UGANDA MARTYRS UNIVERSITY.

FACULTY OF LAW
2ND YEAR, SEMESTER TWO COURSE UNIT

THE LAW RELATING TO CHILDREN

1. DEFINITION OF A CHILD

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

Under Article 22(2), the Constitution in not so express terms stipulates

that an unborn foetus is a child. It gives a prohibition on abortion by
giving such an unborn child a right to life.

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

considered whether an unborn child has any rights including that to life. In

this case, a mother and child claimed that a doctor not issuing abortion

advice when a serious disability is diagnosed during pregnancy deserved

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

her injuries are highly debilitating.” The mother and child lost the case. The

Court’s reasoning was that a foetus is not yet a human being to have a say

on whether they should live or not.

1.1 The Rights of Children

The rights of children can be found in Article 34 of the 1995 Constitution.

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

1.2 The Child’s Welfare, the Welfare Principle:

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

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

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

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

physical comfort only. The word welfare must be taken in its widest

sense. The moral and religious welfare must be considered as well as

its physical well-being. Nor can ties of affection be disregarded.”

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

Law 257 as the best case that defined what welfare is. Hardy Boys J in this

case said,

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

the sense of an adequacy of resources to provide a pleasant home and a

comfortable standard of living and in sense of an adequacy of care to ensure

that good health and due personal pride are maintained. However, while

material considerations have their place, they are secondary matters. More

important are the stability and security, the loving and understanding care

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

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

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

keeping within our statutory provisions. Read Nakaggwa v Kiggundu (1978)

HCB 310; George Nyakairu v Nyakairu (1979) HCB 261.

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

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

circumstance.

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

to say of the trial judge,

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

solutions. The problem for the judge was to appreciate the factors in each

direction and to decide which of the two bad solutions was the least

dangerous, having regard to the long-term interests of the children.”

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

2016 Amendment introduced a checklist of items that will guide a court of

any person faced with making a legal decision for a child.

What the Act means by “paramount consideration” was explained by Lord

McDermott in J v C (1970) AC 668 to mean a consideration which “rules upon
or determines the course to be followed.”

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

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

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

2. Custody and Maintenance of Children

2.1 Custody

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

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

equivalent of guardianship in the fullest sense whether the guardianship

is by nature, by nurture, by testamentary disposition, or by order of a

court…. l use the words fullest sense because the guardianship may be

limited to give control over the person or only cover the administration of

the assets of an infant. Adopting the convenient phraseology of counsel,

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

bundle of powers which continues until a male infant attains (the age of

majority) or a female infant marries. These include the power of control

education, the choice of religion and the administration of the infant’s

property. They include entitlement to veto the issuance of a passport and

to withhold consent to marriage. They include, also, both the physical

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

discretion….”

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

Karminski L.J in the same case stated that physical possession is only one
aspect of custody.
Article 31(4) enjoins a duty upon parents to care for and bring up their

children. This means that the parents of a child have the first right to

custody of their own children.

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

them are dead that the issue of who should have custody of children.

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

application of a sole applicant or joint applicants, grant custody of a child

on such conditions as may be determined by the court. The Court will take

into consideration the aforementioned guiding welfare principle.

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

a) Interim custody by Court

b) Custody of agreement

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

mother, father or guardian of a child on application to a court of

competent jurisdiction pending the determination of the main suit for

custody of such a child by Court.

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

the child is suffering or likely to suffer harm if the order is not given of if it

is in the best interests of the child.

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

parents of the child enter into a written agreement to determine which of

them shall have custody of the child.

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

determined by the Court that it was made not in the best interests of the

child, was made under duress or made fraudently.

Please read:

1. RM (1967) 3 ALLER 1071.

2. Nakaggwa v Kiggundu (1978) HCB 310

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

4. Samwiri v Rose Achen (1987) HCB 297

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

6. Wambwa v Okumu (1970) EA 578

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

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

illustrated with regard to the following;

The natural wishes of the parents:

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

thumb is custody is distributed taking into account the best interests of the
child(ren). Sometimes there are conflicts between the natural parents whose

conduct is faultless and an outsider.

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

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

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

The conduct of the parties

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

determining what the best interests of the child would be.

However, the problem comes where the dispute is between the parents to

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

interests of the child and what effect it may have on the custody order.

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

in coming to its decision.

The age and sex of the child(ren)

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

very young children should be in the care of the mother and older boys in

the care of the father. These are not principles or rules of law. They are

simply judicial statements of general experience whose application depends

on the facts of each case.

Read Wambwa v Okumu (1970) EA 578

Material Advantage or benefits

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

should not be ignored either.

The ability of an applicant to provide an adequate home for the child is a

determining factor.

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

capability as compared to the mother. The Court while noting that this was

irrelevant in a custody application, it could not be ignored for if it could be

proved that the father could use his superior financial standing to cater for

the welfare of the child better than the mother who was financially inferior,

then the father would stand a better chance in being given custody of the

child.

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

child and if the parent could use the material advantage to enhance the

child’s welfare, then it could be taken into consideration.

Medical factors

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

widely recognised and forms part of the general knowledge and experience

of judges. The evidence of a psychiatrist or educational psychiatrist can be

tendered where a dispute about custody arises. lf the child is suffering from

some physical or psychological malady or condition, then such evidence will

be necessary and will weigh heavily in court.

2.2 Maintenance

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

and be cared for by their parents or those entitled by law to bring them up.
S.5(1) of the Children Act imposes a duty upon a parent, guardian or any

person having custody of a child to maintain the child by making sure they

are educated, immunized etc. When two parents separate, it is often

determined that a child will primarily reside with one of the separated

parents, the other exercising access or visitation rights from time to time. In

those situations, the parent with the primary residence responsibilities will

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

groceries, utilities, transportation, school, lessons etc.

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

that each parent has a legal obligation to support their child.

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

equally or fairly contribute to their child’s expenses and needs.

This is done by requiring that parent to make monthly or other periodic

(rarely a lump sum or annual payment) to the other parent as a contribution

towards the expense of raising a child.

2.2.1 Who may apply for maintenance?

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

the biological parents and child may apply for maintenance.

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

proceedings, separation or nullity proceedings, during proceeding for

declaration of parentage, after the proceedings for declaration of parentage

and during pregnancy or before the child attains eighteen years of age.
During such proceedings it is incumbent on the party seeking to have a

maintenance order as part of the orders given by the court to formally state

so in their pleading as the Court cannot vary the orders in such proceedings

at a later time to include maintenance orders. Read the Case of Helen

Monica Barret v James Barret (1961) 1 E.A 503.

2.2.2 Enforcement and variation of maintenance orders

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

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

may after inquiring into the circumstances, make an order with either

increasing or decreasing the amount of money previously ordered to be paid

under the order.

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

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

Children Act.

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

effect on custody of the child being granted to that parent or other person in

his or her place by the court.

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

payable under maintenance shall be due and payable to the applicant unless

a custodian has been appointed in which case, the money shall be due and

payable to the custodian. In S.79(2), the Court may also order that the
money shall be paid into Court and then paid to the applicant or custodian in

a manner and subject to any condition as the Court may direct.

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

custodian where the court is satisfied that the initial applicant is not fit and

proper to have custody of the child or is dead or has become of unsound

mind or is in prison. The custodian will assume custody of the child upon

appointment.

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

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

Act.

2.2.3 Cessation of the Order

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

force or validity upon the child attaining eighteen years.

3. DECLARATION OF PARENTAGE AND PROOF OF PATERNITY

3.1 Who is a Parent?

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

assumed that the parents of a child are those who genetically produce the

child. The woman whose egg and the man whose sperm together ultimately

produce the child are its parents. In the past, although there may have been

practical problems in proving who was the biological father, that definition of

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

problematic.
Developments have caused a re-examination of the concept of parenthood.

The first is the advent of new reproductive technologies. Now the woman

who carries the child need not be genetically related to the child(surrogacy);

a man may donate sperm to a hospital without ever intending to play a

parental role. The law recognises the child’s biological father as his legal

father, if the parties are married, any child born of the wife is presumed to

be the child of the couple.

Legitimacy at Common Law.

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

of his conception or at the time of this birth.

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

conception, even though the marriage was terminated before his birth.

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

parents’ marriage was terminated by divorce between the time of his

conception and his birth, this principle was illustrated in Knowles vs Knowles

(1962) 1 ALL ER 659.

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

only be determined by reference to the following questions;

a) Who was his mother? Normally this question presents no difficulties

because the fact of birth and identity can be established by the evidence or
other persons present at birth. However, there are cases where the

maternity is in contestation especially with children who have been switched

at birth.

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

paternity can normally be inferred only from the fact that the alleged father

had sexual intercourse with the mother about the time when the child was

conceived. Consequently, if two men had intercourse with her during the

relevant period it may be impossible to prove affirmatively which is the

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

the common law presumption of legitimacy. This presumption is sometimes

known as pater est quem nuptiae demonstrant or pater est in short which

means he is the father whom the marriage indicates to be so or the father is

he whom the marriage points out. This presumption is that if a child is born

to a married woman, her husband is to be deemed to be its father until the

contrary is proved. This means that if it is alleged that it is not legitimate, the

burden of rebutting the presumption is immediately cast upon the party

alleging the illegitimacy. This presumption will still apply even though the

child is born so soon after the marriage that is must have been conceived

beforehand for in the words of Lord Cairns, L.C in Gardner v Gardner

(1877) 2 AC 723 stated that “where a man marries a woman who is in a

state of pregnancy, the presumption of paternity from the mere fact is very

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

eye, or actually confessed or announced…to the intended husband, a

presumption is reared up which according to universal feeling and giving due

weight to what may be called the ordinary instincts of humanity, it will be

very difficult indeed to overcome.”

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

married her, the presumption may be rebutted by other evidence. Thus, in

Poulett Peerage (1903) AC 395, the wife was three months pregnant at the

time of the marriage. Two months later the husband separated from her on

the ground that she was pregnant by another man. He had deposed that he

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

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

had told a friend that another man was the father of the child. It was held

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

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

within the normal period of gestation after the husband’s death as seen in

Re Heath (1945) Ch.417.

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

afterwards. In Preston-Jones v Preston-Jones (1951) CA 391, the House

of Lords (Lord Simonds & Lord Morton) agreed that the Court take judicial

notice of the fact that there is a normal period of gestation (although the

period is variously given as 270-280 days or as nine months). However, Lord

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

the normal period is not always followed and that the actual period in a
given case may be considerably longer or shorter. It would seem however

that the longer the period deviates from the normal, the more easily will the

presumption be rebutted, until there comes a time when it is not raised at

all, although it is extremely difficult to say where the line is to be drawn.

This presumption does not apply to unmarried cohabitants.

Rebutting the Presumption

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

had sexual intercourse and b) that the child is the issue of that intercourse. It

is therefore follows that it may be rebutted either by showing that the

spouses could not or did not have intercourse or by establishing by medical

or other evidence that, in any event, the husband could not be the father of

the child in question.

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

Reid said; “Blood tests have been used extensively for many years in many

countries and its now generally recognised that if a test is properly carried

out by a competent Serologist, its results are fully reliable.”

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

be rebutted only be evidence indicating beyond reasonable doubt that the

child was illegitimate. This was due to the serious legal incapacities and

social advantages attached to bastardy.

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

presumption was rebutted by evidence adduced that the husband had not
sexual intercourse with her before the marriage and that the fact that he had

not acknowledged the child as his. Evidence was also given that the wife had

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

the presumption of the child’s legitimacy was rebutted.

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

the husband was either permanently impotent or temporarily impotent

(whether from illness or any other cause). But it must be remembered that

even though the husband could not have had intercourse, the wife might

nevertheless have become pregnant as a result of fecundation ab extra as in

the Clarke v Clarke (1943) 2 ALLER 540 or of artificial insemination with her

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

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

reaches the age of eighteen years.

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

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

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

oath to a Family and Children Court having jurisdiction in the place where the

applicant resides or summons to be served on the man alleged to be father

of the child of the woman alleged to be mother of the child. S.67(d) of the

Children Act.

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

anytime before the child attains eighteen years of age; or within three years

after the death of the alleged father or mother; or with leave of the Family
and Children Court where the application is made after the lapse of three

years.

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

mere fact that the child resembles or doesn’t resemble the presumed parent

is not conclusive evidence of parenthood or otherwise.

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

the Court that evidence of similarity in physical features between a child and

the alleged parent is admissible to prove paternity even if the evidence is

not conclusive.

4.2 Evidence of Parentage;

a) Births Register:

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

mother of a child is entered in the register of births in relation to a child, a

certified copy of that entry is prima facie evidence that the person named as

the father or mother of the child named therein.

b) Signed instrument:

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

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

mother of the child if the instrument is executed as a deed or if the

instrument is signed jointly or severally by each of those persons in the

presence of a witness is prima facie evidence that the person named as the

father is the father of the child or the mother.

c)Court inferences

The Court may also infer paternity simply from the facts of the case. For

example, if it were shown that the mother and the man spent the night

together at the time the conception is said to have taken place, this would

be evidence of the man’s paternity.

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

respondent had written a letter to applicant expressing in endearing terms

saying he remembered “that night.” The Court held that the letter,

undoubtedly “tended” to prove that he was the father of the child. But also

went further to hold that the person depending on such an allegation which

should be corroborated and the corroborative evidence need do no more

than show the probability that the mother’s evidence implicating the man is

true; it must point to the man as the probable father, but it is not correct to

say that it must be incapable of any other interpretation.

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

d) Order of Court

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

against a person under any written law is prima facie evidence of parentage

in subsequent proceedings, whether or not between the same parties.

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

be conclusive proof of parentage according to subsection 4.

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

proceedings declaring or having the effect of declaring a person to be the

father or mother of a child is prima facie evidence that the person mentioned

in that order is the father or mother of the child.

e) References in wills

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

of any person to a child as his or her child or daughter is prima facie

evidence that, that person is the father or mother of the child.

f) Blood samples may also be used as discussed above; this is provided for

under S.69(4) of the Act.

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

4. ADOPTION OF CHILDREN

Adoption according to Blacks Law Dictionary, 9 th Edition is the creation of a

parent-child relationship by judicial order between two parties who are

unrelated.

It refers to the legal and formal acceptance of another’s natural or biological

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

attached thereto as if the child were your natural child in terms of child

support.

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

inalienable meant that it could recognise no change of status comparable to

the adoption or adroptio Roman Law. Consequently, spouses who were

probably childless and anxious to bring up another’s child as their own

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

normal home life and remained in the orphanage or some other institution.

The result of this was a demand for reform which led eventually to the

passing of the Adoption of Children Act in 1926, the provisions of this Act

were revolutionary and subject to certain limitations, it permitted anyone

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

order from a court of competent jurisdiction, the effect of which if it was

granted was to break entirely the legal relationship between the child and its

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

and its adopters. The result in brief is that the adopters for almost all legal

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

In Ayat Joy v Jenevieve Chenekan Obonyo and another HC Adoption Cause

No. 52 0f 2002, it was stated by the Court that adoption creates a lifelong

relationship of parenthood between a child and adopter or adoptive parents.

4.1 Preliminary steps to adoption.

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

Court within the jurisdiction of the applicant’s residence where both the

applicant and the child are Ugandans according to S.44(1)(a) of the Children

Act. The application may be made in the High Court Family Division

according to S.44(2)(b) of the Act, where the child or applicants are

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

S.41(2) of the Act.

 4.1.1 Prerequisites for Adoption

a) Age

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

age of 25years and should be at least 21years older than the child. S.45(1)

(a) of the Children Act.

b) Consent(spousal)

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

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

c)Sex of the applicant

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

respect of a female child or in favour of a sole female applicant in respect of

a male child, unless the Court is satisfied that there are special

circumstances that justify as an exceptional measure, the making of the

order, S.45(3) Children Act. Also read Re Edith Nassazi Adoption Cause No.4

of 1997 on exceptional circumstances.

d)Foster Care

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

months under the supervision of a probation and social welfare officer.

In Re Derrick, Mugoya, Okola Wily, Edward Kabuyo (children) Adoption Cause

No. 69 of 2007, the learned Judge noted that S.45(4) is only discretionary
and not mandatory and the period can be waived if it is in the best interests

of the child.

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

done away with where special circumstances exist that necessitate the best

interests being taken into consideration.

e) Inter-Country Adoption

The prerequisites are slightly more stringent than in circumstances where

the parties are Ugandan nationals under S.46.

Before a non-citizen, can make an application the following pre-requisites

must be in place;

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

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

Yvonne Kamahi Adoption Cause No.1 of 1993, the Court stated that to

constitute residence there must be a presence in Uganda for a

considerable period of time.

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

referring to the English case of Fox v Shirk (1970) 2 ALL ER 7, the Court

observed that one can have two residences and reside in both. That a

temporary presence at an address does not make one resident there and

neither does temporary absence deprive a person of his or her residence.

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

specify which kind of residence was required for the purpose of exception
 and what was required was substantial presence in connection with

Uganda.

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

probation and social welfare officer.

iii. Must not have a criminal record.

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

a child from his or her country’s probation and social welfare officer or

relevant competent authority.

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

recognise the adoption order.

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

here.

f) Consent of the Child’s parents

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

necessary if the parents are known, but it may be dispensed with by the

Court at its discretion in exceptional circumstances if the parents are

incapable of giving it or are dead; but the consent may be revoked at any

time before the pronouncement of the adoption order.

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

that the purpose of the consent under this section is to emphasise the right

of the parent over the child. And this right should only be discarded in the

interest and welfare of the child.

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

UGHC 124, the Court stated that, the consent to adoption explicit on the

adoption order is a very important document because it is in it that the

parents or guardians of the child to be adopted vest their parental rights in

the adoptive parents.

Read

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

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

g) Consent of the Child

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

understand

the adoption proceedings, then his or her views shall be taken into

consideration. S.47(6) of the Act on the other hand makes it mandatory to

obtain the consent of the child where the Child is at least fourteen years of

age unless it is not possible for the child to express his or her wishes.

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

Child 1989 on the requirement of member states to ensure that a child who

is capable of forming his or her own views on such proceedings is given this

chance.

3.1.2 Rescission of an adoption order

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

Court of competent jurisdiction on application by;

a) The adopted child

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

respect of the Child immediately before the adoption

c) The adoptive parent of the child

d) Any person who consented to the adoption

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

f) Any other person with a justifiable reason.

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

best interests of the child; or the order was obtained through fraud or

misrepresentation.

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

as one that has never been adopted before and the responsibilities that

had been terminated by the order previously will be restored.

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

respect of the child concerned or order that the child be kept in

temporary safe custody until an appropriate order is made by the Court or

the Court may make an ancillary order where necessary for the

restoration of the child.

3.1.3 Pleadings in adoption proceedings

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

Children (adoption of Child) Rules SI_59_1).

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

annexed certificates and other documents proper for proving all

allegations in the petition. (Rule 7).

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

or Magistrate sitting in chambers and the hearing must be attended by

the probation and social welfare officer under whose supervision the child

was fostered.

5. GUARDIANSHIP

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

parental responsibility of a child.

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

are regarded at common law as the natural guardians of their children.

Guardians are to be distinguished from natural parents with regard to the

fact that these stand in loco parentis to a child. In practice the concepts of

parent and guardian are quite distinct for the rights and duties of the

former arise automatically and naturally on the birth of the child whilst

the latter voluntarily places himself in loco parentis to his ward (the child

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

immediately from this act.

The rights and duties of the natural parents arise automatically and

naturally on the birth of the child, while that of guardian voluntarily places

himself in loco parentis to his ward and his rights and duties flow

immediately from this act.

A Foster Parent is one who has de facto control and custody of a child

without being its legal guardian.

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

customary guardianship and guardian appointed by agreement.

5.1 Legal Guardianship:

This is a fairly new type brought by the latest amendment to the Children

Act. It applies to children in Uganda.

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

citizens. A person who is not a citizen of Uganda is not eligible to apply for

legal guardianship.

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

person above the age of eighteen years to the High Court.

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

accompanied by a report of the Probation and Social Welfare Officer.

5.2 Customary Guardianship:

Customary guardianship means parental responsibility of a Ugandan child

by a Ugandan citizen resident in Ugandan in accordance with the

customs, culture or tradition of the respective people.

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

Family members may appoint a guardian of a child in accordance with

their customs, culture or tradition where both parents of the child are

deceased or cannot be found; the surviving parent is incapacitated; or

where the child has no guardian or any other person having parental

responsibility for him or her.

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

the property of that child.

5.3 Appointment of a Guardian by Agreement- S.43D;

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

be a guardian of their child.

For such an agreement or deed to have effect, it must be dated and

signed by the parent in the presence of two witnesses, one of whom must

be a Probation and Social Welfare officer, and their must be a local

Councillor at LC 1 Level.

S.43E

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

guardians of the child. These are known as joint guardians. They must be

spouses for them to qualify for such an order otherwise, a guardianship

order shall not be made to authorise more than one person as guardian of

a child.

5.4 Conditions for Guardianship S.43F;

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

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

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

responsibility of the child;

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

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

custody;

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

to the age and understanding of the child, where in view of the court,

the child is able to understand the guardianship proceedings;

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

guardianship has been obtained, unless it is impossible for the child to

express his or her consent and

g) That the applicant has continuously lived in Uganda for at least 3

months; does not have a criminal record; and has a recommendation

concerning his or her ability as a guardian from a Probation and Social

Welfare or other competent authority in Uganda or in the applicant’s

country of residence; and

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

payment or other reward in consideration of the guardianship.

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

A guardianship order vests parental responsibility of the child in the

guardian.
Guardianship does not completely extinguish the rights and obligations of

the natural parents.

A guardianship order shall remain in force until the child in relation to

whom it is issued attains the age of eighteen years.

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

from infirmity of the body or mind.

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

Registration is with the Uganda Registration Services Bureau and Ministry

responsible for Children Affairs; a copy of the order should also be

submitted to the National Children Authority.

Termination of Guardianship

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

majority.

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

guardian’s personal representatives will have no rights or duties with

respect to the ward/child, but his representatives will have no rights or

duties with respect to the person of the ward, the estate will be liable

for any breach of trust committed by the guardian in his dealings with

the ward/child’s property. In the case of joint testamentary guardians,

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

(1725) English Case.

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

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

guardian once having accepted the office cannot resign it at will and

although in some earlier cases the court did not look favourably upon a

guardian’s request to be discharged, the modern view is that, if he is

unwilling to act, it will be in the ward’s interest that he should be

replaced.

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

of the ward/child/minor so demands.

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

guardian.

 The abandonment of this rights for such a length of time that it

would not be in the ward’s interest to permit him to reassert them

as stated in Andrews v Salt (1873), 8 Ch. App 622.

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

for some reason better for the ward to have a new guardian and

which do not necessarily cast any reflection on the existing

guardian’s integrity at all.

5.6 Revocation of a Guardianship Order;

This is provided for in S.43K

 THE LAW OF SUCCESSION

The Law applicable to succession in Uganda is the 1995 Constitution of the

Republic of Uganda, the Succession Act Cap 162, The Administrator

General’s Act, Cap 157, The Administration of Estates (small estates) (special

provisions) Act Cap 156, Administration of Estates of Persons of Unsound

Mind Act Cap 155; The Estates of Missing Persons (Management) Act Cap

159.

There are basically three types of succession namely;

 Testate succession,

 Intestate succession

 Partly testate and partly intestate succession

1. TESTATE SUCESSION

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

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

you own and how you would like it to be divided after your death. It is also a

declaration in a prescribed form of the intention of the person making it, of

the matters which he or she wishes to take effect on or after his death.

The classical case that defines a will is the case of Lemage v Goodban (1865)

1 P & D 57 in which Sir JP Wilde defined it as “the aggregate of a man’s

testamentary intentions, so far as they are manifested in writing, duly

executed according to statute.”

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

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

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

(Read Administrator General v Bukirwa and another C.S No.2018 of 1992).

In general terms, every instrument purporting to be testamentary, or to

affect a previous testamentary instrument, made by a person over the age of

eighteen and of sound mind and executed in accordance with the formal

statutory requirements is regarded as a will if it purports to dispose of

property, whether or not the deceased infact left any property, or contains

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

A document without dispositive effect will normally not be effected by a

Court of law. (Read In the Estate of Thomas, Public Trustee v Davies (Caple

intervening) (1939) 2 All ER 567).

1.1 What is meant by a Will being ambulatory?

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

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

means that a will cannot confer benefits whilst the testator is alive.

The ambulatory nature of wills has several significant implications. ln

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

declarations of intention. Therefore, he or she is at liberty to dispose of

this property intervivos (an intervivos gift occurs when the donor intends

the transfer of interest to be immediate and irrevocable) notwithstanding

that it has already been devised by a will.

ii. For his part, a beneficiary to whom property has been left in the will

cannot ordinarily restrain the testator from disposing of such property. His

expected interest does not take effect until the testator’s death and is

liable to lapse if he predeceases the testator.

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

under his will even though he had not yet acquired it at the time the will

was executed. For instance, if T makes a will devising “all my real

property to B’ and T later buys some freehold land, which he retains till

his death, this land will ordinarily form part of B’s inheritance under T’s

will.

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

British Columbia with regard to the aforementioned issue.

In this case, the defendant(Stella) moved in with the deceased (Alex) in

March 1998 and the two planned to marry when the defendant’s divorce

was granted. The deceased wished to give the defendant some financial

security, regardless of the outcome of the litigation with her husband, so

they consulted a solicitor. Certain documents were prepared and

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

residence to the defendant, to be used in the event of the deceased’s

death. The terms governing the use of those documents were contained

in an “escrow agreement” which gave the defendant an immediate right

to live in the residence. lt also provided that the deceased could take the

transfer back in specified circumstances, in which case he was required to

pay the defendant $60,000. The defendant’s divorce was delayed and she

was not to marry before the deceased died in 1988. She obtained the

transfer and had it registered, thereby obtaining title to the residence.

The deceased’s executor brought an action to set aside the conveyance

on the ground that the agreements were testamentary and invalid

because of failure to comply with the Wills Act. The action was dismissed

and the executor appealed.

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

executed instrument the person making it intends it that it not take effect

until after his death and it is dependent on death for its “vigour and

effect,” it is testamentary. However, if the document creates a gift in

praesenti, albeit to be performed after the donor’s death, it is not

dependent on his death for its “vigour and effect.” The documents here

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

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

interest on the defendant in the property and they were not

testamentary.

Read Malinga v Obukunyang Arising from Administration Cause 52/2013

1.2 Codicil

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

They can do so by an instrument called a Codicil.

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

explaining, altering or adding to a will and which is considered as being

part of the Will.

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

page 450 of his Commentaries on the laws of England, William Blackstone

described a codicil as:

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

annexed to and to be taken as part of a testament.”

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

the formalities relating to it, but in general it is supplemental to and

considered as annexed to a will previously made, being executed for the

purpose of adding to, varying or revoking the provisions of that will. A

codicil is nevertheless capable of independent existence, so that the

revocation of a will, or a part of a will, does not necessarily affect the

revocation of a codicil to it.

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

codicil if;
  The Person executing it intended it to take effect only at its death.

Testamentary intentions refer to their wishes and desires concerning

the handling of his affairs in the period after his death.

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

Succession Act, failure to do so renders the codicil void. (Read

Babumba and 13 Ors v Ssali Babumba (Civil Suit No.78 of 2012) and in

the Estate of James Ngengi Muigai(deceased), Nairobi High Court

Succession Cause No.523/1996). According to this latter case, a Will

should be in writing, signed by the testator attested to by two or more

competent witnesses who must see the testator write, sign or affix his

mark on the document. This is what is referred to as due execution of a

Will.

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

Will be re-executed. The maker of the Codicil identifies the Will that is to be

changed by the date of its execution. The Codicil should state that the Will is

affirmed except for the changes contained therein. The same formalities that

are necessary for the valid execution of a will must be observed when a

Codicil is executed. Failure to do so renders the codicil void. In Serwan

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

that a codicil not attested to by two witnesses is invalid and that a codicil is

part of a Will and its attestation is in the same way.

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

has to ascertain the intention of the person who executed it both from the
 language of the document and extrinsic evidence. If the document appears

to be testamentary on the face of it, a rebuttable presumption arises that the

deceased intended it to take effect only at his death.

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

With the exception of privileged wills for which the Succession Act under

S.53 uses the word “may,” wills must generally be in writing in order to be

enforceable.

Two points are worth noting in this requirement of writing:

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

scenario that the sum total of a testator’s intentions are always drawn out

of a single document but it is not uncommon for a testator to employ two

or more documents. This could be in form of a codicil in which the testator

may find it necessary to alter the contents of the original will. However, it

is worth noting that the law strictly considers that a testator should only

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

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

documents, ‘it is the aggregate or the net result that constitutes his will.’

In some instances, where two or more wills are found, and it does not

appear clearly which was the former or latter, both are void. But if two

codicils are found, and it cannot be known which was first or last, and one

and the same thing is given to one person in one codicil, and to another

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

named ought to divide the thing between them. But if dates appear to
 contradict on the wills and codicils, the latter will is always to prevail and

revoke the former; as also the latter codicil, as far only as it is

contradictory to the former; but as far as the codicils are not

contradictory, they are allowed to be both in force.

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

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

manner in which the testator’s property is to devolve on his death. The

testator(ix) may in addition if he or she so wishes use their will as a

medium for;

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

conduct of persons who would ordinarily be expected to benefit from his

will

b) Appointing executors and providing for their functions;

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

d)Arranging for the payment of debts and the discharge of other

obligations due from the testator.

e) nominating beneficiaries under any testamentary power of

appointment exercisable by the testator and

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

the disposal of his body.

Whatever directions the maker chooses to issue his or her will, the law does

not impose a particular form to follow when making a will. As Buckley LJ put

it in Re Berger (1989) 1 AllER 591, ‘English law does not require a document
which is intended to have testamentary effect to assume any particular form

or to be couched in language technically appropriate to its testamentary

character.’

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

familiar everyday terms. Thus, for example, a will which simply read ‘All for

mother’ was recognised as valid in Thorn v Dickens (1906) WN 54.

1.4 Formalities of a valid will

Section 50 of the Succession Act provides for the statutory formalities

governing the due execution of a will.

 The requirement of writing

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

every will to be in writing.

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

the writing must be embodied in a single document as already discussed

above. Documents may be incorporated by reference as provided for under

S.51 of the Act.

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

done personally by the testator(ix).

The will may be written wholly or in part by another person and signed by

the testator.

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

testator.
A will may be written on any material. Read examples of In the Estate of

Murray (1963) CLY 3621, where a will was written on a piece of cardboard

and Hodson v Barnes (1926) 43 TLR 71 where a will was written on an egg

shell.

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

format recommended is provided for in the Fourth Schedule of the

Succession Act.

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

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

 The testator(ix)’s signature

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

signed by its maker and where they cannot do so, it shall be signed by some

other person in his or her presence and by his or her instruction.

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

as was the case in Smith v Harris (1845) 1 Rob 262, or in their own name as

happened in In the Goods of Clark (1839), 2 Curt 329.

The signature or mark of the testator or the signature of the person signing

for him or her shall be so placed that it shall appear that it was intended

thereby to give effect to the writing as a will.

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

document so long as it is apparent from the position that it is intended to

give effect to the will.

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

testator may sign the will himself, but in so doing rely on another person to

guide his hand along the paper, especially where he is blind or seriously ill.

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

his signature to the will, the courts have demonstrated considerable

flexibility in determining what sufficies as the testator’s signature.

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

page.

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

sufficiently connected or attached at the time of execution. Re Little (1960),

for instance, the testator’s will was contained on five pages and he signed

the fifth page which was covering the other four. The Court held that at the

time of execution all the pages were sufficiently connected to validate the

entire will.

In the In the Goods of Mann (1942) 146, the sheet of paper containing the

testatrix’s will was not signed by her but was put in an envelope on which

she wrote ‘the last will and testament of JCM.’ It was held that there, was a

sufficiently close relationship between the envelope and the will to justify

treating the envelope as a page of the will and holding that by putting her

name on the envelope the testatrix had effectively signed the will.

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

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

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

either:

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

at the same time; or

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

The presence of these witnesses provides a useful safeguard against

forgery and the exertion of undue influence.

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

vicinity as the testator when he signs the will. The witnesses must

actually have the opportunity of observing the testator in the act of

signing. As Barnes LJ explained in Brown v Skirrow (1902) P 3: “You

cannot be a witness to an act that you are unconscious of; otherwise, the

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

people in the intervening space. In my view, at the end of the transaction

the witness should be able to say in truth “l know that (T) has signed this

document.” In this case, a testatrix took her will to a grocer’s to be

executed . She asked two shop assistants to act as witnesses. As she was

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

The will was held invalid.

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

Court held that in all administration causes where a will has been

executed in suspicious circumstances, the best evidence which the court

 will accept concerning its due execution will be from one of the witnesses

who attested to the will except in cases where they cannot be found or

they are dead. But even where the witnesses cannot be traced, the Court

will look for some evidence from other people who were present and

witnessed the execution.

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

be conscious of the act done and be able to prove it in evidence.’ (per

Lushington LJ in Hudson v Parker (1844)1 Rob Ecc 14, it follows that:

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

perception of the Testator’s act or signing of acknowledging the will.

Thus, in Re Gibson (1949) 2 ALL ER 90, for instance, a codicil failed

because one witness was blind. However, it is arguable that where the

will or T’s signature is written in braille, it can be acknowledged to a

blind witness who is able to read such writing;

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

well as bodily.’ For example, he must not be asleep or intoxicated or of

unsound mind when the will is being executed. The provision does not

however require that more than one witness be present at the same

time

 The requirement that the witnesses must also sign the Will

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

attestation mentioned in this provision includes signing. They must do so

after the testator has signed. It is therefore possible for a will to be

invalidated by the fact that it was signed by a witness before the testator

had signed in the presence of both witnesses or acknowledged his signature.

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

The Testator must also be aware that the witnesses are signing the will.

However, if for some reason, the testator is so incapacitated for them to be

conscious of this fact, the signature is invalid. It is worth noting that the

exception to this is periodical lapses of consciousness which will not

invalidate the signature.

Awareness in these circumstances means that the testator must see the

witnesses in the process of signing the will.

The witnesses need not sign the will in the presence of each other for the will

to be valid.

1.5 Incorporation of Documents

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

codicil duly attested refers to any other document then actually written as

expressing any part of his or her intentions.

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

which it is referred to. For the doctrine of incorporation by reference to

apply, the following three conditions must be fulfilled;

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

Singleton v Tomlinson (1878) 3 App Cases 404, the testator by will

directed his executors to sell four landed estates referred to in his will.
 Details of the same were set out in a schedule signed by the testator,

which bore the same date as the will and was annexed to it. The

witnesses were uncertain whether they had seen the schedule at the

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

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

in existence when the will was executed.

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

Unless the will describes the relevant document in terms which signify

that it is in existence at the time the will is executed, it cannot be

incorporated into the will.

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

incorporation by reference unless the terms used in the will to describe

the document are clear enough to enable it to be identified.

1.6 Capacity

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

and persons of unsound mind are incapable of making a valid will. S.36 of

the SA sets out the testamentary capacity.

(a) Age

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

capacity is statutorily entrenched in S.36(1) of the Succession Act. Scholars

have advanced two major reasons why a minor is denied testamentary

capacity.
This is so because; (i)that although they may know exactly what the function

of a will is and exactly what will they wish to make, they may nevertheless

lack the discretion to make a responsible will. (ii) That they are at an age

where they may be more easily subjected to undue influence by a relative or

close friend than an adult might be.

(b)Mental state

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

although this doesnot mean that such persons are destined to die intestate.

If such a person makes a will before his mind becomes afflicted or makes it

during a lucid interval, such a will is valid.

The test of mental capacity to make a will is not directly linked to mental

disorder, but to the testator’s capacity to understand the nature of the will

making

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

test in the following terms;

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

ought to be capable of making his will with an understanding of the nature of

the business in which he is engaged, a recollection of the property he means

to dispose of and of the persons who are the objects of his bounty and the

manner it is to be distributed between them.”

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

approval by the Tanzanian Court of Appeal in Vaghella v Vaghella (1999) 2

EA 351 where it was stated that the validity of a will derives from the
testamentary capacity of the testator and from the circumstances attending

its making.

This test requires 3 things of the T;

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

act of making a will and its effects. He would lack a sound mind if he does

not understand what he is precisely doing either because he is of low

mentality or is under the influence of a drink or drugs.

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

property of which he is disposing.

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

claims upon him; otherwise, the omission to adequately cater for any

dependant could attract an application under S.38 of the Act. He should

be able to remember the persons he is morally bound to provide for

having regard to their relationship with him. In Harwood v Baker (1840) 3

Moo PC 282, a T executed his will on his death bed and left all his estate

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

the time suffering from a disease that affected his brain. It was held that

based on the evidence, he did not have sufficient recollection of his other

family members and therefore lacked capacity to make the will.

(c) Insane delusions

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

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

of understanding unimpaired. However, the approach of the courts to

 construing insane delusions as a vitiating factor differs depending on the

impact of the delusion. According to the court in the case of Dew v Clark

(1826) a person suffers from an insane delusion if he holds a belief of a

particular matter which no rational person could hold and the belief

cannot be eradicated from his mind by reasoning with him for example

where one holds the erroneous belief that he is being bewitched.

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

some ways affects the way he disposed of his property. In Dew v Clark

(Supra) the T made a will which was rational superficially, but which

excluded his daughter from benefit. The daughter showed by way of

extrinsic evidence that the testator had an insane aversion of her. He had

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

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

believed that evil spirits and a person who was already dead were

pursuing him. The court found that although the T suffered from an insane

delusion the same did not affect his testamentary capacity as the

delusion did not affect the way in which he disposed of his property by

will. The will was held to be valid.

Sometimes the delusion may only affect the validity of a part of a will. In

such a case, probate will be granted to such parts of the will as are not

affected by the delusion. Case in point is Re Bohrmann’s Estate (1938) 1

AII ER 24

1.5 GRANTS OF REPRESENTATION

 A grant of representation is an order in the form of a certificate, issued by

the court to confirm that a particular person is to act as a personal

representative of the dead person. A grant should only be made in

respect of the estate of one deceased person. It is not permissible to issue

one grant in respect of two or more estates.

The High Court has jurisdiction to grant probate and letters of

administration under S.235 as amended of the SA. The amendment

repealed subsection 2 of S.235.

1.5.1 Purposes and Types

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

and grants of letters of administration.

The grant of probate in the case of testate succession establishes the

validity of the will, while in intestacy; it establishes that the deceased died

intestate. A grant of representation is needed to administer the estate of

a deceased person except for small estates which may be administered

without a grant.

1.5.2 Executors and Administrators

The personal representative represents the deceased. His role generally

known as representation is that of a person authorised in law to dispose of

the property of someone who has died. He steps into the shoes of the

deceased in the sense of being able to lawfully do such things as the

deceased himself may have done if he were alive. The office of personal

representative is one for life.

A personal representative appointed under a will to distribute the property

of a dead person according to the terms of the will is called an executor,

as he executes the wishes of the dead person. An executor is defined is in

S.2(h) of the SA.

S.180 of the SA is to the effect that the executor or administrator as the

case may be, of a deceased person is his or her legal representative for all

purposes and all the property of the deceased person vests in him or her

as such.

The person appointed by the court in case of intestacy and in testate

cases where there is no proven executor is called an administrator. The

executor in testate succession derives his authority from the will and the

grant of probate merely confirms the executor.

In intestacy, the grant of letters of administration is the source of the

authority of the administrator. Administrators are normally appointed

where the deceased dies intestate. They will also be appointed in cases

where the deceased dies leaving a will that, while disposing of the assets,

does not appoint any executors or those appointed are unable to act or

unwilling to act.

In the Matter of the Estate of Joseph Muchoki Muriki (deceased) Nyeri

High Court Succession Cause Number 396 of 1999, Khamoni J stated that

executors and administrators should not be confused with beneficiaries.

Beneficiaries are those persons benefitting from the distribution of the

estate of a deceased person.

 A personal representative can also be a beneficiary if he is entitled to a

share of the estate.

1.5.3 Appointment of Executors

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

appointment of an executor/executors is not a mandatory requirement

but in practice a will is considered incomplete or badly drafted if it omits

to appoint executors.

a) Persons qualified for appointment

Persons who are usually appointed executors include spouses, advocates,

banks, friends and the Public Trustee.

Spouses

A husband usually appoints his wife to be his executor and the converse is

true, this is especially in circumstances where they do not have grown up

children. This is preferable because in most cases, the spouse is the

residuary legatee and it is only sensible that the person with the biggest

stake in the estate should have a hand in its administration. Where a spouse

is appointed, it is also advisable to appoint a co-executor especially one of

the grown-up children.

Advocates

These may also be appointed as executors but the testator is not obliged to

appoint as executor the advocate who drafts the will or keeps it in safe
custody. Where an advocate is appointed as executor, the will should also

provide for his renumeration for acting as such.

The relevant clause in the will usually provides that the advocate will charge

his professional fees on the estate. Advocates are normally appointed

executors where they are involved in the management of the estate. For

example, where the advocate handles

the legal affairs of the estate’s businesses or had been a family lawyer for

the deceased.

Banks

The bank is the most suitable choice of all available possible executors,

particularly where there is family strife such that the appointment of a

person within the family will lead to discontent. It may also happen where

there is no other suitable individual at hand, for example where a widow is

making a will in favour of her children who are minors. A bank is most

suitable as an executor where the will creates trusts that are likely to

continue for many years.

The advantage with this is that the bank is capable of remaining executor for

a longer period than a mortal executor who will need to be replaced

eventually. Most banks have trustee departments whose sole responsibility is

to manage the estates of persons who have appointed them executors.

The Public Trustee

The Public Trustee is in Ministry of Justice and Constitutional Affairs under the

Directorate of Administrator General and Public Trustee whose mandate is

ensure that the estates of the deceased persons, missing persons and

persons of unsound mind are administered in accordance with the

Succession Laws of Uganda. The Directorate shall among others manage

estates of deceased persons, missing persons, properties of minors and

persons of unsound mind in accordance with the Public Trustee Act Cap 161.

The Public Trustee shall institute legal proceedings against intermeddlers

and fraudulent administrators of deceased persons’ estates.

Executors may be impliedly appointed

Some executors may be impliedly appointed and these are called “executors

according to the tenor of the will.” To be so impliedly appointed, it must be

shown that the testator intended that the person so appointed should carry

out the duties of an executor as stipulated in the Act.

Whether a person is impliedly appointed an executor is dependent on the

construction of the will. In Re Russel’s Goods (1892), P 380 trustees were

appointed to ‘carry out my will’ and this was held to be sufficient to make the

trustees the executors according to the tenor of the will. In Re Adamson

[1875] LR 3, it was held that the persons instructed under the terms of the

will to pay the deceased’s debts and funeral expenses and to pay the

balance of the estate to named persons were executors according to the

tenor of the will.

1.5.4 Grant of Probate

a) Testacy
A Grant of Probate is defined in S.2(s) as a grant by a court of competent

jurisdiction authorising the executor named in the testator’s last will to

administer the testator’s estate.

A Grant of Probate under S.182 of the SA can only be granted to an executor

appointed by will. The grant should only be in respect of all property to which

the will provides. It is usually made to or obtained by the executor or

executors appointed by the will.

b) Persons entitled to the grant of probate

A grant can only be sought by and issued to an executor appointed under

the will. Under S.185, probate may be granted to all executors

simultaneously or at different times in circumstances where several

executors are appointed. In S.187, where probate has been granted to

several executors and one of them dies, the entire representation of the

testator accrues to the surviving executors. They don’t all have to take out a

grant of probate. Probate shall not be granted to any person who is a minor

or is of unsound mind.

c) Effect of a grant of probate

Probate of a will when granted establishes the will from the death of the

testator and renders valid all intermediate acts of the executor as such, this

is provided for under S.189 as amended. Essentially this means that the

grant of probate is proof of the terms and the proper execution of the will.
The other effect is to confirm the executor’s authority to act. It merely

confirms the executor’s authority since the executor actually derives his

authority from the will itself as stated in Kantilal Shah v Southern Credit

Banking Corporation Ltd Nairobi Milimani High Court Civil case number 543

of 2005.

Theoretically, the executor(s) can administer the estate, sue and be sued

and exercise any of the administrative powers conferred upon him/them by

the will or by statute before the grant of probate is obtained. However, in

practice, there is need for a grant of probate as evidence of their authority to

act to enable them discharge their duties as such effectively.

Obtaining a Grant of Probate

a) A person presents a Petition to Court praying a grant of Probate. The

petition is provided for under S.244 as amended of the SA which spells

out the form and contents of the petition. The petition must be signed and

verified by the petitioner as provided for in S.247 of the SA and verified by

one witness to the will as provided for in S.248 of the SA.

b) The procedure followed hereafter is similar to the procedure laid out

above.

1.6 Knowledge and Approval

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

approve the contents of his will. A ‘T’ knows the contents of the will if he

is aware and understands the terms of the will; He need not understand

the precise legal effect of the terms. A ‘T’ approves the terms of the will if
he executes it in those terms on his own volition and not because of

coercion or undue influence of another.

The knowledge and approval of the ‘T’ may also be absent because of

mistake or fraud. This requirement is of particular significance when the

will is drawn up for the T by a third party for example a friend, a relative

or a professional person such as an advocate.

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

Court of Appeal CA 99/1988 that it is essential to the validity of a will that

at the time of its execution the ‘T’ should know and approve of its

contents: for where a will, rational on the face of it, is shown to have been

executed and attested in the manner prescribed by law it is presumed, in

the absence of any evidence to the contrary, to have been made by a

person of competent understanding, but if there are circumstances in

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

must be against its validity.

a) Time of Knowledge and approval

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

will is at the time of execution. There is an exception to this general rule

set out in the case In the Estate of Wallace (1952) 2 TLR 925, that a will

may be valid despite lack of knowledge and approval at the time of

execution so long as: one, the T knew and approved the contents of the

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

will. Two, the will was prepared in accordance with his instructions; and at
the time the will was executed the ‘T’ understood that he was executing a

will for which he had earlier given instructions. In this case, the ‘T’ who

was seriously ill had written and signed a document entitled “last wish.”

At the time of execution, he knew and approved the contents of the

document. A solicitor then prepared his will in accordance with the

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

died, he did not know and approve the contents of the will that were read

over to him. It was held that the will was valid.

b) Suspicious circumstances

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

under the will, this will be regarded as a suspicious circumstance. In Vijay

Chand v Public Trustee Nairobi Court of Appeal Civil Appeal 63/1984, Platt

JA stated that where the pro-pounder of the will is the principal

beneficiary under it, it is the duty of the court to scrutinise the evidence of

the pro-pounder vigilantly and jealously following the contra proferentum

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

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

testator along to the advocate of that person’s choice the circumstances

will be regarded as suspicious.

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

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

the solicitor and the rest to friends. The testator’s son challenged the will

on the grounds of (among others) suspicious circumstances, lt was held

that the circumstances were on the face of it suspicious, but the suspicion

was dispelled by two factors: the fact that the will was executed before

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

excluded from the will because of his criminal conduct.

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

at sixty-five. He married and left behind no wife or children. A brother and

two sisters survived him. He owned real property. Two days before his

death; he made a will under the terms of which he bequeathed the

property to the brother. According to the brother, the deceased dictated

his wishes and the brother reduced them into writing. The will was then

thumb-printed by the deceased and witnessed by, among others, the

brother and his wife. Following the death of the deceased, the brother

applied for grant of probate of the will of the deceased. The sisters sought

a revocation of the grant on the grounds of suspicious circumstances. It

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

had removed the deceased from their mother’s house to his (the

brother’s) house for baptism and then shifted him back. It also emerged

that when he (the brother) wanted the deceased to dictate and execute

the alleged will he moved the deceased again from their mother’s house

to his own house. At the same time, the brother exhibited considerable

animosity towards the sisters whom he prevented from entering his

house. At the time, the deceased allegedly dictated the will he was quite

ill and could not walk without support. It was held by the High Court that
the circumstances showed suspicion and that the will was therefore

invalid. The grant was revoked. An appeal to the Court of Appeal on this

aspect of the High Court decision was rejected with the C/A stating that

the brother was not only the author of the will but also the sole

beneficiary under it he had a duty to do everything above board.

c) Mistake

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

mistake on the part of the testator or of a person employed by him to

draft the will. The mistake may relate to part or the whole of the will. A

mistake relating to the whole will renders it invalid, while a partial mistake

may be corrected or otherwise that portion of the will revoked.

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

sometime decided to alter some of its provisions. She instructed a

solicitor to prepare a codicil to effect the changes. The solicitor made a

mistake while drafting and inserted an erroneous figure. The testatrix

executed the codicil upon merely passing a glance through it but without

reading the contents. The executors brought an action asking them to be

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

allowed them to do so.

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

the legal effects of the words, the will be considered valid and admissible

for probate. In Collins v Elstone (1893) P 1, the testatrix was given

incorrect information as to the extent to which a revocation clause in her

will operated but she executed the will. It was held that the will was valid

and admissible to probate, as she knew about it and had approved the

contents, the words notwithstanding.

d) Coercion or Undue influence

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

influence being exercised on the testator. Undue influence occurs when a

testator is coerced into making a will or some part of it that he does not

want to make. Undue influence is proved if it can be shown that the

testator was induced or coerced into making dispositions that he did not

really intend to make. It is common where the T is of weak or impaired

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

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

coercion on a deceased person. At the High Court Bosire J (as he then

was) said: “The Petitioner was obliged but did not demonstrate that the

deceased freely and consciously dictated and executed the alleged will.

He did not call evidence to exclude the possibility of having unduly

influenced the deceased to will his property to him.”

A distinction should be drawn between undue influence and persuasion.

Lord Penzance in Hall v Hall (1869) LR 1 P and D 481 brought out the

distinction as follows:

“Persuasion is not unlawful, but pressure of whatever character if so

exerted as to overpower the volition without convincing the judgement of

the testator will constitute undue influence though no force is either used

or threatened.”

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

deceased who was illiterate gave instructions regarding the disposal of his

assets upon death, which instructions were reduced into writing by one of

the people present. He distributed his land to his wife and children

including the appellant, a married daughter. The document was thumb

printed by the deceased in the presence of two witnesses who did not

however sign it. When the appellant was told by her father of the gift, she

said she would not believe it unless another document was made to show

her father’s good faith. The deceased caused another document to be

prepared which he thumb printed after it was signed by the attesting

witness; the appellant sought a grant of probate on both documents. The

other beneficiaries alleged that the second will/document was not valid,

as coercion had been exercised on the deceased to make a will in the

appellant’s favour. It was held that there was no coercion. The evidence

suggested persuasion only, yet persuasion is not unlawful. The Court of

Appeal said that in the second document the deceased only confirmed the

earlier document was he distributed his estate in the second document as

per the terms of the first.

Coercion amounting to undue influence can take various forms; actual

physical force or the incessant talking to a sick, frail or elderly testator.

The burden of proof lies with the person alleging coercion or undue

influence. In the Matter of Philly, Nyarangi Otundo (deceased) Nairobi

High Court Succession Cause Number 2078 of 1997, a will was challenged

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

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

by the deceased while on her sick bed. The court found that the deceased

had made the will freely, and that the applicants had not proved their

case.

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

Succession Cause No 523 of 1996 (Koome J ), undue influence was alleged

in the matter because it was the eldest son of the deceased who

suggested that he should write a will and got the family priest to convince

the deceased to make the will. The objectors also pointed out that the

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

eldest son must have driven the deceased into making the will in the

manner he made it. The Court was not convinced that the eldest son had

exercised undue influence on the deceased as the deceased had

previously donated a power of attorney to the son to act on his behalf

during his lifetime. The deceased was convinced by a respected citizen, a

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

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

elderly person to live with their eldest son.

Undue influence is common in confidential relationships, particularly

those of a religious nature. In Parfitt v Lawless (1872) LR 2 P and D 462,

the testatrix left her residuary estate to a Roman Catholic Priest who was

her confessor and who lived with her and her husband. It was alleged that

the confidential relationship between them gave rise to a presumption of

undue influence. It was held however that there was no positive evidence

of undue influence.

In Re Harden [1959 CYLB] 3448, The Times 30 June 1959, a testatrix left

property to a spiritualist medium after he allegedly transmitted messages

‘from the other side’ to her as to what she should do with her property

upon death. The messages were dictated to her and resulted in her

executing two wills that made the medium a substantial beneficiary of her

estate. It was held that the medium had taken control of the testatrix’s

mind to the extent that she had written what he wanted rather than the

record of her mind. The will was invalidated on the ground of undue

influence.

e) Fraud

Knowledge and approval will also be absent if the testator makes a gift by

will or excludes a person from benefit as a result of false statements

which have been made about an intended beneficiary’s character or

conduct. In the Estate of Posner (1953) P 557 a gift made to a beneficiary

who fraudulently misrepresented herself to be the testator’s wife was

invalidated.
In Pauline Ndeta Kinyota Maingi v Rael Kinyota Maingi Nairobi C/A Civil

Appeal No 66/1984, the deceased appointed a woman he described as his

wife the executrix and trustee of his will. He had married the woman

under the Statute while still married under customary law to the first wife.

He also stated falsely that he was divorced from his first wife and

purported to disinherit her completely. The Court of Appeal held that the

purported statutory marriage was null and void by virtue of the Marriage

Act and the African Christian Marriage and Divorce Act, because the

deceased was already married under customary law, he could only

lawfully contract another marriage according to customary law under

whose procedure a marriage is potentially polygamous. It was further held

that the appointment of the said woman as an executrix was both

fraudulent and illegal in the circumstances, as the testator relied on

deliberate falsehood. The appointment of the executrix and trustee was

therefore void for fraud and illegality rendering the executorship

impossible.

f) Forgery

A Will will also be void if it forged. In such a case there is lack of

knowledge and approval by the testator of the contents of the will. The

forged will is not the will of the testator.

In Elizabeth Kamene Ndolo v George Matata Ndolo (1995) LLR 390, the

C/A stated that the charge of forgery or fraud is a serious one, the

standard of proof required of the alleger is higher than that required in

 ordinary civil cases, that is proof upon a balance of probabilities, but

certainly not beyond a reasonable doubt as in criminal cases.

In the Matter of Estate of James Ngengi Muigai(supra), the allegedly

forged will was submitted to the Criminal Investigations Department at

the request of the objectors following a criminal complaint. The document

was subjected to an examination and the alleged forged signature of the

deceased was compared with the deceased’s known signatures. The

expert document examiner concluded that the signature on the document

was that of the deceased. The Court held that the will was not a forgery.

1.7 Revocation, Alteration and Revival of Wills

Wills once made are liable to change by their maker, either through

alteration, revocation or revival in cases where there has been a

revocation.

1.7.1 Revocation

All wills are revocable. The freedom to make a will extends to cover the

freedom to revoke it. A will can be revoked voluntarily or involuntarily.

Voluntary revocation namely express revocation, revocation by some

duly executed writing and revocation by destruction. These methods

require mental capacity to the same degree for the creation of a will

and the intention to revoke.

Revocation by marriage is the only involuntary method of revocation;

this arises by operation of law and it therefore does not require that

the testator had mental capacity or intention to revoke.

a) Express Revocation

S.57 of the SA provides for the revocation of a will or codicil by another

will or codicil declaring an intention to revoke it. Professionally drawn

wills invariably contain an expression revocation clause taking this

form: “l revoke all former wills and testamentary dispositions

heretofore made by me.”

It is not sufficient to say that “This is the last will and testament made

by me.” This would not be an express revocation clause. It was held in

Re Hawksley’s Settlement [1934] Ch 384 that the description of the

will as the testator’s last will was not sufficient for an express

revocation clause.

Revocation may be of whole or part of the will or codicil. A codicil is

often used when only parts of the will are to be revoked.

b) Revocation by some duly executed writing

It is contemplated by S.57 that some other writing declaring intention

to revoke a will and duly executed can substantially revoke a will.

In Re Sparklan’s Estate (1938) 2 AII ER 345, a letter signed by the

testator and duly attested, addressed to a bank manager instructing

 him to destroy a will by a testator was held to have effectively revoked

the will. The will was revoked as soon as the letter was duly executed.

c)Revocation by Destruction

Section 57 provides for Revocation by burning, tearing or otherwise

destroying of the will or codicil by the testator with the intention of

revoking, or by some person in his or her presence and by his or her

direction. Revocation by destruction involves two distinct elements;

(i)the actual destruction of the will and (ii) the intention to revoke the

will. Both elements must be present.

i) Actual Destruction

This must be by the physical act of burning, tearing or otherwise

destroying the will. Otherwise destroying has been construed using the

ejusdem generis rule to require that the acts of destruction are of the

same kind as burning, tearing.

In Cheese v Lovejoy (1877) 2 P and D 251, a testator cancelled his will

by striking out its clauses and his signature with a pen and then writing

at the back of the will “All these are revoked.” He threw the will in a

pile of waste paper in the corner of the room where his house cleaner

retrieved it and kept it in a kitchen drawer until the testator’s death

eight years later. It was held that he did not amount to “otherwise

destroying.” Although he intended to revoke the will, it had not been

destroyed and it was admitted to probate.

In Re Morton’s Goods (1887) 12 P and D, the testator’s signature was

completely scratched out. It was held that it amounted to otherwise

destroying.

Where the actual destruction of part of a will results in the revocation

of a whole or part of the will depends on the part actually destroyed. If

the destroyed part impinges on the whole will then the whole Will will

be revoked. For example, the destruction of the part of the will

containing the signature.

To establish actual destruction, it must be proved that the acts of

destruction were completed by the testator. In Doe D Perkes v Perkes

(1820), 3 B and Ald 489, the testator tore his will into four pieces in a

rage with one of the beneficiaries named in the will. He thereafter

became calmer and put the pieces together. It was held that there was

no actual destruction as the testator had not completed all that he had

intended to do by way of destruction.

Destruction must be by the testator or by someone in his presence and

by his direction;

The acts of destruction must be by the testator or by some other

person in the testator’s presence and under his direction.

In Re Dadd’s Goods (1857) 209 a testatrix on her deathbed expressed

a wish to revoke a codicil. Her executor and a neighbour went out of

her presence into the kitchen and burnt the codicil. It was held that

there was no actual destruction.

If the destruction is done by some other person, it must be done in the

presence of the testator and by his direction. In Gills v Gils (1909) at

157, the testator’s wife tore up his will in a fit of temper and it was

held that there was no actual destruction as the will was not destroyed

under the testator’s direction.

A destruction of a will by someone else must be done in the presence

of the testator, Where instructions are given to an advocate by a client

asking the advocate to destroy the client’s will in his possession and

then the advocate destroys the same in the absence of the client, the

act of destruction in such a case does not amount to the actual

destruction of the will and there would be no revocation of the subject

will since the destruction was done in the client’s absence and at any

rate without his direction.

ii) Intention to revoke

With regard to intention to revoke, the ‘T’ must have the same

capacity to revoke as is necessary to execute a valid will. In Re Aynsley

[1973] 1 Ch 172 a testatrix who was old and confused tore her will into

forty pieces. The Judge put the pieces together in a one-hour

operation. It was held that the testatrix lacked mental capacity to

revoke and the will was therefore still valid.

The destruction must not be accidental. If a fire at home destroyed a

will, the same would not amount to revocation by destruction, as there

would be no intention on the part of the testator to revoke the will by

destruction. The happening or occurrence of the accident negates

intention to destroy the will.

Presumption concerning revocation by destruction

In some cases, a will may be lost or found torn or mutilated after the

testator’s death. In such cases, the will is presumed to have been

destroyed by the testator with the intention of revoking it in cases

where the will was last known to be in his possession. However, in

cases where it is not possible to point to the last whereabouts of a will

to the testator, then the presumption that it was intended to be

destroyed with the intention of revoking it will not arise.

The presumption can be rebutted by evidence to the contrary by

proving on a balance of probabilities that the testator did not seek to

revoke the will but that the will was actually stolen, lost or misplaced.

In Re Jones [1976] 1 AII ER 593, the appellant challenged a will made

by the testatrix who was their aunt in which she had left a bequest to

the respondents who were her favourite nieces. At the time the will

was made, the respondents used to visit and help the testatrix. In

appreciation, the aunt left her house and land to them under the will.

On learning of the contents of the will, the respondents stopped

visiting her and giving her any support. The testatrix apparently in

retaliation, decided to revoke her will to disinherit them of the bequest.

She informed her lawyer and someone else about the intention, but

she died before her instructions could be carried out. After her death, a

copy of the will was found in her house mutilated at the part in which

she had bequeathed the house and land to the respondents. She had

also cut out her signature from the will. It was held that the actions of

the testatrix indicated an absolute intention to revoke the will and the

same was effectively carried out as characterised by the act of

destruction. The effect was that the deceased died intestate.

d)Revocation by Marriage

Section 56 provides for this revocation of marriage. Generally, the

marriage of the ‘T’ automatically revokes any will or codicil made prior

to the marriage. The reason for this rule is that marriage and the birth

of issue to the testator, constitutes an important change of the

circumstances of the testator and it is equitable in the event for the

person’s estate to devolve on an intestacy rather than under a will

made before marriage and the birth of the children.

It is important to note that a Will will not only be revoked by a valid

marriage but also a voidable marriage since a voidable marriage has

capacity to either became valid or subsequently annulled. However, a

void marriage will not affect an earlier will.

In Mette v Mette (1859) 1 Sw & Tr 416, where the testator married his

wife’s sister, the marriage though celebrated out of the English

 jurisdiction, was void for falling within prohibited degrees of affinity

and therefore was held not to revoke his earlier will.

Conditional Revocation

Once an intention to revoke is established, it is necessary to decide

whether the intention is absolute or conditional. It is a question of fact

in the case of actual destruction but a matter of construction in the

case of express revocation. If the intention is conditional, the

revocation does not take effect until the condition is fulfilled. This

effectively means that where a testator revokes his will with the

intention of making a new one and for some reason fails to make a

new one, the original will remains valid.

Where the court is satisfied that that the testator did not intend to

revoke the will absolutely, but merely revoked it as a first step towards

making a new will. If the intention is absolute, the revocation takes

effect immediately.

1.7.2 Alteration of Wills and Codicils

Section 58 of the SA provides for the alterations of wills.

Where the words of a will are obliterated or altered in some ways or

interlineations are made, the effect of these changes depends on

whether the alterations were made before the execution of the will or

after.

An alteration made before the execution of the will, is valid so long as

it is final rather than deliberate. In Re Bellamy’s Goods, if it is in pencil,

it is presumed to be merely deliberative and without evidence, to the

contrary it would not therefore be valid.

In Cooper v Bockett (1846) 4 Moo PCC 320, the court stated that with

respect to alterations made before the execution of the will, there is a

presumption that they have been made after execution unless the

alteration is to fill in a blank space in the will. Either extrinsic evidence

or evidence from the will itself is admissible to rebut the presumption.

In view of the presumption, it is advisable in practice to execute an

alteration even if it has been made before the execution of the will.

In Kell v Charmer (1856) 23 Beaver 195, it was held that where the

alteration is made to fill a blank space in the will, the presumption is

that the alteration was made before the execution of the will.

Alterations made after execution of the will are invalid unless they

have been executed. Under S.58, if the alterations are made after the

execution of the will, they would be invalid unless they have been duly

executed in accordance with the formalities required for the execution

of the will. The formalities are complied with if the testator and the

witnesses place their initials in the margin or on some other part of the

will opposite or near to the alteration or at the foot or end of, or

opposite to, a memorandum referring to the alteration and written at

the end or some other part of the will.

In Re Horsford’s Goods [1874] LR 3 P and D 221, it was said that where

an unattested alteration has been made after the execution of the will
 the precise effect depends on whether the original wording is apparent

or not apparent. The original wording will be apparent for this purpose

if the original words can be deciphered by an expert through natural

means. This means that the original words can be ascertained from the

face of the will without physically interfering with the will.

According to the decision in the case of Re Hamer’s Estate (1943) 113

LJP 31, where an unattested alteration has been made and the words

are apparent the will is admitted to probate with the original wording

ignoring the alteration. Where an unattested alteration has been made

and the original words are not apparent the general rule is that

probate of the will is granted with a blank space.

1.7.3 Revival of Wills

Section 60 provides for the revival of wills. A testator may revive a will,

codicil or anyone of them that has been revoked, provided that it has

not been destroyed.

Revival usually involves either the re-execution of the will with proper

formalities or a duly executed codicil. In both cases there should be an

intention to revive the revoked document.

Such intention is deciphered from the circumstances of the case, for

example, the testator’s oral affirmation to that effect or his re-calling of

the will from where it has been kept.

A codicil is used to revive part of a revoked will, while a will which has

been totally revoked can be revived only by re-execution. It was stated

 in Re Hardyman [1925] Ch 287, that the effect of a revival of a will or

codicil is to make the same speak from the date on which it was

revived. As it speaks from the date of the revival, references to

persons in the will or codicil are to persons at the date of revival.

In Re Reeves [1928] Ch 351, the fact that the revival of the will speaks

from the date of revival also affects reference to property.

INTESTATE SUCCESSION