 3 of the Children (Amendment) Act, 2016:

Welfare and Guiding Principles
(1) The welfare of the child shall be of paramount consideration whenever the state, a court, a
tribunal, a local authority or any person determines any question in respect to the upbringing of a
child, the administration of a child’s property, or the application of any income arising from that
administration.
(2) In all matters relating to a child, whether before a court of law or before any other person,
regard shall be given to the general principle that any delay in determining the matter is likely to
be prejudicial to the welfare of the child.
(3) In determining any question under subsection (1), the court or any other person shall have
regard to:-
(a) the ascertainable wishes and feelings of the child concerned, with due regard to his or her age
and understanding;
(b) the child’s physical, emotional and educational needs;
(c) the likely effects of any change in the child’s circumstances;
(d) the child’s sex, age, background and any other circumstances relevant in the matter;
(e) any harm that the child has suffered or is at the risk of suffering; and
(f) where relevant, the capacity of the child’s parents, guardian or any other person involved in the
care of the child, and in meeting the needs of the child.
IN RE MCGRATH (infants) Lord Justice Lindley held that; The welfare of the child is not to be
measured by money only nor by physical comfort only. The word welfare must be considered in
its widest sense. The moral and religious welfare of the child must be considered as well as its
physical well being. Nor can the ties of affection be disregarded.
In Nakaggwa V Kiggundu it was held that; In determining who should have custody of a child,
it is well established that the paramount consideration is the welfare of the child, such factors as
the father‟s natural and superior right to the custody over the child as against the mother, the claims
of other relatives and the conduct of the parties, among others have to be taken into account. The
term welfare though incapable of exact definition means in relation to custody, that all
circumstances affecting the well being and up-bringing of the child have to be taken into account
and the court has to do what a wise parent acting for the interests of the child ought to do.
Although there was no rule of law that an infant girl must stay with the mother, it was generally
considered better for a child of tender years to stay with the mother but this had to be weighed
against the father‟s natural right to the custody. And in the absence of evidence that the child was
not being well looked after, court granted custody to the father who was living with the child.
In Rwabuhemba Musinguzi v Harriet Kamakune, Egonda Ntende held tha; parents have a
fundamental right to care and bring up their children. This is a constitutional right. Of course it is
not considered in isolation. The welfare of the child is a consideration to be taken into account and
at times may be the paramount consideration.”

In The Matter of Alicia Mirembe Angillis, A Minor
It was Held; The welfare principle is a set of rights and facilities which a child must have and
enjoy during his childhood. These rights are God-given and cannot be taken away, even by the
operation of the law. No law shall be enforceable against the child if such law would in effect
infringe upon the child's rights enshrined in the welfare principle.
It was also held in In The Matter of an Application of Jane Namukasa an Infant that It is now
trite law that the guiding principle in cases of guardianship is the welfare of the child. Whatever
decision is taken by the court it must be in the interest of the child.
Broomley’s Family Law 8th Ed at pages 336, 338 and 341, states;
“the child’s welfare is the court’s sole concern and other factors are relevant only to the
extent that they can assist the court in ascertaining the best solution for the child. In
applying he welfare principle the court must act in the child’s interests, it should be
appreciated that a judge is not deling with what is ideal for the child but simply with what
is the best that can be done in the circumstances. The child’s we;fare is so overwhelmingly
important that it can outweigh the interests of even unimpeachable parents in seeking to
look after their own child against a stranger.”
IN RE MARVIN KAKOOZA In this case, where the applicant, who is child‟s biological mother,
sought an order that would enable her to sell the land she jointly owned with the child, that it is for
construction of the family‟s residence and paying the minor‟s school fees, court held that such
order should not be denied as it is for the welfare and best interests of the minor. Court thus granted
guardianship to the biological mother of the child.
On the welfare principle Court stated that ; In all matters concerning children, the best interests of
the child shall be the primary consideration. This is a legal principle contained in Article 34 of the
Constitution, the Children Act, and various international conventions ratified by Uganda
concerning the rights of children. The best interests of the child set out by the Children Act include
the ascertainable wishes and feelings of the child in light of his or her age and understanding; the
child’s physical, emotional and educational needs; the child’s age, background and other
circumstances relevant in the matter.
In Re Rosette Kanyunyuzi, Court declined to grant legal guardianship to the applicants who
wanted to take the child to Poland. Court found that the child was already 11 years and that it was
in the child’s interests to be left in her current environment since the child was reaching puberty
stage, the change in the environment, feeding and company would affect her adversely and it would
be best if she was brought up in an environment she was used to.
In Re Peter Sebuliba;
PER Irene Mulyagonja Kakooza ; On welfare the judge quoted; Lord McDermott in J v. C
[1970] AC 668 at page 710 where it was held that welfare connotes: “a process whereby, when
all the relevant facts, relationships, claims and wishes of parents, risks, choices and other

circumstances are taken into account and weighed, the course to be followed will be that which is
most in the interests of the child’s welfare as that term has now to be understood” “Paramount
consideration”, as Lord Mac Dermott continued, means a consideration which “rules upon or
determines the course to be followed”.
Convention on the Rights of the Child (art. 3, para. 1) states that “In all actions concerning
children, whether undertaken by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best interests of the child shall be a primary
consideration
The Committee on the Rights of the Child General comment No. 14 (2013 explores the
concept of the best interests of the child. It states;
The Committee underlines that the child's best interests is a threefold concept:
(a) A substantive right: The right of the child to have his or her best interests assessed and taken
as a primary consideration when different interests are being considered in order to reach a decision
on the issue at stake, and the guarantee that this right will be implemented whenever a decision is
to be made concerning a child, a group of identified or unidentified children or children in general.
Article 3, paragraph 1, creates an intrinsic obligation for States, is directly applicable (self-
executing) and can be invoked before a court.
(b) A fundamental, interpretative legal principle: If a legal provision is open to more than one
interpretation, the interpretation which most effectively serves the child’s best interests should be
chosen. The rights enshrined in the Convention and its Optional Protocols provide the framework
for interpretation.
(c) A rule of procedure: Whenever a decision is to be made that will affect a specific child, an
identified group of children or children in general, the decision-making process must include an
evaluation of the possible impact (positive or negative) of the decision on the child or children
concerned. Assessing and determining the best interests of the child require procedural guarantees.
Furthermore, the justification of a decision must show that the right has been explicitly taken into
account. In this regard, States parties shall explain how the right has been respected in the decision,
that is, what has been considered to be in the child’s best interests; what criteria it is based on; and
how the child’s interests have been weighed against other considerations, be they broad issues of
policy or individual cases.
GUARDIANSHIP
S. 1(k) of the Children Act defines a guardian as a person having parental responsibility for a child
Guardianship is a legal process by which an adult acquires parental responsibility.
IN THE MATTER OF NAMUGERWA JOYCE

The applicant was the paternal aunt of the minors who claimed that she was given powers to take
care of the minors after the death of their father, the applicant averred that she had been responsible
for the children‟s welfare and further that she was registered as a joint owner of the property with
the minors. The applicant averred that she was desirous of selling part of the land in order to

provide some basic necessities to the minors such as pay for education, buy clothing. The applicant
sought to be appointed the guardian of the said minors in order to effect the sale of the part of their
property.
HELD According to s.1 (k) of the Children Act, a “guardian” means a person having parental
responsibility for a child. S. 1 (o) provides that “parental responsibility” means all rights, duties,
powers, responsibilities and authority which by law a parent of a child has in relation to the child.
Types of Guardianship.
The Children Act as amended provides for four types of guardianship.
i. Legal guardianship; this is acquired through court order. The court with jurisdiction is
the High Court.
S. 43A of the Children Act as amended provides for legal guardianship. This applies to
guardianship of children in Uganda by citizens of Uganda. A person who is not a citizen of
Uganda shall not be eligible to apply for legal guardianship. An application for guardianship
may be made by any person above 18 years and shall be made to the High Court.
ii. Customary guardianship. Under S. 43C of the Children Act as amended, family
members may appoint a guardian of a child in accordance with their customs, culture
or tradition. This is in situations where both parents of the child are dead or cannot be
found or the surviving parent is incapacitated.
Customary guardianship is defined under S.43C(4) as parental responsibility of a
Ugandan child by a Ugandan citizen resident in Uganda in accordance with the
customs, culture or tradition of the respective people.
iii. Guardianship by agreement; this is provided for under S. 43D; the parents of a child
may by agreement or deed appoint any person to be a guardian. However such
agreement can only be effective if signed by the parent in the presence of two witnesses,
one of whom must be a probation and social welfare officer and the other the local
councilor at LC1 level.
iv. Joint guardianship. Under S. 43E Court can appoint two persons as guardians.
There is also a testamentary guardian under the Succession Act 9S.43-45) where a testator
appoints someone as a guardian.
Previously guardianship was not provided for under the Children Act cap 59. Court would use its
inherent unlimited jurisdiction to grant guardianship in the best interests of the child. As a result
court would grant guardianship to both Ugandans and non-Ugandans.
IN THE MATTER OF ALICIA MIREMBE ANGILLIS A MINOR

Alicia Mirembe Angillis was abandoned by its unknown mother after it was delivered at Mulago
Hospital on the 17/4/2003. The applicants collected the child from Welcome Children's Centre at
Jinja when it had been three months previously. After picking it from the Centre on the 11/8/2003,
the applicants have since kept Alicia under their roof and care at their residence in Kabalagala
zone Makindye Division, Kampala. The first applicant is a Belgian national which the second is a
Ugandan. The applicants had taken all the possible steps to trace the parents of the child by
advertising in the media but no one has come forward to claim the child.
HELD A guardian is defined in section 1(K) of the Children Act as a person having parental
responsibility for a child and Parental responsibility in the same section 1(0) means all rights,
duties, powers, responsibilities and authority which by law a parent of a child has in relation to the
child.
In all matters relating to the guardianship of a child the first and paramount consideration is its
welfare. The child is defined in section 2 of the Children Act as a person below the age of eighteen
years. The welfare principle is a set of rights and facilities which a child must have and enjoy
during his childhood. These rights are God-given and cannot be taken away, even by the operation
of the law. No law shall be enforceable against the child if such law would in effect infringe upon
the child's rights enshrined in the welfare principle. See: Article 34(1) of the Constitution. The
child in this application is a Uganda National having been born in Uganda (chapter III Article
11(1) of the Constitution and one of the applicants is a Belgian. Where the best interest and welfare
of the Child is concerned, the guardianship of the Child may be granted to a foreign national. It is
better for the child to have a home and parental love and care in the hands of a foreign national
than to live without any one to care for it (child).
IN THE MATTER OF IRENE NAJJUMA, AN INFANT The applicant was a United States
female citizen who sought an order for legal guardianship of one Irene Najjuma an infant estimated
to be 8 months old whose parents were unknown. She was abandoned near the Sanyu Babies
Home, which took custody of the baby. Court granted guardianship to non citizens basing on the
welfare principle.
Per Egonda Ntende “What is needed for this infant and many other children in a similar position
is a home with loving parents and a family. This child is being provided an opportunity to grow
up in a loving family environment to be provided by the applicant. The child‟s current
circumstances as a ward of an orphanage was only intended to be temporary, pending the
availability of a suitable home in which she could be raised. Unfortunately no suitable home has
been available locally since she was picked up abandoned. Institutional upbringing denies
children their natural and legal rights of being raised by their parents whether natural or
adopted”. However J Egonda-Ntende called upon government to streamline the law relating to
guardianship and inter country adoption. NB this was addressed under the Children (Amendment)
Act 2016.
IN THE MATTER OF AN APPLICATION OF JANE NAMUKASA AN INFANT It is now

trite law that the guiding principle in cases of guardianship is the welfare of the child. Whatever
decision is taken by the court it must be in the interest of the child. Guardianship has been granted
to applicants who are foreigners after the court has satisfied itself that it was for the benefit of the
child. In this case court granted guardianship of the two year old Jane Namukasa to an Italian
couple.

IN THE MATTER OF CAROL GIFT NAKILINYA…………… (A CHILD) In this case court
granted legal guardianship to US nationals where the child was chased away with her mother from
her father’s home by her step mother. Her biological parents failed to look after her and she was
in custody of Dr. Babiiha who had no intentions of keeping her permanently. There was evidence
on record that the applicants desire to help the child and provide her with a loving home
environment. Court granted guardianship in the best interests of the child to enjoy the said basic
needs permanently in the course of her growing up.
IN THE MATTER OF MICHAEL (AN INFANT) Egonda Ntende, J.; stated that “ … the
infant’s current circumstances as a resident of an orphanage are only intended to be temporary,
pending the availability of a suitable home in which the infant can be raised…No governmental
support, be it local or central, is available for the care and upkeep of the infants generally or
specifically in the case of this child. Right now it is under the care of a local non-governmental
organization………………………………. There is no offer from Ugandans or non- Ugandans
resident in Uganda to take up the responsibility of looking after this infant. I find therefore
exceptional circumstances exist for an order to be made in favour of
The Children Amendment Act 2016 has cured this lacuna by inserting a chapter on Guardianship.
This restricts legal guardianship to only Ugandan citizens. S.43A
Effect of guardianship
S. 43H of the Act as amended; a guardianship order shall vest parental responsibility of the child
in the guardian.
Revocation.
S. 43K of the Act as amended provides for revocation of guardianship if obtained by fraud,
misrepresentation, non compliance or neglect of parental responsibility. A probation and social
welfare officer or relative can apply for revocation of guardianship.
IN THE MATTER OF AN APPLICATION BY ROXANE TURNER AND JOYCE

NALUBOWA
In this case court revoked legal guardianship of the minors where the record showed they were
granted by a Magistrate Grade 1 at Kalangala Family and Children Court. The applicants had lied
when they averred that it was granted by a Chief Magistrate of Masaka Court. Court found
therefore that the Kalangala Family and Children court presided over by a Magistrate Grade 1
exceeded its jurisdiction when it granted a legal guardianship order in respect of the two children
to the 2nd applicant who is a non Ugandan. “This was clearly an illegality and this court cannot be
a silent spectator of the same. It was held in Cardinal Nsubuga & Another V Makula
International Ltd [1982] HCB 11 that an illegality, once brought to the attention of court,
overrides all questions of pleading, including any admissions made thereon.” Court therefore
revoked the guardianship order to Turner, the 2nd applicant on grounds that it was illegally granted
by the Magistrate Grade 1 of Kalangala Family and Children Court and ordered for the children to
be returned back to their grandmother as the closest known relative to the said children.

Termination of guardianship;
Guardianship may be terminated (not revoked); S. 43H (2 and 3)

i. When the child attains 18 years
ii. The order shall cease to apply on death of the guardian or if he is suffering from
infirmity of body or mind.
Conditions for guardianship.
S. 43F;1) the Court 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
f. Where the child is 12 years of age 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.
2. the court shall satisfy itself that the applicant;

 has continuously lived in Uganda for at least three months
 does not have a criminal record and
 has a recommendation concerning his or her ability as a guardian from probation and social
welfare office
3. court shall not make the order unless it is satisfied that no payment has been made in
consideration of the guardianship.
CASES
IN RE MARVIN KAKOOZA
HELD; In this case, where the applicant, who is child’s biological mother, seeks an order that will
enable her to sell the land she jointly owns with the child, and where the child, who is of
understanding age, is not opposed to the sale, and where both state that it is for construction of the
family’s residence and paying the minor’s school fees, such order should not be denied as it is for
the welfare and best interests of the minor. Court thus granted guardianship to the biological
mother of the child.
IN RE OTIM GABRIEL
Court granted legal guardianship of a minor aged 17 to his big brother. The applicant, who was
child’s brother, sought an order that would enable him to sell the land he jointly owned with the
child and another brother, and court held that where the child, who was of understanding age, was
not opposed to the sale, and where their other brother, also a joint proprietor of the same land, also

stated that it was for acquiring a bigger piece of land and paying the minor’s school fees, such
order should not be denied as it is for the welfare and best interests of the minor.
IN THE MATTER OF NAMUGERWA JOYCE
The applicant was the paternal aunt of the minors who claimed that she was given powers to take
care of the minors after the death of their father, the applicant averred that she had been responsible
for the children’s welfare and further that she was registered as a joint owner of the property with
the minors. The applicant averred that she was desirous of selling part of the land in order to
provide some basic necessities to the minors such as pay for education, buy clothing. The applicant
sought to be appointed the guardian of the said minors in order to effect the sale of the part of their
property.
HELD According to s.1 (k) of the Children Act, a “guardian” means a person having parental
responsibility for a child. S. 1 (o) provides that “parental responsibility” means all rights, duties,
powers, responsibilities and authority which by law a parent of a child has in relation to the child.
Parental responsibility includes the parent’s right at common law over the child’s property together
with such rights as a guardian of the child’s estate would have Section 3 of the Children Act
provides that the welfare principle and the children’s rights set out in the First Schedule to the Act
shall be the guiding principles in making any decision based on the Act. Paragraph 1 of Schedule
1 of the Act then provides that whenever the State, a court, a local authority or any person
determines any question with respect to the upbringing of a child; or the administration of a child’s
property or the application of any income arising from it, the child’s welfare shall be of the
paramount consideration
One of the grounds of this application was that the applicant was given powers to take care
of the minors after the death of their father. However, the applicant did not give any
information about who gave her the powers or how she came to have them. Under the law,
the right to act as legal guardian may be vested by the parent in another person by a will or
some other document that takes effect after the death of both parents who by law have
parental responsibility. In my view, the fact that the applicant is jointly registered as
proprietor of the land with the minors does not necessarily mean that she is de facto to be
appointed their guardian or that she is the best person to ensure that their rights are
sufficiently respected, enforced and protected. The children are obviously too young to
make decisions about their guardianship and that of their property. That may be so, but the
applicant did not disclose whether these minors have a mother or mothers who would be
the automatic guardian(s) in the absence of their father. I therefore suspect that the decision
to make the applicant the guardian of these infants and their property may have been
premised on the fact that she is the paternal aunt of the children and that ordinarily under
the customary laws of most traditional communities in Uganda she would have better rights
to guardianship of the children than their mother(s). S.2 (n) of the Succession Act
reinforces this practice which is premised on the dominance of the male who is the father
because it still provides that with regard to kindred and consanguinity “a paternal ancestor
shall be preferred to a maternal ancestor.
However, decisions that are premised in customary law and patriarchy are often
discriminatory and controversial. Courts have to be careful in accepting them wholesale

without adequate information on how they came to be made. This is so because customary
law has come to be known as the tool by which women’s and children’s rights are made
subordinate to those of other persons who are sometimes also women. That is a position
that can no longer be accepted without question in light of the decision of the Constitutional
Court in Law & Advocacy for Women in Uganda v. Attorney General, Constitutional
Petitions No. 13/05 and 13/06. In that case the Justices of the Constitutional Court ruled
that ss.2(n) (i) and (ii) of the Succession Act are inconsistent with and contravene Articles
21 (1) (2) (3) 31, 33(6)of the Constitution and they are null and void. A court may only
appoint a guardian if a minor has no surviving parent who automatically has parental
responsibility. In this case it was not disclosed whether the minor herein has a surviving
parent or not. Court was therefore unable to make the decision requested for without
adequate information, i.e. whether the minors herein had a mother(s) and about how the
applicant got powers to act as the guardian of the minors.
IN THE MATTER OF ROSETTE KANYUNYUZI
Court declined to grant legal guardianship to the applicants who wanted to take an 11 year old
female child to Poland as it was not in her best interests. Court noted that it was concerned that an
abrupt change in environment, feeding, company and circumstances of a girl child who is very
close to puberty would affect this child adversely. She is at a delicate age. It would be best if she
was brought up in the stability of the environment she is used to. It is also most likely that she
would suffer psychological trauma which may become more complicated given her age. Poverty
alone is not a good reason for unsuspecting parents to give away their children.
IN THE MATTER OF MATHIAS MUTEBI AN INFANT

The applicant, a single female, is residing and working in this country. She cohabits with a male
friend. In this application she is seeking an order of legal guardianship of Mathias Mutebi,
hereinafter referred to as the infant. The applicant applied to be appointed a foster parent of the
said infant and the Family and Children Court of Nabweru issued a care order dated 27th May
2009 that appointed her as a foster parent to the infant.
PER EGONDA NTENDE; Foster parent is defined under the Children Act, Section 1 (j) as,
„means a person not being the biological mother, father, or relative of the child who assumes
parental responsibility of the child by way of a care order.‟ Guardian is defined by the same Act,
Section 1 (k) as, „means a person having parental responsibility for a child.‟ In my view it is clear
from the foregoing that a foster parent, appointed by the Family and Children Court, is a guardian
of the infant. A foster parent is a guardian of the infant by virtue of appointment as a foster parent.
A foster parent has parental responsibility for the child. A guardian is a person who has parental
responsibility for a child. So a foster parent is a guardian
CUSTODY
Custody deals with the issue of who has the right to live with the child and make important
decisions regarding the child.

Generally all parents have equal rights to live with the child Art 31(4) and decisions regarding the
child’s education, health care and general welfare. However, situations may arise like separation,
divorce, termination of cohabitation and a question of custody of a child arises.
The guiding principle in all matters relating to a child is the welfare of the child.
In re Ali Issa court stated inter aria that the word custody when used in connection with the children
essectially regards control preservation and care of the child’s physical, mental, moral wellbeing
and having responsibility for the child in regard of his/ her needs as well as determining who the
child live with.
S.1 of the Children Act defines a custodian to mean a person in whose care a child is physically
placed and such a person acquires parental responsibility over the child. Art 31(4) S.4 Children
Act.
Application for custody. Under S.73 (1) of the Act as amended by the Children Amendment Act,
a court may on an application by a sole applicant or joint applicants grant an order of custody of a
child or children as a case may be on such conditions as it may determine.
S.73 (3) the court may in reaching its decisions, shall primarily consider the welfare of a child.
PULKERIA NAKAGGWA V DOMINICO KIGGUNDU
In this case each parent wanted the custody of the child and court held; In determining who should
have custody of a child, it is well established that the paramount consideration is the welfare of the
child, such factors as the father’s natural and superior right to the custody over the child as against
the mother, the claims of other relatives and the conduct of the parties, among others have to be
taken into account. Although there was no rule of law that an infant girl must stay with the mother,
it was generally considered better for a child of tender years to stay with the mother but this had
to be weighed against the father’s natural right to the custody. And in the absence of evidence that
the child was not being well looked after, court granted custody to the father who was living with
the child. That where custody of the child is given to another parent, a parent had a right of access
to the child provided such access did not interfere or disrupt the well being of the child.
RWABUHEMBA TIM MUSINGUZI v HARRIET KAMAKUME The respondent is the

natural mother of one Ashley Kijumba, a minor. While the child was 2 years old the respondent
went to London leaving the child with its father in the year 2002. After the respondent had gone
to London the applicant who is a paternal uncle took custody of the infant. in the year 2006 the
applicant applied for legal custody in the Family Court at Nakawa and he got custody of the child.
The mother opposed the original application stating that she wanted custody of the child, and that
she was able to look after the child.
HELD Article 31 of the Constitution states in part, „(4) It is the right and duty of parents to care
for and bring up their children. (5) Children may not be separated from their families or the persons
entitled to bring them up against the will of their families or of those persons, except in accordance
with the law.‟ Parents have a fundamental right to care and bring up their children. This is a
constitutional right. Of course it is not considered in isolation. The welfare of the child is a
consideration to be taken into account, and at times may be the paramount consideration. A parent

can only be denied the right to care for and raise her children when it is clear and has been
determined by a competent authority, in accordance with law, that it is the best interest of the child
that the child be separated from the parent.
Both parents have similar and equal rights with regard to their child. The father of the child elected
not to look after the child. The mother wants to care for and raise her child. She is entitled to do
so in law. The mother’s right to raise her child cannot be ousted by a wealthy relative on the basis
that the relative is well off and competent to look after the child. Or that the child having initially
joined the wealthy relative by consent of one of the parents of the child and the blessing of the clan
the other parent is to be denied custody because the wealthy relative’s children have gotten used
to the company of the child. In effect that was the case put forward by the respondent. The appellant
(mother) is, as of constitutional right, entitled to custody of the child.
This case is to the effect that custody of a child cannot be granted to another person where one of
the biological parents is ready and able to take care of the child.
NAKALULE CHRISTINE v KAKOOZA HERBERT
This was an appeal from the judgment of the Chief Magistrate‟s Court at Nakawa wherein the
Chief Magistrate dismissed the appellant‟s appeal brought on grounds that the trial magistrate
erred in fact and law when he disregarded the welfare principle and ordered the Respondent‟s
children and their mother to vacate the family home at Kawaala and relocate to a house in Wakiso.
The wife complained that the offer of the house at Wakiso was not convenient and affordable as
the distance to her place of work in Owino was far.
In his judgement the judge stated “And my reasoning is that welfare of the children cannot be
considered while disregarding the wishes of their mother, with whom they were going to stay with
in this case. The children will be psychologically and mentally tortured and may not even
concentrate on their studies if their mother is uncomfortable or miserable. That is the reality of life
which Courts in this country must be alive to.
I therefore agree with the submissions of Counsel for the Appellant that the Chief Magistrate erred
in law and fact when he concluded that shifting the children of the Respondent and Appellant to
Wakiso from Kawala, was in their best interest. It is not only the issue of raising school fees for
the children by renting the house at Kawala that should have been considered, but also other
relevant factors about the welfare of the children such as whether the proposed house at Wakiso
was conducive or proper for the upbringing of the children as opposed to Kawala where they have
been all along. What the comfort and satisfaction of their mother. That cannot be isolated from the
welfare of the children. Children are at their best where both their mother and father are together
and happy. But in the non-recommendable circumstances of separation or disagreements as is
apparent in this case then it is better that the children are closer to their mother whereas both
parents play a crucial role as far as the welfare of the child is concerned, there are certain nitty
gritty detailed roles of their mothers which cannot be ignored or taken for granted.
I find the reasoning of the Grade II Magistrate indeed very absurd and in total disregard of Gender
Policy and generally the law with equality of men and women, husbands and wives as enshrined

in the Constitution of this country and other enabling laws. The Magistrate concluded as follows:-
“The Appellant was given a house to stay in not as a wife but as someone with custody of
children and that she was not entitled to choose where she should stay.” The above statement
in my view is not only derogatory and demeaning of women in society but unexpected from a
Court of Justice. It is not proper to refer to appellant, who is customarily married to the Respondent
as someone having custody of children. In the first instance whose children are they? Don’t they
belong to both the husband and wife, in this case Appellant and Respondent? Did the Respondent
produce those children alone without the natural and inevitable and enjoyable input of the wife?
How can the wife then be referred to as “someone”, when she is the natural mother of the children
in question. This Court, as a Court of record and exercising its appellate Jurisdiction in conformity
with the Principles of law, Justice, Equity and good conscience as spelt out under Section 2(a) and
(c) and Section 15(1) of the Judicature Act, shall and will not be derailed by such naïve and 14th
century reasoning of reference to a wife as someone, contrary to Article 33 of the Constitution
of this country.”
In KATUNGYE v KATUNGYE Court held that as the children were very young, it was in their
best interests to be in custody of their mother as they still needed the tender care of their natural
mother
S.73A allows of the Act as amended; provides for application to the family and children’s court
for an interim custody under pending the determination of the main applicant.
Court may issue this order if satisfied that a child is suffering or Vicky to suffer if the order for
interim custody is not issued or the order is in the best interests of the child.
73 B allows parents to enter into a written agreement to determine which of them shall have
custody of the child and such agreement is enforceable before the court if it’s in the best interests
of the child and if it wasn’t entered into without fraud or duress.
This is a legislator’s way of reducing case backing.
Revocation of a custody order
S.73 (2) allows court to remake order at any time from one person and make a grant to another
person or institution and it is unlawful for any person to remove a child from mother person or
institution having lawful custody of the child. 74(4)
Juliet v Sam Okwi (93)
S.85 variation of the custody= grant to another parent
Reasonable access.
A person granted custody of the child may permit the other parent not having custody to access
the child within reasonable time.S.87 of the children act

Held; That where custody of the child is given to another parent, a parent had a right of access to
the child provided such access did not interfere or disrupt the well being of the child.
An access can only be denied where the parent is harmful to the child or where even visits may
not be in the best interests of the child.
S.86 in the event of nullification of marriage, there shall be joint consultation between parents in
bringing up the child where the circumstances permit and where possible.
It is often presumed that children of tender years (below 7) should live with their mothers because
of the care receded.
Held; Although there was no rule of law that an infant girl must stay with the mother, it was
generally considered better for a child of tender years to stay with the mother but this had to be
weighed against the father’s natural right to the custody. And in the absence of evidence that the
child was not being well looked after, court granted custody to the father who was living with the
child.
KIRUNGI DOREEN v MUGABE RONALD
In dissolving the marriage of the parties court found that the petitioner (wife) had been caring for
the child since it was born, including paying her school fees. Court thus held that the cardinal
principle on whom to grant custody of a child in cases of this nature is the welfare of the child. At
her tender age of three years, the child needs to live with the parent who has cared for her since
she was born rather than the parent who has been absent from her life and has not catered for her.
There are also case decisions that where a child is of tender age, custody should be granted to the
mother. See Kayongo V Sekiziyivu [1973] HCB 24. Custody was thus granted to the mother.
KAGIMU V KAGIMU
HELD; The cardinal principle in determining to whom to grant custody of a child in cases of this
nature is the welfare of a child.. in the matter of custody of children of tender years it is trite that
such custody should go to their mothers. In this case court found that the child was six years old
and of tender age and the man was not paying her fees nor buy food or pay rent, it was for the best
interests of the child to be under the custody of the mother.
Teopista Kayongo V Sekiziyivu [1973] HCB 24; States that as concerning children of tender
years, such children should stay with their mothers unless she is not a fit and a proper person and
where the custody is taken away from the mother, the mother should be free to visit her children
as often as she pleases.
Nyakairu v Nyakairu HELD; Court must take into consideration the conduct of the parties and
to what extent such behavior is harmful to the child’s wellbeing.
NYAKAIRU V NYAKAIRU

This was an appeal by the appellant against an order granting custody of his three children of 7, 3
and 1 ½ years to the respondent in a divorce petition. For the appellant it was argued that the father
had a common law right to the custody of his children of whatever age and that moreover the wife
was a young woman of 25 years who could easily remarry and thus be forced to return the children
back to their father.
HELD; In Uganda the law relating to custody of children was the common law and this was that
the father had a right to the custody of his children however young, and the mother had to bring in
special circumstances and prove them to show that the father‟s common law right to the custody
of his children should be superseded.
Although the underlying principle in all custody cases was that the welfare of the children
was the paramount consideration, the courts in applying this principle had to consider other
ancillary circumstances. These circumstances includes, for example, such matters as who
of the spouses was to b lame for the breakup of the marriage, who of the spouses was more
financially equipped to look better after the interests of the children and which of the
spouses could provide a more comfortable home. For the guilty spouse to be deprived of
the custody of the children, it had to be proved that such custody would adversely affect
the physical and moral welfare of children. Immorality on the part of the father was not a
sufficient justification for interfering with a father‟s common law right to custody of his
children unless such immorality was very flagrant coupled with other habits injurious to
the children.
Similarly cruelty could be good ground for interfering with the right if such cruelty
extended to the children as well as the mother. In deciding whether custody of the children
should be granted to their mother, the court could not shut its eyes to the natural desire of
a woman to remarry after divorce. In this case as there was nothing to show that the wife
would not remarry and the fact that the children were still living with their father and there
was nothing to show that their physical and moral welfare had deteriorated as a result of
living apart from their mother, court granted custody to the father.
NTANDA v KAYEMBA 2008 HCB 116
HELD; custody of children of tender years should be granted to the mother. However, the party‟s
previous conduct is essential to establish the certainty of children‟s welfare upon custody. Access
to children should be carefully granted without causing inconvenience to either party or interfering
with the children‟s school programme.
In the case of Samwiri Massa vs. Rose Achen [1978] HCB 297, Justice Ntagoba observed that
“it’s trite law that where issues of custody of child is between the father and its mother and taking
into account the paramount interest of the child, custody of such child, especially when it’s of
tender years must be granted to the mother…”
MAINTENANCE

This is a constitutional right of the child and the duty of a parent to ensure th child’s welfare and
proper upbringing.
Who can apply?
S.76 (1) provides for persons who can bring up a case for maintenance i.e. mother of the child
against father and vice vasa, the guardian of a child against the parents of a child but such a person
must have custody of the child.
Parents has the responsibility to maintain their children.
KIRUNGI DOREEN V MUGABE
In a divorce petition, court stated that on maintenance of the child, S.5 of the Children Act puts a
duty on parents to maintain their children. That duty gives the child a right to education and
guidance, immunisation, clothing, shelter etc. Court ordered the husband to pay 400 USD per
month for maintenance of the child whose custody was granted to the mother.
S.76 (2) allows a child against whom a declaration of parentage has been made to make an
application of maintenance through a next of friend
An application can be made during the subsistence of a marriage, during proceedings of divorce,
separation, during proceedings for declaration of parentage, and after a declaration of parentage
has been made.
S.76 (4) it may be made at any time during pregnancy as before the child attains 18 years of age.
Where there are divorce proceedings and the application is not made, the applicant loses the right
to apply.
This was held in JULIAN GALTON FENZI v NABBOSA NATASHA MARIE
The grounds of the application are that the applicant and the respondent got divorced on 10th May
2011 vide Divorce Cause 9 of 2010 where the applicant was granted custody of the two children
in the marriage aged 17 years and 11 years respectively and that since then, the respondent being
mother of the children has failed to support them financially notwithstanding the fact that she was
granted all the property which is valued at approximately US $ 1 million and that it is just and
equitable that the application for maintenance be granted as it is in the best interest of the children.
It was held that the matter was res judicata and should have been brought under the divorce
proceedings.
Jurisdiction
Orders to be granted by family and children court or in the high court in respect of divorce. 76 (7).
Once court is satisfied with the applicant, it may make orders against the mother or father of the
child for the payment of applicant of a monitory sum of money as may be determined by court,

funeral cases in case of a mild dies before marriage, the order and the costs incurred in making the
order.
The amount to be paid is at the court’s discretion taking into account the circumstances of the case
and to the financial means of the father or mother.
CHAMA V RWALINDA The husband petitioned for divorce and custody of the only child in the
marriage. The wife cross petitioned for dissolution of the marriage, custody and maintenance of
the child. The maintenance was for school fees, food, medical expenses and contribution towards
shelter and a lump sum of 3 million refund of money spent on maintenance of the child. Court
granted the maintenance order as the sums prayed for were fair and wife was unemployed. Custody
was granted to the mother.
S.78 variation of amount of maintenance
S.81 makes it an offence to misapply maintenance money and the grant of custody may be varied
on those grounds.
The maintenance order will cease where a party giving maintenance requires custody of the child
78(2) or where the child attains 18 years (S.82). This was seen in the case of AYO v OJAMBO
where court dismissed the application that sought for maintenance costs of a child who was above
18 years.
Execution of a maintenance order S.77
By attachment/ recovery by distress. This is after failure to pay after one month of making the
order.
ADOPTION
It is not defined in the act but however, it may be understood as a legal process by which the courts
extinguish ties between the child and its mutual parents or guardians and creates ties between the
child and the adopter or adoptive parents.
An order of adoption grants the adopting parent all legal rights, duties and responsibilities of a
child as if such a child was theirs own biological child.
Brownlie at 408 defines adoption to mean the process by which a child’s legal parentage is severed
and irrevocably transferred from one case of adults usually the birth parents and vested in other
adults namely the adoptive parents. It is a complete severance at a legal relationship between
parents and the child and the establishment of a new one between the child and their adoptive
parents.
Adoption can only be affected through a court process.
Jurisdiction

Under S.44 cap 59, the chief magistrate’s court can grant an order of adoption where between the
child and the adopter are Ugandans. The high court has jurisdiction where the child or the applicant
are not citizens of Uganda.
However, in practice by involving Art 139 and S.14, the high court has jurisdiction in all matters.
Under S.44 (2), the child needs not be Ugandan to be adopted.
Unlike guardianship, adoption is not restricted to Ugandans alone.
However, these are prerequisites for adoption that must be satisfied by both a citizen and anon
citizen.
Conditions for adoption
S.45of the Act provides for circumstances that must be satisfied where both the child and the
applicants are Ugandans, (
S.45 allows for adoptive order to a sole applicant or joint applicants who may be spouses
a. the applicant or at least one of the joint applicants has attained the age of twenty-five years
and is at least twenty-one years older than the child.
This is a safeguard to ensure that the person is mature to take care of the child.
The courts have in some circumstances waived this in the best interests of the child
IN THE MATTER OF MIREMBE NANSAMBA CLARE (A MINOR)
The petitioner, a 27 married British citizen of Ugandan decent and maternal uncle of an 11 year
old Mirembe Nansamba Clare sought to adopt her. The wife of the petitioner consented to the
adoption and so did the parents of the child. HELD; In order to adopt a child, the petitioner must
have attained 25 years of age, and be at least 21 years older than the child, according to section
45(1)(a) of the Children Act. The applicant here is 27 years of age, and is 16 years older than the
child and does not have the required age difference. However, since the applicant is an uncle, the
age difference is of no consequence
b. in the case of an application by one of the spouses, the other has consented to the adoption.
The court may dispense with the requirement of consent if the spouse whose consent is required
cannot be found or is incapable of giving consent or the spouses are separated and living apart and
the separation is likely to be permanent.
Courts have sent aside an adoption order obtained without consent of the other parent.
IN THE MATTER OF PETER SSEBULIBA ALIAS NAMANSA JAMES

Susan Nagayi brought this application in respect of Peter Ssebuliba, her biological son. The
applicant sought for a writ of habeas corpus against one Victoria Kalungi Namakonzi who was
holding the infant pursuant to an adoption order that had been issued by the Chief Magistrate at
Jinja.. The main ground for the application was that the adoption order had been procured
fraudulently because Victoria Kalungi did not obtain the consent of the child‟s mother (his only

surviving parent) before obtaining the order. Further ground was that the continued denial of the
opportunity for the child to live with his biological mother was not only unlawful but
unconstitutional. It was contended that the order was a nullity because there were no exceptional
circumstances that warranted granting an adoption order in respect of a male child to a female
adoptive parent. Further that the order was a nullity because the consent of the only surviving
parent (the applicant) had not been obtained which was contrary to the provisions of s. 47 of the
Children Act. That according to Article 34(1) of the Constitution, it was the right of the child to
be cared for by the applicant and this had been contravened.
HELD
The requirement for consent of the parents of the child before an adoption order is granted is
provided for by s. 47 of the Children Act. S.47 (1) provides that the consent of the parents of the
child, if known, is necessary for the adoption order to be made; but the consent may be revoked at
any time before the pronouncement of the adoption order. Rule 8 (1) of the Children (Adoption of
Children) Rules provides that a consent required by the Act shall be given in the manner set out in
Form C in the Schedule to the Rules. Rule 8 (2) of the Adoption of Children Rules further provides
that all consents shall be sworn before a commissioner for oaths and shall be submitted together
with the affidavit of verification of the petition or accompanied by a separate affidavit of
verification.
PER Irene Mulyagonja Kakooza The consent to adoption 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. The respondent obtained the adoption order illegally contrary to the provisions
of s.47 of the Children Act for the respondent‟s failure to get the written consent for adoption from
the applicant. Also that the respondent or her advocates omitted to serve the petition on other
persons interested in the child contrary to the provisions of the Adoption of Children Rules. In this
case, court found no evidence on file to show that the petition was served on any of the interested
parties. For that reason, the judge found that the adoption order was fraudulently and or improperly
obtained. That the respondent‟s continued support to Nalule and the child‟s siblings while the
child was in Nalule‟s care may be construed as consideration for the adoption, however subtle.
s.48 (1) (c) of the Children Act provides that one of the duties of the court in an application for
adoption is to ensure that the applicant, or any person on behalf of the applicant, has not paid or
agreed to pay money or anything in place of money to the parent, guardian or any person in charge
of the child in consideration of the adoption of the child. There appears to have been some
consideration for the adoption. In that regard therefore, the adoption order was improperly
obtained. Adoption order was set aside.
S. 45(3) (3) An adoption order shall not 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 an adoption order.
In Re Edith Nassazi, an applicant was an uncle to a child who was physically mad capped. The
applicant’s wife had also consented to the application, the applicant was 44 years older than the

child and had fostered the child for 52 months. The probation and social welfare report also
recommended the applicant as a fit and proper person to adopt. The court noted that since the child
was physically handicapped and in need of specialized care which the applicant was willing and
able to provide, he was therefore authorized to adopt the child.
The court must examine the circumstances of a case to establish whether there are exceptional
circumstances warrants grant of the order and also in the best interests of the child.
IN THE MATTER OF MIREMBE NANSAMBA CLARE (A MINOR)
In the present case, the petitioner was a male and the child was a female, but he was the maternal
uncle who had been sending money for all the basic necessities of life to wit food, medication,
clothing and education to the said child. Court held that this qualified as exceptional circumstances
in the eyes of the court and adoption was granted.
Under 45 (4) the applicant should have fostered the child for 36 months under the supervision of
the social welfare officer. However the period was amended to 12 months.
The applicant must prove 12 months of fostering under the supervision of the social welfare officer
whose report helps to determine whether the welfare of the child is best served by the guarantee,
the application for adoption.
In Re Mageret Laker and Severino Apio Adoption case no.3of1998, court notes that a petition
for adoption must be verified by an affidavit to which must be annexed certificates and other
documents proper for proving the allegations. In the petition the age of the child must be approved
to the satisfaction of the court, unnecessary consent must be obtained and proved the welfare and
the wellbeing of the child should be the paramount consideration.
In the event that the applicant does not satisfy the requirements, the application for adoption is
disallowed, this means that the applicant is free to pursue an application for guardianship.
S.13 of the amendment act has amended S.45(4), providing fostering any for 12 months
44(5), a probation and social welfare officer is required to submit a report to help the court in
determining the application.
45(6) except where the application is by spouses jointly, an adoption order cannot be made to joint
applicants
Inter country adoption
In addition to S.45, there are other requirements under S. 46 which allows a person who is not a
Ugandan to adopt.
S, 46 provides that (1) A person who is not a citizen of Uganda may in exceptional circumstances
adopt a Ugandan child, if he or she—

(a) has stayed in Uganda for at least three years; this was amended to one year.
IN RE NDAGIZIMANA ANDREW
Adoption order was granted to an Italian couple who had been residents in Uganda for 34 months
and had fostered the child for 2 years and 5 months. Court held that the residence requirement of
36 months is not mandatory but regulatory and that the time requirement for fostering the child
was for government authorities to assess the suitability of the petitioners to adopt the child. The
child was two years and they had taken care of her since she was 3 months.
(b) has fostered the child for at least thirty-six months under the supervision of a probation and
social welfare officer; this was amended to one year.
(c) does not have a criminal record;

(d) has a recommendation concerning his or her suitability to adopt a child from his or her
country’s probation and welfare office or other competent authority; and
(e) has satisfied the court that his or her country of origin will respect and recognise the adoption
order.
IN RE RUBANGA KENE
The petitioners married Dutch citizens sought to adopt Edwin a four year old. The Husband was
50 years, the wife 49, they were husband and wife. They had fostered the child for 4 years and had
stayed in Uganda for 19 years. The parents of the child were dead. Court granted the adoption
order as all the requirements were fulfilled.
S.46(4) of the Act as amended provides that in exceptional circumstances the court may waive any
requirements as specified above;
IN RE MICHEAL BENJAMIN
Court held that although the petitioners had not been resident in Uganda for all three years, court
gave a liberal interpretation of S.46 while considering the circumstances of the case and the
interests of the child as paramount.
IN RE PAULA ROBERTSON; Court held that the provisions of S.46 are not mandatory on
account of the reason that the welfare principle is paramount.
IN RE SHARON
Court relying on the above decisions, granted adoption to an American couple who had resided in
Uganda for two years and 4 months holding that the provisions of S.46 are directory and provide
the conditions for which the court may exercise its discretion to grant an adoption order but the
guiding principle still remains the welfare principle.
S.46(5) of the Act as amended; Persons to facilitate courts of law with information to protect the
best interests of a child.

 Advocates
 Probation and social welfare officer.
 Guardian ad litem for children
NB. It must be noted that under the Children (amendment) Act 2016 inter-country adoption is
considered as the last option. S.46(6) of the amended Act. Also the amendment provides for
rescission of an adoption order if it is in the best interests of the child or if it was procured through
fraud or misrepresentation. S.46A of the amended Act (Peter Sebuliba‟s case is a good example).
IN THE MATTER OF PETER SSEBULIBA ALIAS NAMANSA JAMES
Irene Mulyagonja Kakooza made the following comments regarding adoption in Uganda.
“I have taken all the above factors into account but I still have to consider the aspect of
public policy and its links to welfare. Sadly, this is a case of an unlawful adoption where
the child went to live with a new family contrary to the provisions of the Children Act.
There is concern that the process of adoption in this country is not properly regulated. There
is a fear that I hold but which is also felt by the wider public that the adoption of children
in this country may be on its way to being transformed into a market and characterised by
a one-way flow of children from poor families to families that are financially better
endowed. There is also concern about the burgeoning reality of international adoption
which has been transformed into nothing short of a market regulated by the capitalist laws
of supply and demand, and characterised by a one-way flow of children from poor countries
or countries in transition to developed countries. There is a strong likelihood that the
inadequacy of adoption laws and the increased frequency of inter-country adoptions in this
country have led to the development of dishonesty, subterfuge, criminality and exploitation
of the vulnerable. The possibility exists that the courts have unwittingly been led to
participate in a subtle kind of child trafficking whose proportions have not yet been
established. This is especially so because many children were orphaned during the war in
Northern Uganda. Many children have also been orphaned by AIDS. Because of the grave
danger posed to such children by illegal adoptions, courts need to be very firm in situations
where the inadequate laws on adoption in Uganda are not respected.”
Adoption order set aside for having been obtained without the consent of the surviving parent.
S. 47 of Cap 59 , consent of parents if known is required. Take into consideration of the views of
the child and consent of any person not being parent but who has rights, obligations in respect of
the child.
Peter Sebuliba supra
Also S. 48 has additional requirements.
Court should be satisfied that all consent has been obtained. That its in the best interests of the
child. That no payment has been given to the applicant or to the parents of the child.

Effect of an adoption order.
S. 51 of Cap 59 Upon an adoption order being made—
(a) all rights, duties, obligations and liabilities of the parents and guardians in relation to the future
custody, maintenance and education of the child, including all rights to appoint a guardian and to
consent or give notice of consent to marriage, are extinguished; and
(b) there shall vest in, and be exercised by, and enforceable against the adopter all such rights,
duties, obligations and liabilities in relation to the future custody, maintenance and education of
the child as would vest in him or her if the child were the natural child of the adopter born to him
or her in lawful wedlock.
S. 52. Devolution of property.

(1) Where an adopter dies intestate, his or her property shall devolve in all respects as if the adopted
child were the natural child of the adopter
S. 53. Wills.
(1) In any testamentary disposition of property, whether or not in writing, made after the date of
an adoption order, any reference, whether expressed or implied, to the child or children of the
adopter shall be construed as including a reference to the adopted child.
(2) Where any disposition made by the adopter prior to the adoption order makes no provision for
the adopted child, the adopted child may apply to the court to vary the disposition by ordering such
provision as the court thinks equitable to be made for him or her
3) For the avoidance of doubt, an adopted person shall not be entitled to inherit from or through
his or her natural parents if they die intestate.
S.55. Disclosure of adoption.

(1) Where a child has attained the age of eighteen years, or, at an earlier age, on the child’s own
request or at the discretion of the adopter, the child shall be informed by the adopter of the identity
of his or her natural parents unless it is not in the child’s best interests to do so
Revocation
The Children Amendment Act provides for rescission of the adoption order. S. 46 A of the Act as
amended
“46 A. rescission of an adoption order
a. The court may, in exceptional circumstances, rescind an adoption order on application by-
a. The adopted child;
b. A parent of adopted child or other person who was a guardian in respect of the child;
immediately before the guardian;
c. The adoptive parent of the child;
d. Any person who contested to the adoption;
e. The minister in the case of an inter- country adoption; or
f. Any other person with justifiable reason;

b. An adoption order may be rescinded only if-
a. Rescission of order is in the best interest of the child; of misrepresentation.
b. The order was obtained through fraud or misrepresentation.
In re Peter Sebuliba alias Namwanga James court revoked an adoption order granted without
the consent of one of the parents.
c. Where an adoption order is rescinded-

a. The adoption order shall cease to apply in respect of the child concerned; and
b. All responsibilities, rights and other matters which had been previously terminated
by the adoption order in respect of the child shall be restored.
LAW OF SUCCESSION
The law of succession governs property of the deceased
To ensure the continuity of the estate of the deceased, the law of succession establishes in advance
how the property and the responsibilities of the deceased would be managed to counter act the
destructive effect of death. Succession i.e. provides for the peaceful and clear resolution of interests
particularly it allows the property, responsibilities, assets liabilities to remain within the blood line.
Preference is to the immediate close relative.
Although the moral succession and inheritance. Succession is the transmission of all rights, duties,
powers, privileges associated with a social provision on the other hand inheritance means the
transmission of property only. The law of succession is dived into two;
a. Testate succession = where succession is governed by a valid will.

b. Interstate succession= where succession is governed where there is no will or where
the will is invalid.
The main law is the succession act
It is important to note that Islamic and Sharia law would only apply if it does not conflict with the
written law.
The succession act applies to all Ugandans in both cases of testate and intestate succession.

Key definition
Testator. This is also known as a devisor and a he/ she is one who has left a will in which he/ she
has left or devised his property, rights, powers and privileges.
The beneficiaries are those who benefit from a will the estate is the aggregate property and
interests that a testator has left behind.
The executor is the person who appointed in the last will and entrusted with the responsibility of
putting into effect the terms of the will. The executor must be confirmed by the court.
A codicil is a document that supplements explains, alters, adds, to a will and is considered part of
that will. A codicil does not invalidate the original will but only aspects to which it relates to, all
codicils plus the original will the last testamentary disposition.
The Succession Act does not define a will but according to case law, a will is declaration of the
wishes of a person in regard to all matters of interest to take effect upon her death. It usually
provides for the distribution of property and interests, the beneficially, executor, a guardian and
sometimes where to be buried.
The will is ambulatory that is only takes effect on death

A will is also revocable
A will must be a written declaration
In order to be a valid, it must have animus testandi that is the intention to make the will / a revocable
ambulatory disposition of the maker’s property and interests which take effect after the death of a
testator.
Kakungulu v Kakooza court had that once a person makes a will she has opted out of customary
law and the Succession Act would be followed. Even when the will is invalid still the succession
act would be applicable.
Functions of a will
The purpose of a will is that it has a cautionary ritual function in that it demonstrates a serious
intention of the testate to dispose at the property on death, allocate responsibilities and rights.
It has an evidential function in that it creates reliable proof of the testator’s intention to the
relatives, other stakeholders including court.

It has a protective function in that it safeguards a testator making it difficult for the exploitation of
his estate.
It has a channeling or signaling function in that it assurers a testator that his wishes will be carried
out satisfying familiar legal processes. It clarifies the law applicable.
CAPACITY TO MAKE A WILL.
S. 36 of the Succession Act provides that; (1) Every person of sound mind and not a minor may
by will dispose of his or her property. Therefore persons capable of making wills
-. Must not be a minor
-. Must be of sound mind.
S. 36(3) introduces an element of protection of the rights of persons suffering from disability. It
states that a person who is deaf or dumb or blind is not thereby incapacitated for making a will if
he or she is able to know what he or she does by it.
S. 36(5) emphasizes that a will must be voluntary and that a person is fully aware of what they are
doing. It provides; (5) No person can make a will while he or she is in such a state of mind, whether
arising from drunkenness or from illness or from any other cause, that the person does not know
what he or she is doing.
MENTAL OR TESTAMENTARY CAPACITY
Persons of unsound mind are incapacitated from making a valid will, although this does not 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. S.36(4) of Succession
Act.
The test of mental capacity to make a will is not directly linked to mental disorder. Cockburn C.J.
set the test in Banks vs. Goodfellow (1870) L.R. 5 Q.B. 549 in the following terms: “It is essential
to the exercise of such a power that a testator shall understand the nature of the act and its effects,
shall understand the extent of the property of which he is disposing, shall be able to comprehend
and appreciate the claims to which he ought to give effect and with a view to the latter object that
no disorder of the mind shall poison his affections, pervert his sense of right, or pervert the exercise
of his natural faculties that no insane delusions shall influence his will in disposing of his property
and bring about a disposal of it which if the mind had been sound would not have been made.”
The above test is composed of four distinct elements.

i. The nature of the act of making a will and its effects
j. The extent of the property that is to be disposed.
k. The claims of family or friendship to which he ought to give effect and as a separate
element.
l. That no disorder of the mind shall poison his affections, pervert his sense of right, or
prevent the exercise of his natural faculties that no insane delusions shall influence his will.

Classic test
Where the testator possesses sound mind, memory and understanding at the time of making of a
will
1). The testator must be aware that they are making a testamentary disposition at the time of making
a will.
2). Must be aware of the property at his disposal
3). Must know those who are close to him of whom people expect him to give (beneficiaries)
4). Must have sufficient value of the property.
Why sound mind?

 To ensure the testator does what he or she intends
 To protect persons of unsound mind from exploitation
 To protect succession in a legal concept
 To protect the family unit
 To protect the estate under the law
 To demonstrate seriousness hence respect the testator’s wishes;
HARWOOD v. BAKER (1840) 3 Moo PC 282
A testator 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 it was necessary to determine whether he was at the time capable of
recollecting who those relations were, of understanding their respective claims on his regard and
bounty and of deliberately forming an intelligent purpose of excluding them from any share of his
property. That based on the evidence, he did not have sufficient recollection of his other family
members and the will was invalid.
BATTAN SINGH v ARMICHAND The testator had only 4 nephews as relatives and was fond
of them. He had been sick for a long time and one of the defendants had taken him to his home
and cared for him for 2 weeks. At the time of the execution of the will, he had been so sick and
said he had no relatives yet one of the defendants who was present was aware of this. He left the
property to the defendants who were in no way related to him.
HELD If the testator was reduced by disease to extreme weakness and declared in a will that he
had made a day before he died to people in no way related to him, the will was felt to be a will by
a man so enfeebled by disease as to be without sound mind or memory at the time of the execution.
The will was held to be invalid.
WOODS V SMITH 1993 CH 90 The testator told someone at the time he was making the will
that he had investments worth 105,000 where as the actual value was in excess of that. It was held
that this showed that he was seriously confused as to the extent of his assets and such confusion
of mind indicated the deceased lacked testamentary capacity.
Insane Delusions

The fact that the testator is labouring under insane delusions at the time of making the will is not
necessarily fatal to the validity of a will so long as the delusions leave the testator‟s power of
understanding unimpaired.
According to the court in the case of Dew vs. Clark (1826) 3 Add 79 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. An insane delusion will only
affect the testator‟s capacity to make a will if it in some way affects the way he disposes of his
property.
In Dew vs. Clark (1826) 3 Add 79 the testator 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. It was held that the will was invalid because
the delusion affected the manner of the testator‟s disposition of his property.
In Banks vs. Goodfellow (1870) LR 5 QB 549 the testator believed that evil spirits and a person
who was already dead were pursuing him. The court found that although the testator 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 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.
IN RE BOHRMANN’S ESTATE (1938) 1 ALL ER 24

A testator made three codicils to his will all giving substantial gifts to various charities. He later
began to suffer from an insane delusion that the London County Council was persecuting him. The
insane belief arose out of the council‟s attempt to acquire part of his land to build a hospital on it.
As a result of the delusion the testator executed a fourth codicil of which one clause provided that
all references to English charities should be read as referring to corresponding American charities.
Probate was granted of the will and the four codicils excluding only the clause in the fourth codicil
on the American charities, which was declared invalid for lack of testamentary capacity on part of
the testator. That the judgement in Banks v Goodfellow, made it perfectly clear that the law has
recognised that a man may suffer from delusional insanity and yet make a perfectly good will so
long as the delusions from which he suffers have no relation to any testamentary capacity.
Undue Influence
The test for undue influence;
i. That the person influencing the testator has excessive influence on the testator.
j. The influence must subvert or overpower the will of the testator
k. That the influence causes the testator to make a will that they would otherwise have not
executed.
All these elements must be satisfied
In Karanja v Karanja it was held that the onus probandi that a will was caused by fraud, undue
influence or importunity was on the person alleging the same.

WINGROVE v WINGROVE; 1885
HELD; To establish the presence of undue influence it is not enough to establish that a person has
the power to overbear the will of the testator. It must be shown that the will was a result of the
exercise of that power.
Sir James Hannen said:
“To be undue influence in the eyes of the law there must be – to sum it up in a word –
coercion. It must not be a case in which a person has been induced by means such as I have
suggested to you to come to a conclusion that he or she make a will in a particular person‟s
favour, because if the testator has only been persuaded or induced by considerations which
you may condemn, really and truly to intend to give his property to another, though you
may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is
only when the will of the person who becomes a testator is coerced in to doing that which
he or she does not desire to do that it is undue influence. The coercion may of course be of
different kinds, it may be in the grossest form, such as actual confinement or violence, or
a person in the last days or hours of life may have become so weak and feeble, that a very
little pressure will be sufficient to bring about the desired result, and it may even be that
the mere talking to him at that stage of illness and pressing something upon him may so
fatigue the brain, that the sick person may be induced, for quietness‟ sake, to do anything.
This would equally be coercion, though not actual violence. These illustrations will
sufficiently bring home to your minds that even very immoral considerations either on the
part of the testator, or of someone else offering them, do not amount to undue influence
unless the testator is in such condition, that if he could speak his wishes to the last, he
would say „this is not my wish, but I must do it‟. There remains another general observation
that I must make and it is this, that it is not sufficient to establish that a person has the
power unduly to overbear the will of the testator. It is necessary to prove that in the
particular case that power was exercised, and that it was by means of the exercise of that
power, that the will such as it is, has been produced.‟
CRAIG v LAMOUREUX
Two days before her death the testatrix, to whom morphine was being administered to alleviate
pain, executed two wills in the English form. She requested her husband to have a will prepared
and, on his instructions, his brother, an advocate, drafted a will whereby the husband was made
sole beneficiary. Upon this will being read over to her, in the forenoon, the testatrix took exception
to it because it ignored a promise, made to her father, that certain property she had received from
him should ultimately revert to members of her own family; and she did not then execute it.
Another will was drafted by the husband‟s brother to meet her wishes, but, either on account of
her drowsiness or because of the presence in her bedroom of friends, including her sister, the
plaintiff, the second will, though ready at noon, was not presented to the testatrix for signature
until late in the afternoon, when she attempted to sign it, but the brother declared it worthless
owing to the illegibility of the signature. On being told of this opinion, the will read to her in the
morning, or one similar in its contents, was presented to her for signature and her husband offered

to read it to her, but she declined to have this done, saying that she had already heard it read and
knew its contents; she then signed it with her mark in presence of witnesses.
The Supreme Court of Canada held against the will, that the evidence failed to establish that the
will in question expressed the true last testamentary wishes of the testatrix and, consequently, that
it should be set aside. On appeal to the Privy Council;
Per VISCOUNT HALDANE “When once it is proved that a will has been executed with due
solemnities by a person of competent understanding and apparently a free agent, the burden of
proving that it was executed under undue influence rests on the party who alleges this. There is no
reason why a husband or a parent on whose part it is natural that he should do so, may not put his
claims before a wife or a child and ask for their recognition, provided the person making the will
knows what is being done. The persuasion must of course stop short of coercion and the
testamentary disposition must be made with comprehension of what is being done.”
He quoted Boyce v Rossborough (1856) where it was decided that in order to set aside the will of
a person of sound mind, it is not sufficient to show that the circumstances attending its execution
are consistent with hypothesis of its having been obtained by undue influence. It must be shown
that they are inconsistent with a contrary hypothesis. Undue influence, in order to render a will
void, must be an inference which can justifiably be described by a person looking at the matter
judicially to have caused the execution of a paper pretending to express a testator‟s mind, but
which really does not express his mind, but something else which he did not really mean . . It is
also important in this connection to bear in mind that which was laid down by Sir James Hannen
in Wingrove v Wingrove (1885) it is not sufficient to establish that a person has the power unduly
to overbear the will of the testator. It must be shown that in the particular case the power was
exercised, and that it was by means of the exercise of that power that the will was obtained.‟
A distinction should be drawn between undue influence and persuasion.
HALL V HALL
The will was challenged for undue influence by alleging that the plaintiff had used violence and
made threats against the deceased. That therefore the will had been made in the consequence of
this for the sake of peace and quietness and did not express the deceased‟s real testamentary
intentions.
Court rejected the will on probate and held that to make a will a man must be a free agent but all
influences are not unlawful. That influence of a mistress to induce a will in the absence of coercion
does not amount to undue influence.
Per SIR JP WILDE;

“Even a reprehensible placing of pressure on a testator will not always be undue influence
so as to avoid the will. To make a good will a man must be a free agent. But all influences
are not unlawful. Persuasion appeals to the affections or ties of kindred, to a sentiment of
gratitude for past services or pity for future destitution or the like – these are all legitimate
and may fairly be pressed on a testator. On the other hand, pressure of whatever character
whether acting on the fears or hopes if so exerted as to overpower the volition without

convincing the judgement is a species of restraint under which no valid will can be made.
Importunity or threats such as the testator has no courage to resist, moral command
asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind
or social discomfort, these if carried to a degree in which the free play of the testator’s
judgement, discretion or wishes is overborne will constitute undue influence though no
force is either used or threatened. In a word a testator may be led but not driven and his
will must be the offspring of his own volition and not the record of someone else’s”.
Undue influence is common in confidential relationships, particularly those of a religious

nature. In Parfitt vs. Lawless (1872) LR 2 P & 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.
This means that persuasion is not necessarily undue influence unless it takes away the testator’s
power to decide.
RE HARDEN (1959 CYLB) 3448, 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 on 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 testator‟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.
Test for sound mind
Fraud S.47 Succession Act.
A will made under fraud, coercion or importunity is void. In Karanja and another vs. Karanja
(2002) 2 KLR 22, held that the burden of proving that a will was caused by fraud or coercion or
importunity was on the person alleging the same.
WILKINSON v JOUGHIN 1866 A gift to a married woman who represented to the testator that
she was free to marry him while indeed her marriage with another man was still subsisting was
held to be fraudulent and so it was omitted from probate.
SANYU LWANGA v SAM GALIWANGO
The respondent applied for letters of administration claiming that the deceased left no will. The
appellant sought to revoke the letters of administration granted to the respondent on ground that
the deceased had left a will in which she was named a beneficiary and that the respondent was
fraudulent,
HELD; S.233(1)(2)(b) Succession Act provides that a grant may be revoked where it was obtained
fraudulently by making a false statement. There was evidence that the deceased left a will which

fact the respondent was privy to. By making a false allegation to the effect that the deceased left
no will, the grant of the said letters was obtained by fraud and had to be revoked.
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 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 the Goods of Hunt (1875) LR P & D 250 the mistake related to the whole will. A woman living
with the sister prepared two wills in similar terms for their respective execution. By mistake, she
executed the will of the sister rather than the will she had prepared for her own. Probate of the will
was not granted on the grounds that the woman would not have executed the will had she known
it had the content of the will she had drawn up to her sister. She was deemed to have died intestate.
IN THE GOODS OF BOEHM (1891) P 247 A testator gave instructions for the preparation of
a will to his unmarried daughters Georgiana and Florence. The conveyance prepared the will and
mistakenly inserted the name Georgiana in both clauses of the will relating to gifts to the unmarried
daughters and omitted the name Florence altogether. Court held that the will was valid as it could
be understood from the reading despite the mistake of not including the second name. Jeune J
stated “mistake is to be regarded as a question of fact and there is no difficulty in striking out a
clause or a single word if shown to have been inserted by mistakes”.
RELATIONSHIP BETWEEN A CONTRACT AND A WILL

The Contracts Act S. 10 defines a contract as an agreement made with free will of the parties with
capacity to contract for a lawful consideration and with a lawful object and with an intention to
create legal relations. A will on the other hand is a written declaration of the wishes of a person in
regard to all matters of interest to take effect upon the death of the maker.
A contract and a will are different in many ways. A contract operates immediately to create
property interest in the promise, while a will is revocable or more speaking, inoperative or
ambulatory until the death of the testator at which time it operates to create a property interest in
the beneficiary .The general rule is that a contract takes precedent over a will, this is because a
contract binds the parties while the fact that a will is revocable, and ambulatory the testator may
change his intention (not bound by the will) but in such a case the contract stands.
In Synge v Synge, a man induced a woman to marry him by promising her that she would inherit
a house and land as a life tenant. After marrying him he conveyed the property to the daughter. It
was held that the defendant had entered into a binding contract.
As already stated, a contract takes precedent over a will but such a contract must be proved. Court
will restrain the revocation of a will where the contract has been proved. It recognises the contract
but restrains disposal of property in contravention with the contract. For a contract to stand where

there is a will, it is important that the basic elements of a contract that is offer, acceptance,
consideration, intention to create legal relationship and contractual capacity must be proved.
In order for a contract to have effect on a will it must be in writing and signed by each of the
parties. This is because such contracts relate to land and under English law it is a requirement for
such a contract to be in writing not that the contract is void but for purposes of proving it in court.
An oral contract might be hard to prove and is rendered inadmissible except where the equitable
doctrine of part performance is available. Most importantly also is that there must be an intention
to create a legal relationship between parties. The parties’ close relationship may not only cloud
an intention to create legal relations; it may also inhibit the search for certainty both of obligation
and subject matter.
The above requirements are exemplified by the case of Re Gonin, the plaintiff claimed that by an
oral agreement with her parents, it was agreed that in consideration of her going to look after her
parents, the parental house and its contents should be and become the plaintiffs property subject
only to the right of the parents to occupy the same during their joint lives and the life of the
survivor. Her mother under the belief that the plaintiff being an illegitimate child won’t benefit
under the will, drew a cheque of ££33,000 in the plaintiff’s favour and later sold part of the
property. It was held that the plaintiff had failed to prove the alleged contract and her oral evidence
was inadmissible. That in a family situation of such a nature one would not expect to find any strict
contractual bond between parents and daughter, the whole thing resting much more on the good
faith of each side without there being any intention on either side to enter into strict legal
relationship. That since the alleged contract concerned land, the plaintiff’s acts did not amount to
part performance of the alleged contract since she had no house of her own to give up and neither
had gone back to a house of strangers as she went back to her parent’s house.
Where there is an oral agreement, the party can only benefit from it if the equitable doctrine of
estoppel is available. By showing that they relied on the assurances of the other party which
induced their conduct and there was consideration.
In Greasley v Cooke the defendant was working as a maid for the deceased owner of the house for
a weekly payment. During her employment she cohabited with one of the sons of the deceased till
he died. The original owner had by his will left the property to his two sons. After the death of the
original owner, the defendant kept the house and looked after two house members of the family
who were living at the property and in particular taking care of one who was mentally ill till she
died. However, the defendant received no payment for her services as she reasonably believed and
was encouraged by the family to believe that she could regard the property as her home for the rest
of her life. She claimed a declaration that she was entitled to an irrevocable licence to occupy the
property as her home for the rest of her life. It was held that once it was shown that the defendant
had relied on the assurances given to her, the court would infer that her conduct was induced by
those assurances and declare that in equity she should be allowed to remain in the house for so
long as she wished. By cohabiting with one of the sons and looking after a mentally ill girl without
payment amounted to consideration and hence estoppels; worked in her favour. Lord Denning’s
stated that the burden of proof is on the defendant who needs to prove that the detriment was not
suffered as a result of their encouragement

For a contract to have effect on a will it must be specific and property devised is clearly spelt out.
In Elizabeth Schaefer v Schuhmann and ors, by a codicil to his will a testator left his house to
the appellant on a condition that he was still his housekeeper at the date of his death. From the date
of execution of the codicil the appellant did not receive any wages. The testator also made a
provision to is sons and daughters but the daughters claimed that the provision was not adequate
and the court ordered that legacies of the daughters be increased with part burden on the property
given to the appellant. It was held that the testator had bound himself by an enforceable contract
to leave property to the appellant by his will and court had no power to touch his property. That if
the contract is to devise or bequeath specific property the position of the promisee during the
testator’s life time is stronger than if the contract is simply to leave legacies. If the testator sells
the property during his lifetime the promisee can treat the sale as a repudiation of the contract and
recover damages. Court further noted that a contract to leave property by will does not deprive the
testator of his legal power to make a will inconsistent with the contract. Such a will would be valid
as a testamentary act but the doctrines of equity would attach the obligation to the property. In this
case the status between the appellant and the testator was held to be one of employer and employee.
S.136 of the Succession Act provides that if there is a deficiency of assets to pay legacies, a specific
legacy is not liable to abate with the general legacies.
Where there is a valid contract to devise property, the beneficiary won’t be put to election by virtue
of benefiting again under the will as the legacy would have been adeemed (taken out of the will).
A valid contract makes the rules of election in operative and instead incorporates the rule of
ademption.
This is shown by the case of Re Edwards where the testatrix by her will left property to seven
persons including Wright. Also by an oral agreement he promised to devise another property to
Wright in consideration of him agreeing to reside with the testatrix and perform certain household
duties for her. The issue was whether Wright was bound to elect between the will and the other
property? It was held that in the events that had happened after the making of the will, a specific
devise had been adeemed and no question of election arose. The said property had been disposed
of in the testatrix lifetime. For election to occur there must be intention of the testator, property
given should belong to another and the benefit must be conferred on another. In this case the
property had been contracted out of the will and there was nothing to devise.
S.139 of the Succession Act provides that if anything which has been specifically bequeathed does
not belong to the testator at the time of his or her death, or has been converted into property of a
different kind, the legacy is adeemed; that is, it cannot take effect by reason of the subject matter
having been withdrawn from the operation of the will
A promise to leave property in under a will may create a binding contract where the elements of a
valid contract have been proved. Breach of that promise entitles the affected party to damages.
In Parker v Clark and anor, the defendants, an elderly married couple living in a large house at
Crammond invited the plaintiffs a married couple 20 years younger than them who were their
friends to leave their residence and live with them at Crammond. This meant that the plaintiffs had

to sell their cottage and the defendants by letter assured the plaintiffs that this would be solved by
leaving Crammond to the plaintiff’s wife, her sister and daughter after the death of the defendants.
After setting out a fifty-fifty maintenance costs, the plaintiffs sold their cottage and went to live
with the defendants. However after one year the partnership did not work out well and the plaintiffs
were asked to leave to find somewhere else to live. It was held that the language of the letter and
the reply thereto taken together with the surrounding circumstances showed that the parties
intended to enter into an agreement in the terms of the letter which was binding in law and not a
mere unenforceable family arrangement. The defendants had breached the contract and were liable
to pay damages.
A testator cannot attach in a will a deed to which he is not a party. In the Goods of Sibthorp, the
testator in that part of his will which relates to the distribution of his residue, referred to a certain
deed of settlement in which he had no concern or interest. The persons interested in the deed
refused to produce it or to allow a copy of it to be made for purposes of incorporation in the probate.
It was held that the probate of the will can issue without the incorporation of the deed or any part.
That the court cannot compel third parties to produce private documents which may form part of
the title to estates in which the testator had no concern.
A breach of testamentary contract may occur by intentional repudiation of the contract by either
party. The revocation that causes such breach of contract is that intentionally perpetuated by the
testator and not that caused by operation of law, for example, subsequent marriage. In case of
bankruptcy, mortgage deeds are not destroyed and damages can be recovered for breaching a
contract relating to such a deed. This was considered in Robinson v Ommanney, where a
mortgagor appointed certain property by will as security to the mortgagee and covenanted not to
revoke the will. She became bankrupt and obtained her discharge. However, she later made another
will in which she revoked all previous wills made by her and appointed the funds to other persons
without including the mortgagee. It was contended that such a contract was void for being in
restraint of marriage. It was held that a covenant not to revoke is not necessarily against public
policy and was valid only to the extent that it is intended to prohibit intentional revocation of the
Will. That the consideration for the contract to complete the security of the mortgagee is not
destroyed by the discharge in bankruptcy. The breach of the covenant took place after the
bankruptcy and the mortgagor was liable in damages for breach of covenant.
From the above, it must be noted that wills and contracts co-exist. However, where a contract is
proved it supersedes a will. This is because once a contract is made it binds both parties, but a will
being ambulatory does not bind the testator. One of the cardinal rules of making a will is that the
testator has the freedom to devise his property but only such property which he owns. If therefore
there is a binding contract, courts will not allow the testator to devise such property which he no
longer owns.
The relationship between a contract and a will does not disadvantage the family as such since the
property to be inherited should be only what the testator owns and once a contract is proved it
should supersede a will as the person would have supplied consideration. As discussed courts have
held that where a contract is made in regard to specific property, the contract prevails over the will

that devises the same property and does not in any way disadvantage the family as it is not property
of the testator.
EXECUTION OF A WILL
How to make a will?
As a general rule a will must be in writing. However, there is no formal method of writing a will.
S. 49 of the Succession Act provides a format for a will but it’s at the discretion of the testator.
Under S. 61 of the Act, it is not necessary to use technical words as long as the intention of the
testator can be got.
IN THE GOODS OF COLES
The deceased executed in the presence of two witnesses a paper, which commenced „i have given
all that i have to A an ]d her two sons.‟ It contained directions in what way the deceased desired
his property to be distributed but without any reference to his death. There was evidence that he
executed this as his will. HELD; where a paper is intended by the testator to take effect after his
death, it will be admitted to probate whatever maybe its form. The paper was held to be
testamentary.
This case followed cock v cooke
COCK v COOKE
The deceased left a paper in the following words; „i wish my sister to have my bank book for her
own use‟. She told a friend that she wanted to make a will in favour of her sister. After writing out
the paper a second witness was called in and it was executed. The plaintiff gave evidence that the
deceased made declarations to the effect that she wished her to have the money in the bank after
her death. HELD; it is undoubted law that whatever maybe the form of a duly executed instrument,
if the person executing it intends that it shall not take effect until after his death and it is dependent
upon his death for its vigour and effect, it is testamentary. The very nature of the transaction points
to her intention that the paper should only take effect in the event of her death an event which both
she and her sister considered certain and imminent. The paper was testamentary and not a present
deed of gift
Execution of Unprivileged wills.
The will must be executed in a manner provided by law. This is provided for under S. 50 of the
Succession Act. It states’
S. 50 Execution of unprivileged wills.
Except as provided by this Act or other law for the time being in force, every testator not being a
member of the armed forces employed in an expedition or engaged in actual warfare, or a mariner
at sea, must execute his or her will according to the following provisions—
(a) the testator shall sign or affix his or her mark to the will, or it shall be signed by some other
person in his or her presence and by his or her direction;

(b) 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;
(c) the will shall be attested by two or more witnesses, each of whom must have seen the testator
sign or affix his or her mark to the will, or have seen some other person sign the will in the presence
and by the direction of the testator, or have received from the testator a personal acknowledgment
of his or her signature or mark, or of the signature of that other person; and each of the witnesses
must sign the will in the presence of the testator, but it shall not be necessary that more than one
witness be present at the same time, and no particular form of attestation shall be necessary.
1. Signature by the testator.

A will must be signed by the testator or the testator can affix his or her mark. It can also be signed
by some other person in in the presence and on the direction of the testator.
In Craig v Lamourex, a will was signed by affixing a Cross.
Court gives credence to handwritten wills (holograph)
IN THE ESTATE OF COOK

The deceased made a holograph will which commenced with the words “i Emma Cook declare
this to be my last will‟ and then set out her testamentary dispositions in the presence of two
witnesses, the deceased wrote the words “your loving mother‟ at the foot of the document and the
witnesses duly attested the same. Whether the will was signed?
Court referred to in the Goods of Sperling where the deceased having signed his will in the
presence of a servant, the servant described himself as “servant of Mr. Sperling” not writing his
name or giving any further identification. This was held to be sufficient attestation and
subscription. In Baker v Dening, court held that where a party makes a mark to be a signature
instead of writing his name, it is sufficient signing. HELD; the words „your loving mother‟ were
meant to represent the name of Emma Cook hence constituted sufficient signature.
In Cook v Cooke, it was held that the primary consideration is the animus testandi. It is immaterial
to look at the words written and the acts done by the testator in the light in which a person of her
imperfect education would be likely to regard them and do not attach anything like a technical
meaning of which she was ignorant to the language she has used.
Court will take into consideration the circumstances of the testator particularly the level of
education in giving effect to the will.
In Goods of Cole, the issue was the language using words “given” instead of “give”. It was held
that the testator intended that property pass after the death.

Position of signature
The testator’s signature must be placed at the foot or end of the will. S.50(b) of the Act provides
that the signature of the testator must be so placed as to give effect to the writing as a will.
In Wood v Smith, it was held that as long as the intention of the testator can be discerned, the
placement of the signature is immaterial.
IN RE BEADLE
The will of the testatrix was dictated in the presence of her two executors. It was written on a single
piece of paper and signed by her and one of the executors in the top right hand corner. The other
executor did not sign. The testatrix then placed the paper in an envelope and wrote on the front‟
“My last will and testament E.A Beadle to Charlie and Maysie (the executors)”on the back of the
envelope was written “we certify that the contents of this letter were written in our presence” and
both the executors signed. The sealed envelope was then put away with the testatrix papers.
Whether the will was duly executed?
HELD Since the words after the signature were inoperative by law, the sheet of paper was
insufficient as a will nor was it sufficient when taken with the envelope for the court was satisfied
that in writing her name on the front of it the testatrix meant her signature to be no more than a
label identifying the document when placed with other papers. That in any event the signature on
the front of the envelope was unattested and the signing on the back was merely to record that both
the executors were present when the will was signed and not to give effect to the will. Accordingly
the court would pronounce against the will.
This must be contrasted with the case of In the Goods of Mann where a testatrix made an unsigned
will which she placed in an envelope. On the envelope were the words „last will and testament of
J. Mann‟ followed by the signature of the testatrix and two other persons. Probate was granted to
the will since court found that the signature of the testatrix on the envelope was intended to give
effect to the will.
IN THE ESTATE OF BERCOVITZ
A will was made on a single sheet of paper at the top of which were the words „my last will and
testament‟ followed by an attestation clause followed by the signatures of the testator and the two
attesting witnesses. There followed various dispositions and the testator‟s signature appeared
again at the bottom of the sheet but without those of the attesting witnesses.
HELD; Since on the facts the witnesses were not witnessing the lower signature at all, that was
not an effective signature properly attested in accordance with the law and nothing underneath the
top signature could be effective. The witnesses did not see the lower signature because it was
covered up and only saw the upper signature so that they were attesting that signature. No signature
gives effect to any disposition which is underneath or which follows it or any disposition inserted
after the signature has been made.

WOOD V SMITH 1991 The testator made a will commencing with the words, “my will by Percy
Winterbone” but did not sign it at the end after setting out the dispositions he wished to make.
When the attesting witnesses remarked on this he explained that he had signed will at the top and
this sufficed under the law.
HELD; That the signing of the testator’s name at the top of the document and the dispositive
provisions were part of the same single operation and the signing was clearly intended to give
effect to the will as contemplated by the law as being valid. “The complimentary requirements of
a signature and of an intention that the signature should give effect to the will demanded a practical
approach. A written name not being a normal signature was capable of being a signature but that
where a testamentary document was signed before the dispositive provisions had been written,
affirmative evidence was necessary to show that a testator had intended the signature to give effect
to the provisions. That by writing his name and the dispositive provisions in one single operation,
the deceased had provided such evidence.”
Re Harris [1952] 2 All ER 409, Willmer J ; T wrote at the top of a page "My last will and
testament", and signed it immediately below; she then listed various dispositions. The judge
refused to admit the will to probate: the signature was not at the end, and it was not otherwise
apparent that T intended it to give effect to the document as her will.
2. Attestation.
S. 50(c) requires that a will should be attested by two witnesses who must have seen the testator
sign. It is not necessary that both witnesses should be present at the same time.
The will must be signed and attested by two witnesses.
ADMINISTRATOR GENERAL V NORAH NAKIYAGA
The plaintiff applied to court for the determination of the validity of the wills that were in his
custody. One of the wills was not attested at all and the other though attested the witness could
neither be identified nor found.
HELD; the first will being signed by the deceased but not attested was invalid for the reason that
it was not attested as required by S.50 of the Succession Act. The second will could not be relied
on as its execution was not proved by one of the attesting witnesses as required by the mandatory
provision of sections 66 and 67 of the Evidence Act.
To qualify as a witness one must have seen the testator sign and that person must sign the
will.
BROWN V SKIRROW
The testatrix took her will to a shop to have it witnessed by the shop assistants W1 and W2. The
testatrix signed the will observed by W1 but W2 was busy serving a customer and paid no heed
when the testatrix signed it. W1 and W2 then attested the will.
HELD; the will was not attested on the ground that the testatrix did not sign in the presence of W2
even though W2 had been in the room when the testatrix signed.

Re Gibson [1949] 2 All ER 90, Pearce J ; A testator T made a codicil (an amendment to a will)
attested by two witnesses, one of whom was blind. The judge said the codicil could not be accepted
as valid: mere bodily presence was not enough, and a blind man could not be a "witness" to
something he could not see.
Witnessing part signature does not amount to attestation.

IN RE COLLIN G (1972)1 WLR 1440 The testator while a patient in hospital started to sign his
will in presence of a nurse and another patient both of whom he had asked to act as his witnesses.
Before he had completed his signature, the nurse left to attend to a patient elsewhere in the ward.
During her absence the testator completed her signature and the other patient who had been present
during the whole exercise signed as a witness in presence of the testator, when the nurse returned
too, the other patient and testator acknowledged their signatures to her and she signed as a witness.
Whether the testator’s signature complied with the law?
HELD; that a part of the testator’s name which was subscribed before the nurse left was not the
signature of the testator nor was it a mark intended to represent the name and therefore the
signature did not comply with the law. It was essential that the testator should have signed the will
or acknowledged his signature before either of them had attested and subscribed to the document.
Witnessing part signature is not attestation.
This is however different from where the testator shorten his name. In the Goods of Chalcraft
1948 the testator executed a codicil just before she died. Because she was so ill, she could not
complete her signature and what appeared on the codicil was “E’chai”. Court held that this was a
valid signature.
In Re Nicholas, Court held that its not necessary for one to witness the contents of the will.
Void bequest;
S. 54(1) of the Act provides that a bequest to an attesting witness is void but the attestation is valid.
However, S. 54(2) provides that a legatee under a will shall not lose his legacy by attesting a codicil
which confirms the will.
Ross v Caunters [1979] 3 All ER 580, Megarry VC ; Solicitors DD drew up a will on T's
instructions and sent it to him for execution; P's husband was one of the witnesses. DD had not
warned T beforehand that this would invalidate the bequest to P, and did not notice anything when
the will was returned to them for safe keeping. On T's death, DD told P the gist to her was invalid,
and P sued successfully in negligence.
Incorporation of documents

Where gifts are made by documents incorporated in the will, there must be in the will itself a
reference to the documents. However, words in the will and corresponding words on the document
may constitute sufficient incorporation.
IN THE ESTATE OF SAXTON
The plaintiff bank claimed probate as executors named in the last will of the deceased contained
in a dated paper writing and 4 other undated paper writings found therewith. The defendant denied
that the 4 paper writings found with the will were either duly executed or incorporated by reference
in the will and formed no part the will. Evidence showed that the testator sat down to write his will
at about 11am and continued up to 1.15pm when he telephoned the defendant bank, for two
witnesses to come to his house. The witnesses were sent and the will duly executed and the
document was placed in a drawer. About a month later, when the testator was seriously ill, this
drawer was taken up to his bedroom and the testator took from it two documents which he put into
an envelope. After his death, the actual will was found to be of no dispositive effect (contained no
disposition of property at all). It contained an appointment of executors and then proceeded as
follows; “I give and bequeath..to the following persons”. There was found with the will a number
of lists (the 4 papers referred to hereinbefore) with the statement; “I wish to leave the following
amounts..” Whether the lists are sufficiently identified and referred to by the will?
HELD. The body of the will contains no disposition of property at all if one excludes the lists. It
is only by incorporating the lists that the will has any dispositive effect. The words “the following
persons2 connotes some list of their names. The words 2I wish to leave the following amounts” is
sufficient to establish a cross reference between those words and the words of the will. In the
circumstances of the case, it must be taken that the lists were intended to be part of the will and
the will and the lists were admitted to probate.
Where the will is executed in different pieces of paper stapled together
IN THE ESTATE OF LITTLE
A draft will consisting of 4 sheets of paper and a back sheet all stapled together were to the
deceased by his solicitor. The evidence as to the attestation was that on 21 November 1967, the
deceased placed a number of apparently unattached sheets of paper on a table with the reverse of
the back sheet on the top, wrote his own name some inches down the page and caused the attesting
witnesses to sign beneath. On the death, the will was retrieved from deposit in a bank stapled
together in the order in which they had been dispatched from the solicitor.
HELD; even if there were no mechanical attachment of the separate sheets of the will at the time
of execution, the pressing of the sheets together by the deceased constituted a sufficient nexus to
produce a single testamentary document.
IN RE WHITE (Knight v Briggs) By his will dated November 29 1922, the testator directed his
trustees to hold three-twentieths of his residue upon trust for his sister. By a codicil, which was in
form a direction to prepare a codicil, the testator instructed his solicitor Mr. Knight to settle bequest

to his sister as in a former will. The codicil was admitted to probate. However, the solicitor had in
his possession only one will of the testator dated October 29, 1920, in which the sister‟s share was
settled. Which former will did the codicil refer to?
Held; There was only one will by reference to which instructions to prepare a codicil could be
carried out; namely, the will dated October 29, 1920 in possession of the solicitor which was
identified as a former will.
CONDITIONAL WILLS
This takes effect on the happening of a specific event/condition that is specified in the will. The
condition in the will must be satisfied.
S. 118 provides that a bequest may be made to any person upon happening of a specified uncertain
event.
In Corbett v Newey, court considered extrinsic evidence to infer a condition in a will where a
condition was not specifically provided. It was a conditional will notwithstanding the absence of
any reference to the condition to be fulfilled on the face of the will.
S. 113 provides that a bequest upon the happening of an impossible event is void.
S. 114, a bequest upon a condition the fulfilment of which would be contrary to law or morality is
void.
S. 115 where a will imposes a condition to be fulfilled before the legatee can take a vested interest
in the thing bequeathed, the condition shall be considered to have been fulfilled if it has been
substantially complied with.
S. 119; a bequest under S. 118 cannot take effect unless the condition is strictly fulfilled.
JOINT WILLS.
This is where two or more persons express their wishes death in one document which complies
with the formalities of a will, that is, two people execute a valid will in one document.
However, the joint will takes effect as a separate will of each of the testators. Because of the
practical difference of this will by presenting the same document twice to probate, such wills are
discouraged.
Re Hagger explains the principles of trusts in relation to will. It cites Dufour v Pereira where there
is a joint will, the parties own property in trust of each other.
IN RE HAGGER

A husband and wife made a joint will whereby they left certain property which each possessed at
the time of the death of the spouse first dying to the survivor for life with certain absolute
remainders over and they agreed that the will should not be revoked without their mutual consent.
The wife died first and as from her death the husband received the income from the whole estate.
The husband died leaving everything to his executors upon trust to be divided equally among
various persons, several of whom were not mentioned in the joint will. HELD; that from the death
of the wife the property of which the husband was then possessed was subject to a trust under
which the legatees in absolute remainder took vested interests subject to the life interest of the
husband. Court applied Dufour v Pareira where Lord Camden held that; “ the instrument itself is
evidence of the agreement and he that dies first, does by his death carry the agreement on his part
into execution. If the other refuses he is guilty of fraud, can never unbind himself, and becomes a
trustee of course. For no man shall deceive another to his prejudice. By engaging to do something
that is in his power, he is made a trustee for the performance and transmits that trust to those that
claim under him.‟‟
Court therefore held that „Where there is a joint will, on the death of the first testator the position
as regards that part of the property which belongs to the survivor is that the survivor will be treated
as holding the property on trust to apply it so as to carry out the effect of the joint will. If the
survivor takes a benefit conferred on him by the joint will he will be treated as a trustee and he
will not be allowed to do anything inconsistent with the provisions of the joint will.”
MUTUAL WILLS
This is where two or more people make wills in substantially similar terms. These are normally
husband and wife who agree that they will leave their property to the survivor and on death of the
survivor to the children.
The doctrine of mutual wills requires that the parties entered into an agreement to make and not to
revoke the mutual wills. Where a person died without altering his will, the surviving testator is
bound by the mutual will. This is to prevent fraud. It also applies where the will is altered to change
the share or include new beneficiaries.
IN RE OLDHAM A husband and wife made mutual wills in the same form in pursuance of an
agreement so as to make them, but there was no evidence of any further agreement in the matter.
Each gave his or her property to the other absolutely with the same alternative provisions in case
of lapse. The wife having survived and accepted her husband’s property under his mutual will
subsequently married again, and made a fresh will ignoring the alternative provisions of her own
mutual will.
HELD; that in the circumstances there was no implied trust preventing the wife disposing of her
property as she pleased. Where there is no agreement not to revoke the will, a trust is not created.
STONE V HOSKINS
A husband and wife agreed to make mutual wills under which the husband left all his property to
his wife while the wife had thereby left all her property to him. However the wife secretly without
notice to the husband and contrary to the said arrangement purported to revoke her will and to

make a fresh one whereby she progressively reduced the benefits to the husband. The wife died
first.
HELD; if two people made wills which were standing at the death of the first to die, and the
survivor had taken a benefit by that death, the survivor cannot depart from the arrangement on his
part, because by the death of the other party, the will of that party and the arrangement have become
irrevocable. However where the first to die has not stood by the bargain, her mutual will has in
consequence not become irrevocable. The only object of notice is to enable the other party to the
bargain to alter his or her will also but the survivor in the present case is not in any way prejudiced
as he has notice as from the death. The husband was therefore not bound by the mutual will since
the wife had already altered hers before she died.
It must be noted that in both Oldham and Hoskins though there were arrangements to make mutual
wills, there were no agreements not to revoke.
If the will does not incorporate the statement not to revoke, there is no binding contract. Without
an express agreement, there could be no trust in equity and no right in damages.
Conditions to be bound by mutual wills.

i. There must be an agreement not to revoke; (Re Dale, Gray v Perpetual Trust)
GRAY and Ors v PERPETUAL TRUST COMPANY

The husband and wife both made wills and these were contemporaneous. By the husband‟s will
he left all his property to trustees to pay income to his wife for life and the remainder for their
children. The will of the wife made on the same day appointed the respondent company as trustees
and executor and she also left all her property to her trustees to pay income to the husband and on
his death to their children. The husband died first and the wife took the benefits conferred on her
by his will and she later made another will which interfered with the provisions of the earlier will
and by her new will she bequeathed all her property to her daughter. Whether the simultaneous
wills of the husband and wife were mutual wills that neither the husband nor the wife could revoke
without the assent of the other?
HELD; it is necessary to establish an agreement to make and not to revoke mutual wills, some
understanding or arrangement is insufficient without such a definite agreement there can no more
be a trust in equity than a right to damages at law. The fact that a husband and wife have
simultaneously made mutual wills giving each to the other a life interest with similar provisions in
remainder is not itself evidence of an agreement not to revoke the wills in the absence of a definite
agreement to that effect. Therefore there is no implied trust precluding the wife from making a
fresh will inconsistent with her former will even though the husband has died and she has taken
the benefits conferred by his will.
IN RE DALE (Proctor v Dale)

In 1988 a husband and wife each executed identical wills. Each contained a bequest of all real and
personal property in favour of the testator’s daughter and son in equal shares or the survivor of
them and appointed them as executors. Two months later, the husband died without having altered
or revoked his will and probate was granted. Later the wife made a fresh will which revoked all
her former wills and testamentary dispositions and gave the son majority of the estate. The plaintiff
issued a writ alleging that the mutual will had been made and pursuant to and in consideration of
a binding and irrevocable agreement and that on the death of the husband the wife had become
bound in equity to give effect to the agreement and that as a consequence of revocation of the
mutual will, the son held the property as a trustee. Whether the application of the doctrine of mutual
wills necessitated the second testator to die to have obtained a personal benefit under the will of
the first testator to die?
HELD; The application of the doctrine of mutual wills required the parties to have entered into a
legally binding contract to make and not to revoke mutual wills and that the first testator to die had
performed his part of the agreement. That since the aim of the principle underlying the doctrine
was to prevent fraud on the first testator to die, it was not confined to cases in which the surviving
testator had benefited under the will of the first testator to die but extended also to cases where the
two testators had left their property to beneficiaries other than themselves. Issue answered in the
negative.
i. The first party must have died without revoking their will. (Re Dale; Stone v Hoskins)
STONE V HOSKINS
A husband and wife agreed to make mutual wills under which the husband left all his property to
his wife while the wife had thereby left all her property to him. However the wife secretly without
notice to the husband and contrary to the said arrangement purported to revoke her will and to
make a fresh one whereby she progressively reduced the benefits to the husband. The wife died
first.
HELD; if two people made wills which were standing at the death of the first to die, and the
survivor had taken a benefit by that death, the survivor cannot depart from the arrangement on his
part, because by the death of the other party, the will of that party and the arrangement have become
irrevocable. However where the first to die has not stood by the bargain, her mutual will has in
consequence not become irrevocable. The only object of notice is to enable the other party to the
bargain to alter his or her will also but the survivor in the present case is not in any way prejudiced
as he has notice as from the death. The husband was therefore not bound by the mutual will since
the wife had already altered hers before she died.
j. When the two conditions are satisfied, the surviving party holds the other’s property on
trust. (Re Greene, Durfour v Pereira, Re Hagger. But no trust is created in absence of an
agreement not to revoke. (Re Oldham)

IN RE GREEN
A testator and his wife made mutual wills in like terms in 1940. They then had little property but
were subject to a life interest, absolutely entitled in reversion to a substantial estate given to them
in equal shares or to the survivor if only one of them survived the tenant for life. The wife agreed
that if she survived the man and have use of all his property she would provide in her will for the
carrying out of the husband’s wishes as expressed in his will and in consideration of such promise
by the husband, she agreed to leave all her property on the husband’s undertaking to provide for
the carrying out of the terms of her will. In his will the husband directed that his trustees should
stand possessed of his residuary estate upon trust for his wife if she survived him absolutely and if
not, to divide into two equal moieties or half shares held onto respective trusts. The wife died in
1942, her estate was succeeded to by the testator. In 1943 the tenant for life died and the testator
received the whole estate of the wife. He remarried in 1945, made a second will devising a number
of gifts to individuals and charities some of which differed from the provisions of his first will,
and he left his residue to his second wife.
HELD The effect of the mutual scheme entered into by the spouses, as expressed in the will, was
that the wife’s moiety was impressed upon a trust binding on the testator while the testator’s moiety
remained at his free disposition and accordingly that the estate must be divided into two moieties
one of which was to be distributed in accordance with the trusts in the first will while the other
was to be distributed in accordance with the terms of the second will. The first will must take effect
not as a will (had been revoked by marriage) but as evidence of a trust which is plainly to be
discerned in the two wills.
IN RE HAGGER
A husband and wife made a joint will whereby they left certain property which each possessed at
the time of the death of the spouse first dying to the survivor for life with certain absolute
remainders over and they agreed that the will should not be revoked without their mutual consent.
The wife died first and as from her death the husband received the income from the whole estate.
The husband died leaving everything to his executors upon trust to be divided equally among
various persons, several of whom were not mentioned in the joint will.
HELD; that from the death of the wife the property of which the husband was then possessed was
subject to a trust under which the legatees in absolute remainder took vested interests subject to
the life interest of the husband.
Court applied Dufour v Pareira where Lord Camden held that; “ the instrument itself is evidence
of the agreement and he that dies first, does by his death carry the agreement on his part into
execution. If the other refuses he is guilty of fraud, can never unbind himself, and becomes a trustee
of course. For no man shall deceive another to his prejudice. By engaging to do something that is
in his power, he is made a trustee for the performance and transmits that trust to those that claim
under him.”
Court therefore held that “Where there is a joint will, on the death of the first testator the position
as regards that part of the property which belongs to the survivor is that the survivor will be treated
as holding the property on trust to apply it so as to carry out the effect of the joint will. If the

survivor takes a benefit conferred on him by the joint will he will be treated as a trustee and he
will not be allowed to do anything inconsistent with the provisions of the joint will.”
REVOCATION
Revocation by marriage.
Under S.56 every will shall be revoked by the marriage of the maker.
FARASIA RWABAGANDA V DONATO BAHEMURWABUSHA
The deceased had in 1964 got married to the defendant in church but they separated in 1965.
Though they were not legally divorced, the defendant never returned to the matrimonial home till
the death of the deceased. The deceased made a will in 1966 and in 1970 married the plaintiff
customarily. Whether the will of 1966 was revoked by the marriage of 1970?
HELD; A will is revoked by the marriage of the maker. The will of 1966 was revoked when the
deceased married the plaintiff in 1970 and being no subsequent will, the deceased would be
regarded as having died intestate.
A void marriage does not revoke a will
METTE V METTE 1859
The testator made a will during his marriage to his wife but shortly after her death, he married her
half sister. The marriage was held to be void ab initio because it fell within the prohibited degree
of affinity and therefore could not have revoked the earlier will which stood as valid.
However, a voidable marriage also revokes a will.
RE ROBERTS (1978) 3 ALL ER 225
In 1973 the deceased made a will under which the defendant was a beneficiary. The deceased
subsequently married the plaintiff. It was alleged that the deceased was suffering from senile
dementia at the time of marriage and that there was no valid marriage which could have revoked
the will.
HELD; The fact that either party did not consent to the marriage in consequence of unsoundness
of mind merely made the marriage voidable and not void. A marriage which was voidable always
revoked an earlier of a party to the marriage whether or not the marriage was subsequently annulled
because annulment of a voidable marriage was not retrospective in effect. Therefore there was a
valid marriage for the purpose of revoking any prior will.
The exception is that a will expressed to be made in contemplation of a marriage shall not be
revoked by the solemnization of the marriage contemplated.
PILOT v GAINFORT The testator, being married to a woman who had left him some years
before and had not been heard of, bequeathed the whole of his estate to a woman with whom he

was living and whom he described as his wife in the will though she was not his wife at the date
of the will. Shortly afterwards he married the woman in question, relying on the legal presumption
of the death of his wife. Whether solemnization of marriage revokes an earlier will made in
contemplation of that marriage?
HELD; That the marriage was prima facie valid and that the will was expressed to be made in
contemplation of it, and was accordingly not revoked by the marriage. Therefore the solemnization
of marriage does not revoke a will made in contemplation of that marriage.
IN THE ESTATE OF LANGSTON

The testator was a widower who executed a will bequeathing property to his fiancée Edith as sole
beneficiary and appointed her as sole executrix. 2 months after executing the will, he married her.
Whether a will with the expression unto my fiancée is a will expressed to be in contemplation of
marriage?
HELD The test is; did the testator express the fact that he was contemplating marriage to a
particular person? Court cited Sallis V Jones where the expression used was that “this will is made
in contemplation of marriage. Court rejected the expression because it did not refer to a particular
marriage. Court also cited In Re Knight where by his will a testator gave all his estate to “E.L.B
my future wife” and thereafter married E.L.B and it was held that the will was not revoked by that
marriage. Court held that in this case when the testator used the words “unto my fiancée Edith”,
he was expressing a contemplation of marriage to that named lady. Relying of Re Knight as an
authority court held that there is no difference between “my future wife” and “my fiancée” and the
will was therefore not revoked by the subsequent marriage.
A covenant not to revoke a will does not relate to revocation of a will as a matter of law.
IN RE MARSLAND;
The testator and his wife entered into a deed of separation and the husband made a covenant not
to revoke certain provisions in his will. His wife died and the husband remarried.
It was HELD that the covenant not to revoke his will was on its true construction confined to acts
of revocation performed as such by the testator but does not extend to where revocation follows as
a matter of law whether the testator wishes it or not.
Revocation of a will by another will or codicil. S.57
Such codicil can only have effect if executed in like manner as required for the execution of the
will;
IN RE WHITE
The testator wishing to alter his duly executed will, proposed alterations to the defendant who
wrote them on the manuscript of the original will. He then handed the will to the testator who
added at the end of the last page, „Alterations to will dated 14 December 1984‟ whereupon the
defendant and another witness added their signatures. The testator‟s original signature duly
witnessed by different witnesses at the time when the will and originally been made remained on

the page but he did not sign the will again after the alterations had been made. The testator died
the following year.
HELD; an alteration in a duly executed will made after the execution thereof is not effective unless
the alteration is executed in a manner required by law for the execution of the will. Since none of
the alterations to the original will had themselves been individually signed by the testator or by
two witnesses, they were invalid as alterations to the original will. The amended will had not been
signed by the testator and attested by two witnesses as required by law and therefore invalid though
the original will remained valid and could be admitted to probate.
A general clause in a will revoking all former wills, revokes all existing former wills.
SOTHERAN V DENING
A married woman having a general power of appointment by will over real estate executed a will
appointing the estate in favour of the plaintiff. After the death of her husband, she made another
will revoking all former wills and containing a general devise and bequest of all her real and
personal estate. She afterwards made a third will also revoking all former wills and bequeathing
her personal estate but not devising or appointing her real estate. She had no real estate except that
subject to her power of appointment of which in default the estate would go to the respondent and
her heirs. Whether the third will revoked the first will?
HELD; That the testamentary appointment under the first will was revoked by the second will and
the second will by the third and that the real estate went as in default of appointment. The execution
of another will is sufficient to revoke a former will. A revocation when it is clear in words, has the
effect of revoking all former wills just as if they had never existed.
Where the revocation clause is not clear, the will is not revoked.
SIMPSON V FOXON
A testator in 1898 executed a will disposing of all his property and appointing his daughter
executrix. In 1903 he duly executed a document on a printed form commencing “this is the last
and only will of me” whereby he bequeathed the proceeds of an insurance policy and appointed
an executor. In 1905, he duly executed a further document described a s codicil to the “last will”
whereby he made certain bequests and appointed other executors.
Whether the words “last and only will” revoked the will of 1898?
HELD; That words “last and only” in the intermediate document did not preclude the admission
to probate of all three documents. Per Sir George Barnes; the words the “last and only will” would
not revoke a former will, if not inconsistent with it. It is necessary to see what are the provisions
in the last will and if these provisions are inconsistent with those in the earlier document it may be
that the later revokes the earlier one. But it does not necessarily follow that it always will do so if
the two documents can stand properly together.
Revocation by writing

RE SPARKLANS ESTATE
A letter signed by a testatrix and duly attested was made to revoke a will. in this letter the testatrix
requested her will to be destroyed by the bank manager who had express possession of it. It was
held that the letter effected a valid revocation of the will since it had been duly executed.
Revocation by destruction.
The act of destruction must be carried out by the testator himself or by another person in his
presence and by his direction.
IN RE GOODS OF DADDS
The testatrix shortly before his death desired to revoke a codicil to his will. The codicil was brought
to her room and she asked for it to be burnt but there was no fire in the bedroom. The codicil was
then taken to another room and burnt in the absence of the testatrix. HELD; that the codicil was
not effectively revoked by destruction as it was destroyed in the absence of the testatrix.
Similarly in the Estate of De Kremer, where the testator instructed his solicitor by telephone to
destroy his will and the solicitor did so in the absence of the testator, court held that no revocation
was done.
GILL V GILL ;The testator‟s will was torn up by the testator‟s wife is a fit of anger in the
presence of the testator but without his direction. Court held that the will was not revoked.
IN THE GOODS OF BRASSINGTON
The testator died having duly executed his will appointing his wife as sole executrix and
bequeathed to her all his property. The testator was of very intemperate habits, and when under
the influence of alcohol he was extremely violent and excited and not understanding what he was
doing. One night the testator went to a tin box and took out his will and some other documents.
The will torn in pieces was seen very shortly after by his wife and after the testator recovered from
the effects of drinking, he was assisted by his son to paste the torn portions of the will onto a piece
of newspaper. He informed his doctor about this saying he didn’t know what he was doing when
he tore the will.
It was held that the will was not revoked by destruction.
Conditional Revocation
IN RE JONES
The testatrix made a will devising a small holding to the plaintiff and her sister. Shortly before her
death she told the bank manager that she had decided to leave the property to the children of her
nephew instead of her nieces. She then went to her solicitor‟s office but the solicitor was not
available to take her instructions that day and before he was able to do so the testatrix died. After
her death the will was found mutilated, a piece having been cut off which had contained on one
side most of the specific bequests including that of the small holding and on the other side the
testatrix‟s signature and the attestation. Whether the testatrix mutilated the will with an intention

of revoking it? Whether the doctrine of dependent relative revocation applied? HELD; a mere
intention to make a new will at the time of mutilation or destruction of an existing will was not
enough of itself to make the testator‟s revocatory intention conditional on the subsequent
execution of a new will. That the correct inference to be drawn from the facts was that in mutilation
of her will, the testatrix had intended to achieve its revocation forthwith not being content that it
should depend on the making of a new will.
NB. If the revocation was conditional upon execution of a new will, then without such execution,
there would be no revocation by mutilation.
EXECUTING THE TERMS OF THE WILL/ putting the testator’s wishes into effect.
S. 2 of the Act defines an executor” as a person appointed in the last will of a deceased person to
execute the terms of the will.
In order to honour the decisions of the testator and execute the will, the executor has to apply to
court for probate. . 182 provides that probate can be granted only to an executor appointed by the
will.
In the event that there is more than one executor, all of them must apply to court either
simultaneously or one by one. S. 185 provides that when several executors are appointed, probate
may be granted to them all simultaneously, or at different times.
S. 187; When probate has been granted to several executors, and one of them dies, the entire
representation of the testator accrues to the surviving executor or executors.
S.186 If a codicil is discovered after the grant of probate, a separate probate of that codicil may be
granted to the executor.
S. 270 An executor has power to dispose of the property of the deceased, either wholly or in part,
in such manner as he or she may think fit.
S. 271 If an executor or administrator purchases, either directly or indirectly, any part of the
property of the deceased, the sale is voidable at the instance of any other person interested in the
property sold.
There are two types of executors.

i. General executor appointed indefinitely and charged with the administration of the
whole estate.
ii. Specific executor, who is mandated to administer the estate for specific purposes or
properties.
S. 219; If an executor is appointed for any limited purpose specified in the will, the probate shall
be limited to that purpose.
S. 272;Powers of several executors, etc. exercisable by one.

Roles of executors
S. 188 ; Right as executor or legatee, when established. No right as executor or legatee shall be
established in any court of justice, unless a court of competent jurisdiction within Uganda has
granted probate of the will under which the right is claimed.
S. 189; 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.
S. 277; It is the duty of an executor to perform the funeral of the deceased in a manner suitable to
his or her condition, if the deceased has left property sufficient for the purpose.
He also has other roles; to provide for funeral expenses and medical fees, incur expenses for
obtaining probate, to collect all the deceased’s property for it is their responsibility, taking care of
the children under 18, distributing property among the beneficiaries
Exhibit in court within 6 months an account of the true estimates of the deceased’s property. S.
278
S. 279; to exercise due diligence in collecting property of the deceased and pay for the debts.
Executor has to accept executorship within a limited time. S. 196.
Priority of expenses;
S. 280; Funeral expenses to a reasonable amount, according to the degree and quality of the
deceased, and deathbed charges, including fees for medical attendance, and board and lodging for
one month previous to his or her death, are to be paid before all debts
S. 281 The expenses of obtaining probate or letters of administration, including the costs incurred
for or in respect of any judicial proceedings that may be necessary for administering the estate, are
to be paid next after the funeral expenses and deathbed charges
S. 282; Wages due for services rendered to the deceased within three months preceding his or her
death by any labourer, artisan or domestic servant are next to be paid, and then the other debts of
the deceased.
S, 283 All other debts to be paid equally and rateably
S. 286; Debts of every description shall be paid before any legacy.
S. 288; If the assets, after payment of debts, necessary expenses and specific legacies, are not
sufficient to pay all the general legacies in full, the latter shall abate or be diminished in equal
proportions; and the executor has no right to pay one legatee in preference to another, nor to retain
any money on account of a legacy to himself or herself or to any person for whom he or she is a
trustee.

S. 291. Abatement of specific legacies. If the assets are not sufficient to answer the debts and
specific legacies, an abatement shall be made from the latter rateably in proportion to their
respective amounts

FAMILY LAW II Children and Succession - 231027 - 122440

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FAMILY LAW II; CHILDREN AND THE LAW OF SUCCESSION

Duties and rights of a child.

MORE IS NOT ENOUGH; MAGIS; SON OF LOYOLA; @FERDINANDIUS

The Children Act (as amended in 2016) enumerates children’s rights

MORE IS NOT ENOUGH; MAGIS; SON OF LOYOLA; @FERDINANDIUS

Best interests/ welfare of the child.

MORE IS NOT ENOUGH; MAGIS; SON OF LOYOLA; @FERDINANDIUS

Section 3 of the Children (Amendment) Act, 2016:

MORE IS NOT ENOUGH; MAGIS; SON OF LOYOLA; @FERDINANDIUS

MORE IS NOT ENOUGH; MAGIS; SON OF LOYOLA; @FERDINANDIUS

IN THE MATTER OF NAMUGERWA JOYCE

MORE IS NOT ENOUGH; MAGIS; SON OF LOYOLA; @FERDINANDIUS

The Children Act as amended provides for four types of guardianship.

IN THE MATTER OF ALICIA MIREMBE ANGILLIS A MINOR

MORE IS NOT ENOUGH; MAGIS; SON OF LOYOLA; @FERDINANDIUS

IN THE MATTER OF AN APPLICATION OF JANE NAMUKASA AN INFANT It is now

MORE IS NOT ENOUGH; MAGIS; SON OF LOYOLA; @FERDINANDIUS

IN THE MATTER OF AN APPLICATION BY ROXANE TURNER AND JOYCE

MORE IS NOT ENOUGH; MAGIS; SON OF LOYOLA; @FERDINANDIUS

Guardianship may be terminated (not revoked); S. 43H (2 and 3)

Conditions for guardianship.

S. 43F;1) the Court shall satisfy itself that;

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

2. the court shall satisfy itself that the applicant;

MORE IS NOT ENOUGH; MAGIS; SON OF LOYOLA; @FERDINANDIUS

IN THE MATTER OF NAMUGERWA JOYCE

MORE IS NOT ENOUGH; MAGIS; SON OF LOYOLA; @FERDINANDIUS

IN THE MATTER OF ROSETTE KANYUNYUZI

IN THE MATTER OF MATHIAS MUTEBI AN INFANT

MORE IS NOT ENOUGH; MAGIS; SON OF LOYOLA; @FERDINANDIUS

RWABUHEMBA TIM MUSINGUZI v HARRIET KAMAKUME The respondent is the

MORE IS NOT ENOUGH; MAGIS; SON OF LOYOLA; @FERDINANDIUS

NAKALULE CHRISTINE v KAKOOZA HERBERT

MORE IS NOT ENOUGH; MAGIS; SON OF LOYOLA; @FERDINANDIUS

MORE IS NOT ENOUGH; MAGIS; SON OF LOYOLA; @FERDINANDIUS

KIRUNGI DOREEN v MUGABE RONALD

MORE IS NOT ENOUGH; MAGIS; SON OF LOYOLA; @FERDINANDIUS

MORE IS NOT ENOUGH; MAGIS; SON OF LOYOLA; @FERDINANDIUS

This was held in JULIAN GALTON FENZI v NABBOSA NATASHA MARIE

MORE IS NOT ENOUGH; MAGIS; SON OF LOYOLA; @FERDINANDIUS

MORE IS NOT ENOUGH; MAGIS; SON OF LOYOLA; @FERDINANDIUS

IN THE MATTER OF PETER SSEBULIBA ALIAS NAMANSA JAMES

MORE IS NOT ENOUGH; MAGIS; SON OF LOYOLA; @FERDINANDIUS

MORE IS NOT ENOUGH; MAGIS; SON OF LOYOLA; @FERDINANDIUS

MORE IS NOT ENOUGH; MAGIS; SON OF LOYOLA; @FERDINANDIUS

(c) does not have a criminal record;

MORE IS NOT ENOUGH; MAGIS; SON OF LOYOLA; @FERDINANDIUS

MORE IS NOT ENOUGH; MAGIS; SON OF LOYOLA; @FERDINANDIUS

S. 52. Devolution of property.

S.55. Disclosure of adoption.

MORE IS NOT ENOUGH; MAGIS; SON OF LOYOLA; @FERDINANDIUS

c. Where an adoption order is rescinded-

a. Testate succession = where succession is governed by a valid will.

The main law is the succession act

MORE IS NOT ENOUGH; MAGIS; SON OF LOYOLA; @FERDINANDIUS

The will is ambulatory that is only takes effect on death

A will must be a written declaration

MORE IS NOT ENOUGH; MAGIS; SON OF LOYOLA; @FERDINANDIUS

CAPACITY TO MAKE A WILL.

MENTAL OR TESTAMENTARY CAPACITY

The above test is composed of four distinct elements.

MORE IS NOT ENOUGH; MAGIS; SON OF LOYOLA; @FERDINANDIUS

Why sound mind?