FAMILY LAW II

LAW RELATING TO CHILDREN AND TESTATES SUCCESSION

Under Article 257 (c) of the constitution and s.2 of the children act a child means a person below
the age of eighteen years

These are provided for under articles, 30, 31 (children should be cared for) and 34 as well as all
other rights enshrines in the constitution and section 4, 5, 6 and 7 of the children’s act. These
include
a) the right to know and be cared for by parents
b) to be brought up by parents
c) to basic education under Art 30
d) other social and economic rights
e) employment
f) to be protected from social and economic exploitation
g) to access medical treatment etc
h) to maintenance

Where children are established or found to be offender, they have a right not to be held in custody
with adult offender.
Accordingly, under S.5 (1) of the children Act, it is the duty of a parent, guardian or any person
having custody of a child to maintain that child and, in particular, that duty gives a child the right
to;-
a) education and guidance;
b) immunization;
c) adequate diet;
d) clothing;
e) shelter, and
f) medical attention
s.7, 8 and 5 (2) of the children’s act Provide for a child’s protection from harmful custody practices
e.g. discrimination, harmful employment excreta
The bench mark in all cases involving children is the welfare principle. This is embedded in section
3 and 1st schedule to the children act. It provides to the effect the welfare of the child is the
paramount consideration. This means that any action or decision concerning a child that is made
by a court, local council or any person whether as a parent or not must always be guided by the
child’s needs.

What is the criterion of determining what decision will ensure the child's welfare?
Paragraph 3 to the 1st schedule to the Children Act elucidates thus;
In determining any question relating to the upbringing of the child and administration of the
child's property, the court or any other person shall have regard in particular to;
a). The ascertainable wishes and feelings of the child concerned which depend on the age and
understanding of the child. Thus, views of the child so long as they are not the result of
threats or coercion should be taken into account.
b). the child’s physical, emotional and educational needs;
c). the likely effects of any change in the child’s circumstances
d). the child’s age, sex background and any other circumstances relevant in the matter
e). any harm that the child has suffered or is at the risk of suffering
f). Where relevant, the capacity of the child's parents, guardians or others involved in the care
of the child in meeting his or her needs.

ADOPTION
Adoption is the legal process or act whereby a court-extinguishes the ties between a parent or
guardians and vests the legal rights, duties and obligations in another person called the adopter.
Through adoption the child legally ceases to be a member of the biological family and becomes a
member of another family (the adopting family). It severs the legal relationship between the
natural parents and places it in the position of the illegitimate child of its adopting parents.

CONDITIONS NECESSARY FOR ADOPTION

a) The applicant or at least one of the joint applicants has attained the age of twenty-five
years and is at least twenty-one years older than the child. .
b) An adoption order shall not be made in favour of a sole male applicant in respect of a
female child, or in favour of a sole female applicant in respect of a male child, unless the
 court is satisfied that there are special circumstances that justify; as an exceptional measure,
the making of an adoption order.

Thus, in Re George Kagulu, Rebecca & others Misc app No 43/44/45 of 1998. Court held
that in granting an order for adoption, the paramount interest of the child would be served by the
uncle looking after the child because he was linked with them and he had love and affection for
them. In this case, the applicant was the natural paternal uncle of the infants and one of the infants
Rebecca was a girl. However, the court was satisfied that this fell under special circumstances and
the adoption order was granted. Court stated that on the issue of Rebecca being a girl, the
applicant was her uncle. That the law intended to stop a male from adopting a girl whom he could
later seduce or marry but Rebecca was a daughter of the of the applicant’s brother, so there was
nothing obnoxious in granting the application.

In the case of an application by a married couple, consent of either spouse should be obtained or
in case of an application by one of the spouses, the other has consented to the adoption.

In Re Laura (Alias Lora) Weir Misc Adoption clause, the petitioners were step father and
natural mother respectively and Laura, (the children's father (partner.) But his whereabouts were
unknown and an adoption order was granted. Similarly in Re Elena Nsubuga Kaggwa Misc
cause No 41/89, the natural father of the infant was dead and the adoption order was given to
her step father and natural mother.
Therefore consent can be dispensed with if the spouse can’t be found if they are
separated

Thus in Re F (R) Infant, court held that before agreement consent could be dispensed with on
the grounds that the parent could not be found it has to be shown that all reasonable and proper
steps had been taken. In this case it was held that such steps had not been taken. Since in their
search for the birth mother, the applicant had failed to get in touch with the father with whom
the mother was still in contact with.

● If the partner is not in contact with.

 ● The married people are living apart and not likely to live together again.

NB
Married couples can jointly apply for an adoption
An adoption order can't be issued to more than one person at the same time except for married
couples

Under sec 47 (3) of the children’s act , while an application for an adoption order is pending in the
court, a parent who has given his or her consent to the adoption is not entitled except with the
leave of the court to remove the child from the care and custody of the applicant
However, court may refuse to grant leave to remove the child from the care and custody of the
applicant under subsection (3) if it considers it significantly harmful to the welfare of the child. See
s.47 (4)

If in the view of the court a child is able to understand the adoption proceedings then his or
her opinion shall be taken into consideration as provided under s. 47

Under S.47 (6) of the Children's Act where the child is 14 years of age and above his /her
consent must be obtained unless she/he is in capable of expressing his/her wishes.

What if the father or mother cannot be found, who can give or from whom can the consent
be procured?
Under S.47 of the Children's Act court may require the consent of the person not being parent
who has obligations under any court order, agreement or customary law.

Under S. 47 (7) of the Children Act, where it appears to the court that any person who is not the
parent of the child has any rights or obligations in respect of the child under any order of the
court or agreement or under customary law or otherwise, the court may require the consent of
that person before the adoption order is made.

Another requirement that should be fulfilled before an adoption order can be made is the report
of the probation and social welfare officer. Accordingly, S. 47(8) of the Act provides that the court
may also request a probation and social welfare officer to prepare a report to assist it to determine
whether any person who is not a parent of the child has any rights or obligations in respect of the
child and whether that person's consent ought to be obtained before the making of the adoption
order.

e) As a requirements, the applicant must have fostered the child for at least 36 months (3years)
under the supervision with a probation and social welfare officer. In Re Yvone Kamahi an
Infant, Adoption Cause No. 1 of 1993, court held that: - “To constitute resident one must have
stayed in Uganda for a considerable period of time. Both petitioners are resident in Britain
according to their affidavits. There is nothing before me to show that petitioners have a fixed place
of abode in Uganda or have lived in Uganda for a considerable period of time in the past or even
now. They do not therefore satisfy requirements of residence”

In Re M (infant) S.C.C.A 22/94, this was an appeal against the Ruling of Byamugisha, J where
she rejected the appellants' petition for an order for the adoption of the Infant. The infant is an
orphan. His mother was killed on 17-4-1987, by her own husband and father of the Infant; one
Katarihya. The latter died on 19-1-88, while on remand at Mityana Government Prison pending
trial for his wife's murder. The Infant was taken to the Probation Officer, Mityana B.K. Lubega by
a Good Samaritan. Lubega in turn presented the Infant to a Magistrate's Court at Mityana which
committed him to the care of Sanyu Babies Home in Kampala, as his relatives could not be traced.
Subsequently, Sanyu Babies Home and the Probation Officer, Mityana decided in the
circumstances, a foster parent or foster parents be sought for the Infant. The appellants, who are
husband and wife, offered to foster the Infant. Accordingly, on 3-2-1989, the Buganda Road
Magistrate's Court made an order committing the Infant to the care of the appellants. The Infant
has been with them ever since. Sometime in 1994, the appellants petitioned the High Court for an
Order of Adoption of the infant. Byamugisha J, who dealt with the matter found that the
appellants and Infant were Citizens of Uganda; that the appellants had attained the requisite age
and that each appellant was 21 years older than the Infant; that the Infant was 10 years old (well
below the permitted maximum age of 21 years); that the consent of infants parents could not be
obtained as they were dead and that the Infant had been in custody of the al1pellants for 4 years.
However, the Learned Judge was of the view that the appellants, who lived partly in Uganda and
partly in Austria, were not resident in Uganda and partly in Austria, were not resident in Uganda
within the meaning of Section 4(5) of the Adoption of Children Act (Cap 216). She accordingly
dismissed the petition. On appeal in the Supreme Court, it was inter alia held as per Manyindo
DCJ (as he then was) cited lord Denning MR in Fox v Shirk (1970) 2ALLER 7CA that;
a). one can have two residences and reside in both;
b). A temporary presence at an address does not make one a resident there; and
c). That temporary absence, depending on the circumstances of the case, does not deprive one
of his residence and found at the students who studied at Bristol and Cambridge and lived
there for about 36 weeks in a year were resident either at Cambridge/Bristol as their
respective parents place: and said this should have been applied and therefore that she was
wrong to hold that the applicant were not residents in Uganda.

ODOKI JSC (as he then was) stated that "The Act did not specify which kind of residence was
required for the purpose of exception. It seems to me that what was required was substantia,1
presence in or connection with Uganda. It's not necessary for some one to have a home where he
lives and sleeps and can be found daily before he is taken to be resident. A person can have
permanent residence in another place where he stays for business, employment or other reasons.”
His lordship thus concluded that in the present case, it was stated that petitioners was employed in
UNIDO. But it was stated that the petitioners were Ugandan citizens who had a permanent home
at Bbunga near Kampala where they spent their holidays once every year and bad been living with
the children since 1983. In these circumstances, a liberal and purposeful interpretation ought to
have been placed on the residential stations of the petitioners. And the infant because had a
permanent connection in Uganda therefore had long term residential interest in Uganda.
Therefore the two were residents in Uganda. Tsekoko JSC added that it can be interpreted to
include constructive residence.

In RE Mariam Kimara Bazanye, the petition sought to adopt an infant who had grown up in
the family in 15 years, She worked in Zimbabwe where she lived with her husband and family, but
came to Uganda 3 times a year to visit her relative, Court held that the adoption order could not
be made because the petitioner was not resident in Uganda; that the residence was mandatory
consideration and overrode the welfare of the infant. Justice Ongom AG said that he regretted
the conclusion but emphasized that an adoption proceeding one does not look solely at the
welfare of the child.
In Re Harry John Shilling (infant) Adoption Cause No.l5/91 the affidavit in support of the
petition indicated that they were both British citizens but resident in Botswana. Court held that the
petitioners did not satisfy the requirement under. S.A,s) of the adoption Act. as they were not
residents and that the wording of the section was mandatory no discretion was, left to the court.

In Re Dx (an infant)(1949)l Ch 320, the applicant H and W wished to adopt Under Act, the
illegitimate child, a girl of few months old, of their own daughter, who at the time of birth was
barely 16. Court held that an order under adoption of Children Act 1926, S.2a, authorizing the
adoption of an illegitimate child by its natural grand parents is not outside the scope of the Act,
but it should only be made in the special circumstances of a given case, as there may be no final
separation between a child and its natural mother and the ostensible rights of sisterhood~ so
created between those who are in fact mother and child involves the risks of grave psychological
strain and emotional disturbance to those concerned. Every case must however, be judged upon
its own facts, dealt with on its own merits and decided upon a balance of considerations and such
an order can be properly made when the court has confidence in the good sense and judgment of
adopters. The written consent to the mother though herself under age may be accepted by the
court instead of being dispensed with under Act.

In Re S (infant) (adoption by parent), in 1973, the marriage between parents of 3 young

children was dissolved. The mother was awarded custody of the children and provision was made
for the father to access them, though he did so with little interest and even irregularly paid their
maintenance. In 1976, mother married a step father whom the children had known since 1974 and
wanted to accept him as their father. In 1976, the 2 applied for adoption orders in father of
children. The issue was whether a custody order in favour of spouses or existing custody order in
favour of parent will safeguard and promote welfare of the child better than the adoption order.
Ormond LJ held that an adoption order is granted only when it's likely to safeguard and promote
interests of the child. Court granted the applicants joint custody and not an adoption order
considering their wish to be adopted and reasoned that it was advantageous for the children to
maintain their rights with their natural father. He took the view that a custody order was preferable
to an adoption order since adoption would'l1ot increase the security of the children since they
were already integrated into and secure in the new family unit consisting of their mother and
stepfather.

l
~
In Brock & Ors V Williams (1949) W was adopted while 5/6 years by L in 1912 and had resided
with him until his death in 1948, except for about 3 years after her marriage in 1939. After her
husband's death in 1942, W returned to live with L her adopter and had to consent to the
applicant been residing with him for at least 6 months before he died. W was not legally adopted
under any act. Yet under S.12 rental restriction included tenants to mean such a member of the
tenant's family so residing with him at the time of death. Court held that assuming L was a
statutory tenant under Act, after the time of death, W his adopted daughter was a member of his
family residing with him at the time of death. Denning MR stated that members of the tenant’s
family within the meaning the subsection will include step children and illegitimate children as well
as adopted children whether adopted in the form of law/not and therefore W was entitled to the
statutory protection of non-eviction by the trustee of the deceased's estate.

f). Court has to ensure that no payment has been made or promised either to the parents or to
applicant to consent to the applicant

Requirements /pre- requisites for foreign applicants in adoption

S. 46 (I) of the Children Act lays down a number of conditions to be fulfilled before adoption can
be granted to a foreigner. Accordingly, the section provides that a person who is not a citizen of
Uganda may in exceptional circumstances adopt a Ugandan child, if he or she;
a) Has stayed in Uganda for at least three years
b) Has fostered the child for at least third months under the supervision of a probation and
social welfare officer.
c) Does not have a criminal record
d) Has a recommendation concerning his or her suitability to adopt a child from his or her
country's probation and welfare office or other competent authority; and
e) Has satisfied the court that his or her country of origin will respect and recognize the adoption
order.
For the purposes of an application section 45, the probation and social welfare officer required
to submit a report to assist the court in considering the application; and the court may, in
addition require some other person or authority to make a report in respect of the application
under S. 46 (2) of the CA.

It should be noted that in addition to the above conditions, the restrictions and conditions in
Section 45 other than subsections (4) and (5) (i.e. fostering of the child for 36 months under
supervision of probation and social welfare officer and a report of such officer), apply to an
application to which this section relates.
~.
In Re Edith Nasazi Adoption cause No.4 of 97, the application for adoption was by a sole
applicant in respect of a female child. The applicant was a German tutor in Germany. He was also
the principal of the home form physically handicapped children called Light of Jesus for the
handicappers situate in Mubende district. The infant child was aged I, physically handicapped and
could not stand but only crawled on the ground and was an orphan staying with the paternal aunt.
In 1993, the aunt of the child requested the applicant to take the infant. Since then, the applicant
had been fostering the child at the home in bulera where she was attending primary school. The
issue was whether there were special circumstances that justified as an exceptional measure
justifying the making of an adoption order? Court granted the adoption order to the applicant on
the following grounds;
i) The infant child was physically handicapped and needed specialized care. She needed a
home where she could be provided with special equipment to assist her into her position.
The applicant had such a home.
ii) The applicant had been a defacto guardian of the infant since April 1991 The aunt had
told court that the applicant had looked after the child very well, giving her food, clothing,
iii) That apart from the applicant, there was no other person willing to provide for the special
care and maintenance that the infant child needed.
iv) That the applicant had acquired vast experience in looking after physically handicapped
children both at bulera and at his home country Germany.
v) That there was an aged difference of 44 years between the applicant and the infant chilled.
vi) That the applicant was married and led a settled marital existence and his wife consented
to the adoption of the infant
Effects of an adoption
Under the children Act the effect of adoption include;

a). All rights/duties and obligations of the natural parents or guardians which regard to the child
are extinguished i.e. they lose all their parental rights, duties and control over the child. There
is no longer responsible to feed or educate the child as per section 51 of the Children Act.
The obligations became vested in the adopter or if the child is born 2 the adopter in a lawful
wedlock
b). Under s. 53 of the Children Act, where an adopter dies intestate, his or her property devolves
as if the adopted child were the natural child of the adopter. And under S. 53 (2) thereof, if it
appears to the High Court on a claim made, that the disposition of property devolving on an
intestacy has been exercised unfairly against an adopted child, were the court may order such
provision as the court thinks equitable to be made for him or her out of the property
devolving on the intestacy in accordance with the law.

In short, an adopted child acquires the rights to inherit, where his adopted parents die intestate.
NB: The child loses the right from his or her natural parents if they die intestate emphatically;
adoption extinguishes any rights with the natural parents.

Under S. 53 (1) of the Children Act, where in any testamentary disposition of property, whether or
not in writing, made after the date of an adoption order, any reference, whether expressed or
implied, to the child or children of the adopter shall be construed as including a reference to the
adopted child.

Further, under S. 53 (2)thereof, where any disposition made by the adopter prior to the adoption
order makes no provision for the adopted child, the adopted child may apply to the court to vary
the disposition by ordering such provision as the court thinks equitable to be made for him or her.
Under S.55 provides the right of disclosure, it provides that the child has a right to be informed
about the identity of his natural parents by 18 years of age.

Accordingly, under the Succession Act, S 87 provides that in absence of any intimation to the
contrary in the will, "child", "son" or "daughter" or any word which expresses those relationships
is to be understood as including an illegitimate child and an adopted child.
Procedure to be followed in adoption cases
Forum
S. 44 (1) of the Children Act, it is provided that an application for an adoption order may be made;

a). To a chief magistrate's court within the jurisdiction of which the applicant or the child resides
where both the child and the applicant are citizens of Uganda;
b). To the High court where the child or the applicant is not a citizen of Uganda and the court
may, subject to this Act, grant the application.

Under S. 49 (I) of the Children Act, the Chief Justice may by statutory instrument make rules
regarding all matters under this Part and the procedure to be followed by the court in adoption
proceeding.
Accordingly, the procedure to be follows in adoption cases is set out in the children (Adoption of
children) rules S1 59-1)

Rules 3 (1) of the children (Adoption) rules (herein after rules) provides that when the petitioner
or petitioners and the child are all Uganda citizens, the application for an adoption order shall be
made by petition to the chief magistrate’s court, Forum A in the schedule to the schedule to the
rules.

However, under rule 3(2) of the aforesaid rules, when a petitioner or the child is a non-Uganda
citizen the application for an adoption order is made to the High Court in forum B in the schedule
to rules.

R 7 of the Rules requires the statements contained in the petition to be verified by an affidavit to
which shall be annexed certificates and other documents proper for proving the allegations in the
petition.
The petitioner (s) present the petition ex parte in person or by advocate to a judge or chief
magistrate sitting in chambers; and the judge or the chief magistrate gives directions as to service,
appointment of a guardian as item, or any further consents as may be required and necessary
under R 3 (3) of the Rules.
Under R 8 (1) of the Rules, it is required that any consent required by the Act to be given should
be in Form C in the Schedule to the Rules, except that a consent required by the Act from a child
over the age of fourteen years should be given in Form D in the Schedule and such consents
should be sworn before a commissioner for oaths and shall be submitted together with the
affidavit of verification with the petition or accompanied by a separate affidavit of verification
under sub-rule(2) of rule 8.

Under Rule 3 (4), it is required that the probation and social welfare officer under whose
supervision the child has been fostered by the petitioner be present at the ex parte hearing and
attends subsequent proceedings, as directed by the court, in order to advise the court.

It should be noted further that under Rule 4 of the Rules, the Civil Procedure Rules and practice
apply to adoption matters as far as is practicable.
Under Rule 5 (I) of the Rules, the petition should be served on
a). the parent of the child, if any; or if one
b). the guardian or guardians of the child; or if none
c). the person or persons having the actual custody, of the child; if none
d). the person or persons liable to contribute to the support of the child; and
e). The child, if of the age of fourteen years or above.

The judge or chief magistrate may dispense with the service on any of those persons listed in sub
rule (I) of this rule and may order the petition to be served on any other person or persons under
Rule 5 (2) above.

R 6 (I) of the Rules requires every petition, notice or document, unless the judge or chief
magistrate otherwise directs, be served by an officer of the court, by delivering or tendering a copy
of it signed by the registrar or the chief magistrate and sealed with the seal of the court to the
person to be served.

The service of every petition should be verified by affidavit, unless the judge or chief magistrate
directs otherwise under R 6 (2).

Rule 11 provides that the guardian ad litem or the persons whose consent is required by the Act
may file an affidavit in response to the petition.

A hearing is fixed under R 12 when all documents have been filed and served to the satisfaction
the court and give notice to all parties in Form F set out in the Schedule to thee Rules.
The hearing under R 13 is in camera and does not interpose any other matters during the hearing
of the adoption proceedings.

PARENTAGE
An order for parentage can be asked for at any time before the child reaches the age of 18years.
The question of parentage is covered in part IX of Children Act (hereinafter CA).
Who can apply for parentage?
S.67 of the Children's Act provides for persons who can apply to court to establish parentage and
these are
● The mother
● Father
● Guardian and
● The child himself or herself through a next of friend.
NB: In law, a child does not have capacity to bring an action in court on his own or in his own
names. He must use an adult person referred to as next of friend... This person can be a guardian,
parent/relative.

What is the procedure to be followed in making an application for percentage?

This is under S. 67 of the CA. It states inter alia, that the application for a declaration of parentage
is by complaint on oath to a family and children court having jurisdiction in the place where the
applicant resides for or summons to be served on (a) the man alleged to be the father of the child;
or (b) the woman alleged to be the mother of the child under s.67 CA.

From the wording of the above provision, the forum in which such application is made is the
family and Children Court as established under the Family and Children Act.

When can an application for percentage be made?

Under S.68 CA, the application for declaration of parentage can be made to court;
a). at any time before the child attains eighteen years of age
b). within three years after the death of the alleged father or mother;
c). within three years after the death of the alleged father or mother;
d). Under S68 (2) CA, with leave of the family and children court, an application for a
declaration of parentage may be made at any time after the three years in subsection (I)(c).
Accordingly, under s.67(3), in exercising its discretion under subsection (2), the court shall
primarily consider (a) the welfare of the child; (b) the time of knowledge of the alleged father or
mother or of birth of the child as the case may be, by the applicant; (c) the conduct of the alleged
father or mother where he or she knew of the birth at the child alleged to be his or her child, or
his or her conduct towards any other person having the custody or control of the child.

An applicant for a declaration of parentage may be made whether the child or the alleged father or
mother is in or outside Uganda under S. 67 (4) of the CA.

Under S. 69 (1) of the Act, the family and children court will upon application issue a summons to
the father or mother of the child to appear before the court on a day named in the summons.

On the appearance of the person summoned, or on proof that the. summons was duly served on
him or her or left at his or her place of abode seven days or more before the hearing, the court
hears the evidence of the applicant and also hears any evidence tendered by or on behalf of the
alleged father or mother under S. 69 (2) of the Act.

Consequently, it the evidence of the applicant is corroborated in some material particular by other
evidence to the satisfaction of the court, the court may adjudge the person summoned to be the
mother or father of the child, under S.69(3) of the Act.

Evidence of parentage
The Children Act lays down instances of prima facie evidence of parentage. The fact that
these circumstances are prima facie; they can be rebutted by some evidence thereby making
it inconclusive.

Accordingly, under S.71 (1) of the Act, where the name of the father or the 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 is the father of the child or that the person named as
the mother is the mother of the child.

In addition, under S. 71 (2) of the Act, an instrument signed by the mother of a child and by any
person acknowledge that he is the father of the child, and an instrument signed by the father of a
child and by any person acknowledging that she is the mother of the child shall (a) if the
instrument is executed as a deed or (b) if the instrument is signed jointly or severally by each of
those persons in the presence of a witness, be prima facie evidence that the person named as the
father is the father of the child or that the person named as the mother is the mother of the child.

Thirdly, 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
under S. 71 (3) of the Act. Suffice to state, that a declaration of parentage by the court under this
Part shall, for all purposes, be conclusive proof of parentage under S.71 (4) of the Act.
Equally under S. 71 (5), an order made by a competent court outside Uganda in affiliation or
similar proceedings, declaring or having the effect of declaring a person to be the father are
mother of a child is prima facie evidence that the person mentioned in that order is the father or
the mother of the child.
Likewise; under S. 71 (6), a reference, express or implied in a will written or oral, of any person to
a child , as his or her son or daughter, is prima facie evidence that that person is the father or
mother of the child.

Further, a statement, written or oral, by a deceased person confided to a person in a pas it ion of
authority indicating that the deceased is or was the father or the mother of particular a child is
prima facie evidence that the deceased person was the father or the mother of the child under S.
71 (7) of the Act.
A person in a position of authority" as used in S. 71 (7) above means a person holding a position
in society carrying responsibility in matters of succession, administration of justice or law
enforcement and includes a minister of religion and any person placed in such a position of
interest in the welfare of the child either because of family relationship or by appointment as a
guardian or foster parent by the deceased. This the meaning ascribed to the above phrase under S.
71 (8) of the Act.

NB. As already noted at the beginning, it is only prima facie evidence therefore not conclusive
prove parentage. Court should be satisfied that the evidence has been collaborated in some
material aspects as envisaged under S.69(3) of the Act before a person can be adjudged father or
mother of a child

In this respect, S. 69 (4) of the Act empowers court, on the application of any party to the
proceedings or on its own motion, to make an order, upon such terms as may be just, requiring
any person to give any evidence which may be material to the question, including a blood sample
for the purpose of blood tests.

It should be noted that under subsection (5) of Section 69 of the Act, the person sought to be
tested must be made a party to the proceedings.

Burden of proof in parentage proceedings

Under S.70, the burden to page shall lie on the person alleging it.
Thus, evidence or an admission of sexual relationship between the father and mother is admissible
in proof of parentage. This has been held to corroborate the evidence. Thus in CT Vs MW
among others, the child's father admitted sexual intercourse but that it was four months before she
conceived. Court found that evidence of admission of previous sexual intercourse was a material
fact. Court notes that corroboration does not mean to rely on the date of conception.

In Moore (1947) KB 31 court stated that where there is evidence of along period over a time of
conception and there's no evidence that she was involved other men, this should collaborate the
evidence that she was involved with other men, this should collaborate the evidence of the
applicant.

In Mbwambo v Wandoa petro Aaron (1966) EA 24 evidence of collaboration was found in a

letter to the applicant expressing in endearing terms saying he still remembered "that night". The
respondent sought a declaration that the applicant was the father of the child born on Feb 4,
1964, it was held on her own evidence that the respondent was a woman of loose character and
apparently of considerable sexual appetite. That the appellant had sexual intercourse with her at
the material time though he did not infer that he was the only person who had sexual intercourse
with her and therefore the appellant was adjudged to be the putative father of the child. In
disposing off the appeal court held as follows;
1. the fact that the respondent appeared to have loose morals was reason for the magistrate
to treat her evidence with the greatest caution but it could not in the absence of evidence
to support the allegation that the respondent was associating with other men.
2. S.5(1) of the affiliation ordinance did not require corroboration of any particular aspect of
the respondent's evidence but only that it corroborated in same material particular and
there could be no more material than the fact of sexual intercourse between the parties at
the relevant time.
3. The court was not required to find as a fact that the applicant was the father of the child
but only that he was the putative father.
4. the letter from the applicant expressed in endearing terms and saying that he still
remembered 'that night' undoubtedly 'tended' to prove that he was the father 'of the child.

5. 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’s not correct to say that it must be incapable of any other interpretation. The appeal was
therefore dismissed.

Under S.69 (4) court has beneficially empowered to make an order for blood tests.
In Mpirirwe v Ninsambimana court held that the evidence of similarity in physical features
between a child and the alleged parents is admissible to prove paternity even if the evidence
adduced is not conclusive, That the failure by the defendant to adduce evidence of genetical,
biological and physical features similar to those of the deceased made court to fail to presume that
the alleged twins were fathered by the deceased.

In Paretonia v Nsibimana (1994) 4 KALR the question of resemblance was brought up and
court held that the evidence of similarity between a parent and a child is admissible but not
conclusive.

Under S.74 an appeal can be lodged against the order.

Under S.75 the declaration of parentage can be revoked for sufficient cause. It's a wide term to be
different from the nature of evidence.

In Preston v Preston, the husband was absent from the UK from [945-46 (360 days), The wife
gave birth to a normal child and the husband brought a petition for dissolution of marriage on
grounds of her adultery, the charge being based on the fact that the period of360 days elapsed
from which it was alleged that the child must have been conceived in adultery. Court held that
though a finding of adultery against the wife might bare the effect of bastarding her child, that did
not mean that a degree of proof of adultery was required such as in scientific inquiry would justify
the condition that such an event was possible. No higher proof was demanded that the fact should
be established beyond reasonable doubt and that in the present case all the court could demand
was that it should be established beyond reasonable doubt that a child born 360 days after
particular coitus could not be a result of that coitus.
NB. This standard of proof is not applicable to Uganda because in civil cases it does not arise
unlike criminal cases.
In B " Band E (8 intervening) (1969)3 ALLER II 06, the issue was whether a blood test should be
taken to determine who the father was? Hand W were married and for 6 years were together and
gave to birth a child named as the Hubby's and filled in certificate Hub as daddy and mum, later,
W deserted H and got married to the co-respondent and in asking for custody respectively and in
asking it custody of the child, the woman alleged that child was the respondent's not the former
husband's issue. In the process arose the issue whether the husband could be compelled to submit
to a blood test, the child a long with tic respondent in determining the paternity of the child.
Court held: 1 court was of the view that owing to the circumstances under which H lived with W
in wedlock, with no suspicion of her cheating, looking after the child since then and even being
asked by W in a letter when she was deserting him to look after the child (his son) carefully and his
fondness to the child as its natural father, it was unreasonable for him to submit to a blood test.
2) That all such a test would do would be not establishing that the respondent was the father but
70% chance of it.
3) That the presumption of legitimacy would hold for the father (since the child was born in
wedlock, if he refused to submit to the 'stupid' blood test and therefore order of custody would
not be granted).
Effects of parentage
The effect of a declaration of parentage is espoused in section 72 of the Children Act. it puts the
child in a lawful position as if born in legal wedlock. Accordingly, S.72 (1) of the CA provides that
declaration of parentage by a court have the effect of establishing a blood relationship of father
and child or of mother and child, and accordingly, the child shall be in the same legal position
towards the father or the mother as a child actually born in lawful wedlock.
However, under S. 72 (2) thereof, a declaration of parentage does not by itself confer rights of
custody of the child upon the declared father or mother.

CUSTODY OF CHILDREN
Definition of custody
This concerns the legal rules governing the right of children regarding who to leave with. The
general rule s that both parents have a right to be with their children and bring them up as under
Art 31 (4).

However, where parents leave apart, unmarried or divorced or one or both parents are dead, the
question s who is entitled to the custody of child?
The guiding principle is the child's welfare is paramount as stated under S. 3 of the Children Act
It vides that the welfare principles and the children's rights set out in the first schedule to this Act
shall be the guiding principles in making any decision based on this Act. These inter alia include;
Time being of the essence, the ascertainable wishes and feelings of the child concerned considered
in the light of his or her age and understanding; the ~hj15ical, emotional and educational needs;
the likely effects of any changes in the child's circumstances; the child's age, sex, background and
any other circumstances relevant in the matter; any harm that the child has suffered or is at the risk
of suffering; where relevant, the capacity of the child's parents, guardians or others involved in the
care of the child in meeting his or her.
Suffice to note that the term welfare is not defined by the Act; however, the Act describes
considerations to be put into account in applying the welfare principle. Further solace can be
sought in case law.

In Nakaggwa v Kiggundu (1978) HCB 310, Court recognized the welfare of the child as the
paramount consideration in custody proceedings and held as follows;
1. As both the applicant and respondent each seriously wanted the custody of the could, this
 was a proper case where court would exercise powers as a court of cares and protection for
minors in accordance with the I.A and decide on whom would in the circumstance with
the custody.
2. That in determining who should have the custody, its well established that the paramount c
consideration is the welfare of the child, such factors as the fathers natural and superior
rights to the custody over the child as against the mothers, the claims of other relatives and
the conduct of the parties among orders should be taken into account in determining the
welfare of the child.
3. That the term welfare though in capable of exact definition; means in that all
circumstances affecting the well being and up-bringing of the child have to be taken into
account and the court has to do what a wise parent acting for the interest of the child
ought to do ‘(court used the definition in Lough v word 2 ALLER 338)

In Karanu v Karanu (1968) E.A 36, on an exparte application, the High Court grated the
husband the custody pending a suit of the children and refused to alter the order. The children
were a boy and girl 7 and 8 years respectively. There was evidence that they were sickly and needed
constant attention, on appeal Court of Appeal held that the judge had miss directed himself and
not referring to the presumption that young children should be with the mother- custody of
children would be given to the mother. (Appeal allowed)

Note, this decision was not laying down a general principle to be applied to every custody case
involving children of tender years, but was decided this way for special circumstances and
therefore applies subject to the prevailing circumstances.

Similarly in George Nyakairu v Nyakairu (1979) HCB 261,

Court held 1. That in applying the welfare people, court had to consider other ancillary
circumstances e.g. such matter as; who of the spouse was to blame for the break up of the
marriage; who of the spouse was more financially equipped to look better after the interest of the
children and which of the spouse could provide a more comfortable home.

2. Citing Hofman V Hofman [1970] EA 100, court held further that although the father’s
superior financial position over the mother was irrelevant in custody cases, it could not be
 ignored, if it could be than the mother whose financial inferiority would stand in her way;
the overriding factor is the interests of the child and if the father could use them to
enhance the welfare of the child; it could be taken into considerations.
3. Court held also that since the parties separated, the children had been living with the father
and there was nothing on record to show that the child's physical and moral welfare had
living with the father apart from the mother. In the circumstances, it would not be in the
best interest of the welfare of the children to have them shifted from the environment they
had been living with.
4. That immorality on the part of the father was not sufficient justifications for interfering
with the common law right to the custody of children unless such immorality was very
fragrant or was coupled with other habits infamous to the children. That similarly cruelty
could be a good ground for interfering as it extended to children as well.
In Musinga v Musinga, court held that since the child was of tender years, the mother had
proved to be brought up as Ugandan; the custody must shift to the father, if the mother lives
Uganda at any time.

S. 4 of the Act provides for the child's right to stay with parents and S. 5 places upon parents a
duty to duty to maintain the child, The other parent has the right of visitation where there's
separation) Under S. 4(2) recognizes the right of the parent to reasonable access to the child. In
Habyarimana v Habyarimana (1980) HCB 139, court held inter alia that the respondent
(father) as a parent having a right of access to his child would be entitled to visit the children as
often as he pleased provided that such visits do not and only interfere with the well being of the
children and where necessary the children would be free to visit the respondent

10 -., C::>.-
In Teopista Kayongo V Richard Sekiyiva (1978) HCB 240, court held that where the custody
of the children is taken a way from the mother, mother should be free to visit her child as often as
he pleases.

S.6 (1) of the Act, every parent has parental responsibility for his or her child and under
subsection (2) thereof, where the natural parents of a child are deceased, parental responsibility
may be passed on to relatives of either parent, or by way of a care order, to the warden of an
approved home, or to a foster parent A parent under S 1 (n) of the Act means “parent” means the
biological mother or father or adoptive mother or father of a child

Parental responsibility is defined under S. I (0) of the Children Act to mean all rights, duties,
powers, responsibilities and authority which by law a parent of a child has in relation to the child.
The order of granting the custody can be made in the same proceedings for a declaration of pa as
under S. 73(1) CA and under subsection (2), the court may, at any time, revoke the grant of
custody to one person and make the grant to another person, institution or organization. In
reaching its decision under subsection (I) or (2), the court shall primarily consider the welfare of
the child.

Under S.85 of the Act, where the court is satisfied on information from a probation and social
welfare officer or an official of a local government council that the parent who has custody of the
child is willfully neglecting or mistreating the child, custody shall be granted to the other parent.

In Kalisa v Kalisa (1974) HCB 108, following an order with separation in 1972 in favour of the
petitioner with custody of 2 children (6½ boy) and (3½ girl) on condition that they should not be
removed from court's jurisdiction the petitioner sought the order to be varied because she had
found employment in Nairobi and found not easy to transmit money easily to Uganda for up keep
since their father had failed to meet his obligation, but he stated that he had not had access to his
funds then. Court held that the court would not vary its order merely to suit the convenience of
the petitioner. That by entrusting the children to the custody of her mother as she had done and
going a wary to Nairobi, the petitioner had by her conduct shown some irresponsibility towards
the children since it was not impossible for her to find/ obtain employment in Uganda. To do so
would a mount to depriving the court of the power to act in the best interest of the children.

In Williamson v Williamson (1993) 4 KALR 160, in dealing with the issue whether an order
placing custody of children in the hands of their mother would be set a side because she was
paranoid, court held that the paramount consideration in custody proceedings is the welfare of the
child; court invariably considers the conduct of the parties, their wishes and other means. Since the
evidence that the mother of the infants was paranoid had not been rebutted, the custody of the
children should go to the father.
In Hofman v Hofman (1970) EA 100 financial superiority was held to be relevant to show that
the child could be supported in maintenance. However court observed that the financial position
perse won't override i.e. it won't make one a better parent. The welfare of the child is the
paramount consideration. The father's money can be given to mother's support the children.

In Wambwa v Okumu (1970) EA 578 court held; that the customary law did not take into
account the welfare of the infant and that in absence of exceptional circumstances, the 4 year old
girl should be looked after by its mother

In Karanu v Njeru (1968) EA 361 where in an appeal to the High Court, evidence as to Kikuyu
custom by which the parties had been married was adduced, which was that the children would by
custom go to the father because he had not demanded bride price. Court held that this custom
was not repugnant to justice and morality and not inconsistent with only written law and the court
must therefore be guided by it in spite of its possible effect on the children.

NB. Such may not stand in-light of the modern flexible approach taken by court the moment it
would not further the welfare of the child.

In Re GM (infant) [1957] EA 714 as regards the competing interests between strangers despite the
defacla custody by the stranger. The brief facts are that the deceased's brother applied for custody
of the female child who had been living with the well to do Nandi woman. The parents had died.
The applicant claimed that by native law and custom, as the brother of the deceased, had the right
of custody against all strangers favoured them and that the applicant not being a parent but only a
guardian did not possess the right of a parent. Court held that under English law, the applicant
would be held to have a legal right to the custody of the child as against all strangers. Application
granted.
NB. This position is not applicable necessarily in Uganda, because court is guided by the welfare
principle as laid down in the Act and as interpreted by case law in Uganda.

MAINTENANCE
Under Art 34 (I) of the Constitution, it is provided that subject to laws enacted in their best
interests, children shall have the right to know and be cared for by their parents or those entitled
by law to bring them up. This is fortified further under S.5 (I) which states that it shall be the duty
of a parent, guardian or any person having custody of a child to maintain that child and, in
particular, that duty gives a child the right to education and guidance; immunization; adequate diet;
clothing; shelter; and medical attention. In addition, under S 76 (8) of the Act, maintenance
includes feeding, clothing, education and the general welfare of the child.

S. 6 (I) of the Act also requires every parent to have parental responsibility for his or her child and
where the natural parents of a child are deceased, parental responsibility may be passed on to
relatives of either parent, or by way of a care order, to the warden of an approved home, or to a
foster parent under S. 6 (2) of Children Act

Who can make the application for maintenance? Under

S.76 the following persons can apply for maintenance;
a). The mother of the child;
b). The father of the child; or
c). The guardian of the child may make an application for a maintenance order against the father
or mother of the child
Likewise, under S.76 (2) a child in respect of whom a declaration of parentage has been made may
also make an application through a next of friend for a maintenance order. Under Order 32 rule 1
of the Civil Procedure Rules, S 1-71-1, it is required that every suit by a minor shall be instituted in
his or her name by a person who in the suit shall be called the next friend of the minor. Under
sub-rule (2) thereof, before the name of any person shall be used in any action as next friend of
any infant where the suit is instituted by an advocate, which person shall sign a written authority to
the advocate for that purpose, and the authority shall be presented together with the plaint and
shall be filed on the record

When can an application for maintenance he made?

Under S.76 (3) of the Act. an application for a maintenance order may be made
a). During a subsisting marriage;
b). During proceedings for divorce, separation or nullity of marriage;
c). During separation;
 d). During proceedings for declaration of parentage;
e). After a declaration of parentage has been made.

Moreover, under S 76 (4) the application may be made at any time during pregnancy or before the
child attains eighteen years of age.
Procedure, forum and documents required in applying for maintenance
Under S 76 (5) an application for a maintenance order shall be made by complaint on oath to a
family and children court having jurisdiction in the place where the applicant resides, and the
summons shall be served on the father of the child; or the mother of the child.

The court shall issue a summons to the father or mother of the child to appear before the court
on a day named in the summons under S 76 (6). On the appearance of the person summoned or
on proof that the summons was duly served on him or her, seven days or more before the hearing,
the court shall hear the evidence of the applicant and shall also hear any evidence tendered by or
on behalf of the father or mother; and the court may then, having regard to all the circumstances
of the case, proceed to make an order against the father or mother for the payment to the
applicant of (a) a monthly sum of money as may be determined by the court, having regard to the
circumstances of the case and to the financial means of the father or mother, for the maintenance
of the child; (b) the funeral expenses of the child if the child has died before the making of the
order; and (c) the costs incurred in obtaining the order under S 76 (7).

S76 (9) If the court thinks fit. It may, in place of a monthly payment, order that a lump sum
determined by the court be paid into court and that the sum shall be expended on the
maintenance of the child.

Failure to pay can result into a warrant to attain earnings or levy the distress for the recovery of
the maintenance money. Under S 77 of the Act, if at any time after the expiration of one month
from the making of a maintenance order, it is made to appear to a magistrate on oath that any sum
to be paid under the order has not been paid, the magistrate may, by warrant signed by him or her,
cause the person against whom the order was made to be brought before him or her; and if that
person neglects or refuses to pay the sum due from him or her under the order, the magistrate
may, by warrant signed by him or her direct;
 a). That an attachment of earnings be made; or
b). that the sum due, together with any costs incurred, be recovered by distress and sale or
redistribution of the property of the father or mother unless he or she gives sufficient
security by way of recognizance or otherwise to the satisfaction of the court for his or her
appearance before the court on a day appointed for the return of the warrant of distress, but
not more than seven days from the taking of the security.

Enforcement and variation of maintenance orders

Under S 78 (I) of the Act, on the application at any time by the applicant for the maintenance
order or by the person against whom the maintenance order is made, the court may, after inquiring
into the circumstances, make an order either increasing or decreasing the amount of money
previously ordered to be paid under the order.

NB: Under S.78 a maintenance order can be made and enforced against the estate of the deceased
person. Under section 37 of the Succession Act, it is stated that notwithstanding section 36
(relating to making of a will), where a person, by his or her will, disposes of all his or her property
without making reasonable provision for the maintenance of his or her dependent relatives,
section 38 shall apply. And section 38 of the Succession Act deals with the power of the court to
order payment out of the estate of the deceased for maintenance of dependents.

Under S78 (2) an order for maintenance against a father or mother shall cease to have effect on
custody of the child being granted to that father or mother or other person in his or her place by
the court.

Under S78 (3), an order for maintenance may be made and enforced against the estate of a
deceased person who has been declared the father or mother of the child under a declaration of
parentage.

Under S78 (4) where a declaration of parentage has been made, an order for recovery of arrears of
expenses incurred on the maintenance of a child may be made even after the death of the child.
Under 79 the money can be paid to applicant or custodian. Accordingly, under S. 79 (I), all money
payable under a maintenance order 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. And under
subsection (2) of section 79, 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.

Under 80 (I) of the Act, whenever a maintenance order is made against the father or mother, a
court may, at the time of making the order or from time to time thereafter, on being satisfied that
the applicant is not a fit and proper person to have custody of the child; or is dead, or has become
of unsound mind or is in prison, appoint a person who is willing to have custody of the child to be
the custodian of the child. This person is referred to as custodian.

The appointment of a custodian may be made on the application of a probation and social welfare
officer or of the person having custody of the child or of the person against whom the
maintenance order is made under S. 78 (2).

The appointment of a custodian may be revoked and another person appointed to have custody of
the child under S. 78 (3). Where any order of appointment or of revocation of a custodian is made,
the court may also order the child to be delivered to the person appointed to have custody of the
child under S. 78 (5).

Under S. 78 (4) a custodian has power to apply for the recovery of all payments in arrears
becoming due under a maintenance order as any other applicant would have been entitled to do.

If a child in respect of whom a maintenance order subsists is wrongfully removed from the person
in whose custody he or she is, the court may, on the application of the custodian, make an order
that the custody of the child be recommitted to the applicant under S. 78 (6).
It should be noted that under S. 78 (7) any person who contravenes an order made under
subsection (6) commits an offence and shall be dealt with in accordance with this Act.
Equally, under S 81 a person in whose custody a child is commits an offence if he or she
misapplies any money paid for the maintenance of the child, and the grant of custody may be
varied in the best interests of the child

Cessation of order
Under 82 a maintenance order ceases to have any force or validity on the child attaining eighteen
years.
Read-Supervision orders 19 and 21 (goods)
● Care orders S.7
● Foster care placements under S.43

Role of the community in the supervision of children

Under S.10 of the Act it's a duty of every local government council to safeguard the welfare of
children and to designate a member responsible for children.
Under S.11 provides that every member of the community has a duty to report where the rights of
a child are being infringed.
● reporting any infringement of the children's rights.
● provision of accommodation etc sees what is contained in the above sections.

GUARDIANSHIP UNDER S.46 (CA)

Guardianship is not defined under the Children Act but a guardian is defined under S I (k) of the
Act to mean a person having parental responsibility for a Child. In determining whether to grant
or reject an application for guardianship, the court is guided by the guiding principles set out in the
first schedule educational Children Act (S.3 thereof). The welfare of the child is to be treated as the
paramount consideration as espoused in Halsbury's Laws of England, 3rd edition paragraph 460.

Suffice to note that there is no law expressly dealing with guardianship like adoption and custody
adequately catered for under the Children Act. However, parties always invoke sections 98 of the-
Civil Procedure Act, Sections 14 (1) and 33 of the Judicature Act, and Order 52 rules (1) and (3)
the CPR. Invoking generally the inherent unlimited power conferred upon High Court to grant
any remedy.
In Re Kagume (infant) [1996] HCB 61. The applicant filed a notice of motion and supported it by
with an affidavit sworn by the applicant seeking an order of guardianship of the infant Perez on
the following grounds 1) that the applicant was the natural mother of the infant, 2) that she was
possessed with the capacity and willingness to look after and maintain the infant and 3) that it
would be in the best interest of the child if she was given guardianship.

Court held 1. On whether the applicant qualified for an order of guardianship, that regard must be
heard to the general rule governing guardianship. The ultimate reference point must of course be
found in statutory provisions on our statutory provisions of our statute books (Judicature Statute
(now Act) and Child statute (now Act)

2) That when S.5 (1), 6 and 7 of the children statute 1996 are read together with S.16 J.S
(Judicature Statute now Act) 1996, it's clear that the primary duty of looking after the infant is
vested in the parents of the children of which the applicant forms part. The applicant therefore
qualifies to make the application as a parent of the infant in question.

3) That in considering guardianship cases, court should consider and weigh all the circumstances
that are of any that are of any relevance and in so doing the welfare of the child is to be treated as
the first and paramount consideration.

4) That the Children Statute 1996 lays down the welfare principles and children's rights. Section 1
of the first schedule provides that whenever the court determines any question with respect to
upbringing of a child, or the administration of a child, or the administration of a child’s
property/application of any income arising from it, the child’s welfare shall be paramount
consideration. The infant in question is clearly a child of very tender years and it is therefore in its
best interest for his mother to be appointed guardian. The applicant is on her part willing and able
to look after the infant who she has been looking after since she was born.
5) That although the court has not been shown the financial means with which the applicant
hopes to cater for the infants welfare, nevertheless, court is satisfied that she will uses anything
within her means and disposal to ensure that the infant’s physical, emotional needs are fully
catered for and met.
In Yasin v Mohamed (1973) EA 370, the plaintiff applied under Guardianship Act of Kenya for
the custody of the child of marriage. The defendant applied to stay the application on ground that
the parties had agreed to refer guardianship disputes to the Ismailia Provincial Council and that by
analogy with arbitration proceedings the application should be stayed for a decision of the council.
The plaintiff contended that the guardianship of infants Act conferred exclusive jurisdiction on the
High Court. Court held that the High Court has jurisdiction overall infants in Kenya.

NB. This case can be applied contextually in Uganda as persuasive authority for the submission
that the High Court of Uganda has unlimited jurisdiction to handle such applications.
Termination of guardianship
In FVF (1902)1ch 688, a testator who died in 1896 by his will appointed his sister guardian and his
infant daughter then aged eleven. The testator was a protestant and the infant was brought up in
that faith. In 1900 the sister from conscientious motives became a roman catholic. Court held that
under the circumstances, it was for the benefit of the infant that the testator's sister should be
removed from her guardianship.
NB. Whether such arguments can be used to vary or revoke or terminated a guardianship order
is only a question of fact dependent upon particular set of circumstances and thus should not
apply the above case generally. If is Islam and the child is a Muslim it may suffice, but
automatically as such Manda v Ahmed (1957) EA 673; in an application by a paternal grand
mother of a 4 year old boy for guardianship and custody from the divorced mother who had
been living with the boy ever since, yet under Sharia law-applicant was entitled; However, S.D of
ordinance required court to be guided by welfare principle. It was held that the welfare of the
child can't be and is not intended to be exclusively confined to the matter of material welfare as
opposed to psychological welfare and accordingly it would be for the welfare of the child at
present to remain with his mother. Application dismissed
● Re Katende and Namakula App. No. 29111993
● Adomati v Okware adoption cause NoA/94
In Re Ayla Mayanja (An infant) Misc Application No.20/2003, (the case related to Guardianship,
custody and maintenance). This was an application for guardianship under Art. 139(1), section
1,2,3,4,5 and first schedule of the children Act cap 59, section 15,24 and 40 of judicature Act, S.98
CPA and order 52 r I and 3 CPR. The applicant and the respondent (the biological father of the
child) were parties respectively. The applicant was the biological mother a Belgian national who
cohabited with Joseph Mayanja (respondent) a Ugandan and during their stay they produced a
child, the subject of the application. They had never gone through any form of marriage. When
the relationship became strained because of the respondent's acts of cruelty to the applicant which
were physical and psychological, the two separated and each lived independently of the other in
Uganda. In support of the application, the applicant produced the birth certificate of the child, her
average monthly expenditure on the child and the report, of probation officer recommending the
applicant as a fit, responsible and deserving person to be granted the guardianship of the child.
The child was one year old according to the affidavit of the applicant and therefore a child under
S.2 of children statute (now Act) which defines a child as a person below the age of 18 years. The
applicant was seeking an order for guardianship, under S.l of children Act, a guardian means a
person having parental responsibility for a child and means all rights, duties; powers,
responsibilities and authority which by law a parent of a child has in relation to the child.
Justice v A.R. Rwamisazi - Kagaba held inter alia, that in all matters relating with the child, the
paramount considerations to be addressed and applied is the welfare of the child; which is spelt
out in S.4 of cap 59 which is a blanket expression that embraces the rights, facilities and
opportunities which are God- bestowed upon a child as a favour by some person or authority.
They must not be taken a way from the child except under the law where the law may affect such
rights, article 34 (1) provides that such laws shall be subject to the best interest of the child and
these are spelt out in paragraphs 5, 6 and the 1st schedule to the children Act. The above rights are
derived from the constitution (Articles 30, 31(4) (5), 34(1), (2) and (3) of Constitution). That as no
law can override the constitution, so no law can be enforced which injures the children's right
which are enshrined in constitution (Art.2 (2).The welfare people has been considered and applied
in cases of this court and other jurisdictions, e.g. S (DD) v S (DJ) (1997) JALLER 656 (CA), Re K
(Minors) (children care and control) (1997) JALLER 577

That the applicant was a Belgian national but the child and the father were Ugandans. That
regardless of the nationality of the applicant, the court was vested with the jurisdiction to grant
guardianship to the foreign national if it is the best interest of the child to do so. But the applicant
was the biological parent of the child even though she was a foreign national. That the court had
held in several cases that an order of guardianship of the child can be granted to a foreigner
(foreign national) provided it is in the best interest and welfare of the child to do so. In the matter
of Sarah Namukasa (infant) Misc Applicant No 78/91, in the matter of Dr. Cindy Hal/rand
(applicant) Misc application 17/2003. That similarly there was no bar to granting the guardianship
of the child to its biological parent where the interest and welfare of the child demand that the
order should b granted.

In Re Prossy Nalunga (an infant) Misc application 500/97, court stated that guardianship is a
process by which court by an order appoints a person to be responsible for an infant.
In Re Okot Lawrence/Kedea and Beatrice I Keda (infant) Misc cause No229/93, Kintu J stated, it
is trite law that the guiding principle in cases of guardianship is the welfare of the child. That
whatever decision is taken by the court, it must be in the interest of the child.

Procedure, forum and documents

Forum
The forum is the High Court under Art 139 of the Constitution, S. 14,33 of the Judicature Act,
section 98 of the Civil Procedure Act, that confers upon the court unlimited jurisdiction in civil
matters.

Procedure
The procedure is by motion on notice under Order 52 rules (1) and (3)of the Civil Procedure
Rules which provides inter alia that except as otherwise expressly provided in these rules, all
applications shall be by motion on notice supported by affidavit and shall be heard n open court.
NB. The fact that the CPR does not expressly provide for the procedure to be followed in
guardianship proceedings, resort is had to the motion on notice because it is not provided
expressly the contrary. This motion and affidavit is served on the respondents and court will fix a
day for hearing the application.
Documents include Notice of motion, affidavit in support of the motion, summary of evidence,
List of witness’s e.t.c.
 LAW OF SUCCESSION
The law of succession deals with the devolution and transmission of the estate of deceased person
its process through which one becomes entitled to the property of the deceased by operation of
law or will The law applicable in succession matters entails; The Constitution of the Republic of
Uganda, 1995, Succession Act Cap 162 (hereinafter S.A), The Administrator General's Act Cap
157, The Administration of Estates (small estates) (special provisions) Act. Cap 156, The Trust
Corporations (probate and administration) Act Cap 163: The Administration of estates of persons
of unsound mind act. Cap 155, and the statutory instruments made there under e.t.c.
 BASIC TERMS
1. Testate-Succession. This is where a person dies living a will that disposes off all his
estate/property
2. Intestate succession is the opposite of testate succession. It is where a person dies without
making a will disposing off his/her property. A person can die wholly or partially intestate
when he leaves a will only disposing off part of his estate. In short, it is the process by
which the property of a person who has died without a will passes on others according to
the states descent and distribution statutes.
3. Probate means the grant by a court of competent jurisdiction authorizing the executor
named in the testator's last will to administer the testator's estate under S.2 (s) of
Succession Act.
4. Administration means a person appointed by a court to administer the estate of a deceased
person when there is no executor under S. 2 (a) of the Succession Act.
5. Letters of administration means the grant by a court of competent jurisdiction authorizing
the applicant named in the application to administer the intestate's estate. This always
happens when a person applies to court to administer the estate of a person who died
intestate and court appoints him or her administrator thereof.
6. Executor means a person appointed in the last will of a deceased person to execute the
terms of the will under S. 2 (h). If the person so appointed is a female she is commonly
referred to as executrix and if it is a male person, he is referred to as executor.
Domicile
This literally means dwelling or residence. It therefore refers to habitation in a place with intention
of remaining there permanently unless something occurs to alter that intention. It can be domicile
by birth marriage or choice.

Under SA (I) S.A succession to a deceased person's immovable property in Uganda is regulated by
the law of Uganda; wherever that person may have had his domicile at his time of his death.

Under SA (2) S.A succession to a deceased persons' movable party is regulated by the law of the
country in which he had domicile at the time of his death.

Under S.4 (3) provides a case of intestate succession were the deceased person is deemed to have
had his domicile in Uganda if;
 a). For a period of not less than two years, preceding his /her death that person was ordinary
resident in Uganda.
b). If he/she was survived by a spouse or child who was at the time of his/her death ordinarily
resident in Uganda
NB the issue of domicile only arises in case of movable party but can apply wholly in cases of
intestacy.
TESTATE SUCCESSION

The essence of testate succession is a will. A will is the expression by a person of his/her wishes
which is intended to take effect only at his death. In order to make a will valid: testator must have
testamentary intention i.e. he must intend the wishes which he gives deliberate expression to take
effect only at his death. Literally, a will is a written statement, usually signed, made by an individual,
which directs the distribution of their property when they die.

According in Milnes v Foden, where a testatrix had settled her property upon such trusts as she
could by revocable deeds/will appoint, in I884 she duly executed a will which did not expressly
include some property and later she executed two revocable deed polls which were duly attested by
2 witnesses, where she appointed the settled property upon certain trusts from and after her
decease. Court held; that the deeds were testamentary instruments and entitled to probate; as
together with the will of 1884, constituting the last will of the deceased.

It's not however, necessary that the testator should intend to make or be a ware that he is making a
will as from the above case and in Re stable on a soldiers will-(head note)

What is meant by a will being ambulatory

It means that a will has no effect until the testator dies. This is the characteristics of a will and it's
usually expressed by saying a will is by its very nature ambulatory until the testator's death. Thus a
will can't confer benefits whilst the testator is alive. However, a will does not limit the testator'
rights of ownership and accordingly he remains free to sell, give a way or otherwise dispose of
property during the rest of his lifetime.
A will can further be described as a preparation in a prescribed form of the intention of the person
making it, of the matters which he wishes to take effect on or after his death. This definition
indicates the following characteristics
a). The scope of the will is not confined to dispositions of property.
b). The will operates only as a declaration
c). It usually must be in a prescribed form.
d). It is always revocable and at any time.
e). It takes effects on death of the maker.
f). Its ambulatory

The will has no effect until the testator dies. This is the basic characteristic of a will and it is usually
expressed by saying that a will by its nature is ambulatory until the testator's death. Thus, a will
does not confer any benefits while the testator is still alive. This is embedded both in law and
biblical verses, see Hebrews 9: 16-17. This has significant implications
a). During the testator’s lifetime, the contents of his will are treated as mere declaration of
intentions. Accordingly, he's at liberty to dispose of his property intervivous, notwithstanding
that it has already been devised by will.
b). A beneficiary to whom property has been left in a will can't ordinarily restrain the testator
from disposing of such property since his interest does not take effect until the testator's
death. His interest in the property lapses if he dies before the testator.
c). Property belonging to the testator at his death is capable of devolving under his will, even
though he had not yet acquired ii at the time the will was executed.
d). It's revocable in the testators' life time which may be partial/total.

CODICIL
Under S 2 (c) of the SA, “codicil” means an instrument explaining, altering or adding to a will and
which is considered as being part of the will. Literally, a codicil is of a similar nature to the will as
regards both its purposes and formalities relating to it. But in general, it's a supplement to and
considered as annexed to the will previously made being executed for purposes of adding to,
varying or revoking the provisions of that will.
NB. A professional draftsman invariably inserts words describing the document as a will or codicil
at the beginning of the document so as to make the nature of the document clear immediately
A codicil is nevertheless capable independent existence so that the revocation of a will does not
necessarily affect the revocation of a codicil thereafter. It's certainly not necessary for a document
which is intended to operate as a will codicil to describe itself as such whatever form it takes, any
document can be proved as a will if;
a). The person executing it intended it to at his death;
b). It was a duly executed document. To be duly executed means that the document must have
been signed and witnessed in accordance which the formalities required by the succession
Act under S. 50 thereof.

If a 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. Thus, lord Penzance in Cock Vs. Cooke
(1866) LRIP& 241 at 243 stated that “its undoubted law that whatever may be the form of duly
executed instrument, if the person executing it intends that it shall not take effect until after his
death and its dependent upon his death for its vigor and effect, its testamentary" This is
re-enforced in Milnes V Fden 890) 15 P.D 105, Sir James Hollens said, 'if there is proof either in the
paper or from clear evidence first that it was the intention of the writer of the paper to convey the benefits by the
interest which would be conveyed by it, is considered as a will; secondly, that death was the event which was to give
effect to it, then, whatever may be its form, it may be admitted to probate as testamentary. It is not necessary that
the testator should intend to perform or be aware that he has performed a testamentary act.

In Re Meynell (1949) WN 273, where the testators’ instructions to his solicitor for his will were
duly executed with the required formalities because the testators' physical condition made him
liable to die suddenly was held to be a valid testamentary instrument/will.

In Goodman v Goodman (1920) P 261, a testator executed a will in 19I5 and codicil prepared by
his solicitor; later he got injured in war and while in captivity wrote, a letter to his wife dealing with
family matters and saying “Tell N (solicitor) this affects my will, which I want added to it at once”
Then followed instructions as to the disposition of his real and personnel estate. He died before
the alterations were made on his will and probate was granted with the letter forming the second
codicil and Co form of the will and codicil of 1915. In an action by executors of the will and the
first codicil to revoke the probate of 2nd codicil, and establish the 1st codicil, Court held that the
testator having died the will (soldiers and sailor’s Act -19182) came into operation, the letter could
only operate on the personal estate not being independent of those of the reality, the letter was
importantly admitted to probate. Lord Steradale MR: at 271 stated "a document which is in terms of
an instruction for a mere formal document may be admitted to probate if it's clear that it contains a record of the
deliberate and final expression of the testators wishes with regard to his property… if along time has elapsed since
the writing of the informal document and if during that time the testator had opportunities of obtaining the formal
document he did not avail himself: that affords evidence that he had changed his mind; but if he dies very soon
without having such opportunity, the presumption is that the document is the last expression of his wishes' That
before the Act, soldiers were only in active service were only allowed to dispose of personality.

In Robertson v Smith and Lawrence (1870) to ALLER 43, a deceased dully executed a paper
which commenced ‘I hereby make a free gift to...' the court admitted parole evidence to explain
the intentions dependent on his death, granted probate of it as a codicil to the will of the deceased.
The deceased executed in the presence of witnesses (2) a paper to the effect "I here by make a gift
to Maria Robertson of 60 pounds and to John Virtue of 50 pounds being the sum deposited by me
with the Ishington branch of the London and country Bank" He had pronounced this paper as 2nd
codicil to Miu of the deceased. The issue was whether this paper could be admitted to form part
of the probate, as a codicil to the will of the deceased. Court held as per Lord Penzance, that the
guiding principle in determining whether a paper is or not of testamentary character is the
intension of the testator made by it should be dependent on his death. That in ascertaining the
intention, if the language of the paper is insufficient, parole evidence may be admitted to ascertain
such intention. Secondly, that no doubt, the testator did intend that this gift should be dependant
on his death, he had the money in the bank and was dying at the time he executed this paper and
therefore it was a codicil.

In Re Stable (1902) P 7, the deceased a minor on June 2nd 1917 told the plaintiff "if anything
happens to me, and I stop a bullet, everything of mine will be yours 'and again on July 6, when
they were calling together on Miss T, the deceased said to her same words. The plaintiff after the
deceased's death on 9th October 1917 brought this action for Probate of anuncupatory will in her
favour. Court held that the expression “if I stop a bullet every thing of mine will be yours" used by
him on July 6, constituted a good will and I pronounce for probate of the will in these words as I
accept the plaintiff's and Ms T's evidence that this was the expression used. His lordship Horridge
J stated 'It's not necessary in order to establish the validity of a soldier' will to prove that he knew
he was making a will or had the power to make a will by word of mouth. That the statement made
by the deceased man must be meant for a will only in the sense as that he intended deliberately to
give expression to his wishes as to what should be done with his property in the event of his
death."

NB. The case note to the above case was "it's not necessary for the validity of a soldiers'
nuncupatory will to prove that he knew he was making a will or that he had the power to make
will while a minor by word of mouth. It’s enough if he intended deliberately to give expression
of his wishes as to the disposition of his party in the event of his death.

Advantages of making a will

a). Spells out the wishes of the testator explicitly.
b). Avoids possible conflicts and avoids disinheriting beneficiaries under the will, thereby
reducing conflicts in the administration of the deceased's estate as compared to intestate
succession.

Demerits
● Properties left outside the will cannot be made part of the estate described under the will,
because a will is like a dictionary and as such conclusive in matters contained therein.
● Some people might have an influence over the deceased and as such might unjustify enrich
themselves from.
● If a beneficiary witness’ the will, his bequest under the will is void, thus cannot be able to
get it or take over it.

TYPES OF WILLS
1. Privileged wills
2. Ordinary
3. Mutual wills

Privileged wills provided for under S.52 and 53 of the Succession Act
These can be made by persons of or above 18yers of age who are member of the armed force,
employed in an expedition or engaged in actual warfare or by any mariner who is at sea. Under
S.53 (1) of S.A a privileged will may be written or oral. An privileged will may be a testator
declaring his intensions before 2 witnesses present at the same time. Its nullified after the
expiration of one month after the testator has ceased to be entitled to make a privileged will under
S. 53 (2) SA.

Privileged wills may be written wholly/ partially by the testator or reduced into writing according
to the testator’s instruction by another person. The testators' instructions must have been given in
presence of 2 witnesses if a privileged will is wholly or in part by another person and is not signed
by the testator: it was written by the testator’s directions or that he recognizes it as his will.

A member of the armed forces being employed in an expedition includes nurses, typist etc. thus, in
Re Wingham (1949) P 187 at 196, Denning LJ said that when the Act refers to a soldier or
member of the armed forces, it includes only not the armed but also all those who serve i.e.
nurses, doctors, chaplains, typist, etc. The brief facts of this case were that an airman who had
entered the royal air force in Feb 1942 when an officer training as a pilot at a camp training
school in Sasketcherah, Canada, signed on March 1st 1943, a document which he described himself
as will but did not get it attested. He died on August II 1943. Court held that the document must
be admitted to probate as a valid will since the air man when he executed the document was 'in
active military service' within the meaning of the section of the will's Act 1837. That the words in
"actual Military service" mean in active military service. The English law as to a soldier's
testamentary capacity is not identical with the Roman law as to the privilege of the Roman
legionary when in "expedition" since the former depends on the construction of the section. The
test in English law is both simple and certain, any soldier, sailor or airman is entitled to the
privilege of making a will without any formalities if at the time he is actually serving with the
armed forces in connection with military operations which are or have been taking place or are
believed to be imminent. Denning LJ stated that the following cases should be regarded as no
longer of authority; in the estate of HW (1848
Bowles v Jackson (1884), In Re estate of Gibson (1948) and in the estate of Anderson (1944).

In The Estate of Stanley (1916) P 190, a nurse employed by the war office in a hospital ship
wrote a letter giving the addressee full liberty to deal with her affairs and giving directions as to the
disposal of her party. The letter was written during an interval of leave on shore in this city but
after the writer had received orders to re-embark. Court held that the letter which was un attested
was privileged as a soldier’s will within the meaning of the Will's Act 1837, S. 11and that the
person to whom it was addressed the executor according to tenor and as such entitled to probate
of the document.

From the above case, not every member of the armed forces is privileged; it only extends to
persons who are at the time of making the will, serving in a military expedition/engaged in actual
warfare. Read in the estate of Gray (1922) P 120

In Re spark (1941) while serving in the army camp in England in the time of war, a soldier made
an oral declaration to a comrade that he wished all he had to go to his wife if he were killed. Two
days later while in camp he was killed by a bomb dropped by the enemy during an air raid, Court
held that the soldier was in actual military service within the meaning of the Will's Act, S.11 when
he made the declaration which therefore constituted a privileged will.

When does military service Arise (start?)

Courts have said that it commences from the time a member of the armed forces receives orders
to engage in war/expedition. Read these cases, Balywood v Hance (1942) P.99, Re Goods Hiscook
(1901) P.78 and Re Rhino (1915) TO Ch 240.

In the Estate of Yates (1919) P 93, the will's (soldiers and sailor) Act 1918 which enlarges the
power of sailors to make privileged wills under the wills Act 1837, by putting them in the same
position as soldiers applies to the case of a sailor who made his will before but died after the
passing of the Act of 1918.
In The Estate of Rowson (1944) to ALLER 36, the deceased was a member of the women's air
force. She was in the balloon command and at the true of her dearth, was in charge of a depot in
Gloucestealine. Court held that the deceased was in a actual military service within the meaning of
the W A 1837 (S.II)

In Re Rippon (1943) P. 61 at 67, court stated that the question whether at the time of making his
will, a person is privileged as being "in actual military service" depends on the facts of each case
and circumstances which existed at the time. The facts are that, on Aug 25. 1939, an artillery
officer in the "territorial Army who had earlier on that day been ordered to rejoin his butlery in
England, made a testamentary document which did not comply with the formalities required
under Will's Act 1837. His services with his butlery were "urgently required for ensuring
preparedness for the defense of the realm against external danger" but the territorial Army was
not embodied until September 1st and it was not mobilized until September 2nd while war was not
declared between Britain and Germany until September 3rd. Court held that on august 25 / 1939,
the officer was "in actual military service" within the meaning of the section and was entitled to
make a privileged will

According to the Halsbury's laws of England, 4th edition, Vol 17: the term is equivalent to the
Latin word "in expeditione" if the term is broadly interpreted, implied "active service on the part
of the person of either sex and any rank whose concerned section with operations in a war which
is or has been in progress or imminent, and whether or not an element of danger exists.

It may include solders on leave, nine years after the cessation of hostilities but it does not include
mere services in barracks at home in time of peace, although it see that it may include the
performance of professional duties in military authority in time of war. In Re Estate of Colman
[1958] 1 WLR 457, I may 1954, an infant testator who was at the date on leave in England from
the British army of the Rhine purported to execute a will which was prepared with the advise of a
solicitor and properly executed according to the Act. According to information supplied, the
forces were in 1954 in occupation of Germany by virtue of unconditional surrender of 1945 and
the position, status and function of those forces were that of an army in occupation of a foreign
country by force of arms. The issue was whether or not the infant was in May 1954 in "actual
military service" on application of probate. Court held that since the testator [infant] was on
military service, despite the lapse of 9 years since the unconditional surrender, was directly
concerned with the war which had been in progress, he was “in actual military service” in may
1954 and that the will was valid

In Re Goods of Hiscook [1901) P 7, where the printers’ apprentice was sent in his name for
active service in the war then being engaged in S A was certified as fit and pursuant to the order
went to the barracks where he made a will being at the time under 21 years of age. An order
subsequently received from the military authorities to which he embarked with his regiment and
died from a wound received in a battle. Court held that by taking the step of going into the
barracks with a view to being drafted to the seat of war, he had brought himself within the
operation S.II/WA and that he was at the time he made a will “a soldier in actual military sense”
and consequently that though made at the time when he was under age, was entitles to probate.

Mariner, being at sea

This includes all categories and members [now] of natural marine force. It includes all the support
staff etc. In The Estate of Knibbs [1962] IWLR 852, the deceased a mariner at sea was serving as
a bar man in an ocean liner and had given to his employer the name of his sister as his next of kin.
On April 6, 1960, the liner arrived at its destination one of its passengers being the deceased's
sister was disembarked.

The following evening in the course of the conversation between the deceased and the head said
"If any thing happens to me Ins will get any thing I have got." The deceased died in March 1961.
In action by Ins in which he propounded these words as a privileged will within the meaning of
sec. II / WA 1873, Court held (I) that the deceased as a mariner at sea was entitled to make a
nuncupative will but to constitute such a will there must be a statement by the deceased of his
wishes for the disposition of his property after the death which is not merely imparted to his
audience as a matter of information or interests but intended by him to convey to that audience a
request, explicit or implicit to see that his wishes are acted on. (2) That the deceased in his
conversation with the head barman was not recording his wishes as to the disposition of his
wishes as to the disposition of his property with the intention that his words should be acted on
and was not therefore performing a testamentary act. Accordingly the words did not constitute a
nuncupative will.

According to Halsbury's Laws of England 4th edition, vol. 17 at paragraph 827, it is stated
that "mariner" or "seaman" extends to officers of every rank to merchant seamen and mariner and
it may extend to women. The privilege extents to person in maritime service on board, a vessel
permanently or stationed in a harbour or on service in a river.
For the privilege to apply it's not necessary that the will should in fact have been executed at sea
provided it's in the course of a voyage or in contemplation the afresh voyage. In the Goods of
Hale (1915) 2 / R 362, Held: that a female by just on board was a seaman with in the meaning of
wills act

In The Goods of Newland (1952) p 7, an apprentice in the merchant may while on leave in war
time executed a testamentary document shortly before rejoining the ship which sailed a day or so
later. The document was executed in compliance with the formalities of the WA 1873 but as he
was then a minor the question arose on his death, whether he was at the material time" a sea man
being at sea" within the meaning of the statute. Court held: that since the document was executed
in contemplation of afresh voyage and the deceased was under orders to rejoin his ship bag a
certain date; he was "a sea man .at sea" when he made the will

According to Para 828 Halsbury's laws of England (supra), any form of words, whether written
or spoken by the testator in the presence of a credible witness will suffice to constitute a solders,
sailors' or airman's will, provided that it's a deliberate expression of his wishes and in intended
have testamentary effect.

Further Para 825 Halsbury's laws of England 4th edition (vol. 17) provides that the condition
that a testamentary instrument can't be admitted to probate unless its executed in accordance with
the statutory requirements does not apply to a solder, in actual military service or to a mariner/sea
man being either at sea or to a mariner/ so circumstanced. that if he were a solder he would be in
actual military service, nor does it apply in the circumstances to a member of the royal Air force,
who is for this purpose deemed to be a solder. A person so privileged may make a will even
though he is intended to have testamentary effect.

The testator need not be conscious or know that he is making a wi1l. Evidence of a statement
made by the deceased after executing the will is admissible to prove its contents but cogent
evidence is necessary. When the will is made orally it's called nuncupative.

What is being at sea?

A mariner does not have to be at sea all the time and therefore it's only when the mariner is at sea
during the time the will is made that the privilege is approved to him. In Re Ripon (1943) P 61 it
was stated that that depended on facts of each case.

In The Goods of New land, it was stated on the issue whether an apprentice on leave but to be
back at a certain date meant was seaman at sea; that since the document was executed in
contemplation of afresh voyage and the deceased was to rejoin his ship at a certain date, he was a
seaman at sea when he made the will

In Re Anderson (1916) P49, a member of a local corporation of the St Johns association being
about to start from home under orders to join HM Pembroke, permanently stationed at chattam,
wrote a document disposing of his property at home on the morning of his departure. He
remained in barracks of chattam and did not soon board ship till he joined transport on Aug 17/
1914 and he was wreaked. Court held: that he was not within the exception of the sec. II of wills
Act. Thus no valid will was made. Refer also to Para 827 Halsbury's Laws of England and Re Hale
(a female hypist on board was held seaman at sea)

Extent of privilege
The extent availed is that such wills,
a). Need not be signed, a declaration by a soldier may be accepted as a nuncupative will.
b). It must be witnessed, especially when oral
c). It can be oral
Thus in Re Stable (l919) 7 , the case note provided that it's not necessary for validity of a soldiers
nuncupative will to prove that he knew he was making a will or that he had the power to make the
will or by word of mouth. It's enough if he intended deliberately to give expression of his wishes as
to the disposition of his property in the event of his death. To which the holding reiterated and
gave effect (up held). In this case, the expression "if I slop a bullet every thing of mine will be
yours" used by liner was held to constitute a good will. Being corroborated by miss T who heard
the testator use a similar

In Re Goods of Spicer (1949) P 441, the deceased when on a military embarkation leave, put his
hand to his breast pocket. and pulled out a small book similar in appearance to a standard Army
pay book which would contain instructions on space for making of a solders will saying "if any
thing happen to me everything is to be for R" (the D). Evidence was given that the manner in
which he spoke indicated to the witnesses that he was talking something already written in his pay
book. No other evidence of the relevant contents of his book was given. Court held: that the
words spoken came within the decision of Horridge J in Re stable (1919) p 7 namely" it's not
necessary for the validity of a solders nuncupatory will to prove that he knew he was making a will.
It's enough if he intended deliberately to give expression to his wishes as to death, the disposition
of his property in the event of his death and it is immaterial whether the deceased or others
thought that in making such a statement of his wishes it was necessary for him to refer to a
document which was already in existence.
Percuriam; court Doted a declaration by a soldier may be accepted as" valid nuncupative will
although that declaration was made while he was referring to an earlier testamentary document,
for such declaration may be beyond a mere reference to an existing disposition and stand by itself
as an indication of what the deceased wishes to be done with his estate after his death”

Ordinary wills
Requirements of a valid ordinary will
These are the wills made by most people and these comprise what would be called the civilian
population (the locals who do not qualify to make privileged wills)

The capacity to make wills is provided under section 36.SA;

,
Under S. 36 (1) of the SA, every person of sound mind and not a minor may by will dispose of his
or her property.
By necessary implication, any person below the age of 18 years cannot make a will to dispose off
his/her property

Under S. 36 (2), a married woman may by will dispose of any property which she could alienate by
her own act during her life
Likewise, under S. 36 (3) a person who is deaf or dumb or blind is not thereby incapacitated for
making a will if he or she is able to know what he or she does by it.

In James Katende V Dan Byamukama Administrator Cause No. 201 of 1992 Byamigisha J (as
then she was Held that the making of will is governed by provision of S.46 SA (now 36 of
Succession Act hereinafter SA) which state that every person of sound mind and who is not a
minor may by will dispose his party. A will in the ordinary sense must be in writing and signed by
the testator or someone in his presence and at his direction. The signature must be made by the
testator in the presence of two witnesses or more who must be present together at the same time
and see the testator affix his signature as requires under S 50 (SA).

In Ruth Nsubuga and ors V Peter Nsubuga & ors HCC 5 103/1988, the plaintiff was a widow
of the deceased by 2nd marriage. She sought a declaration that she was the lawful executor and
trustee of the deceased by his 1st marriage who challenged the validity of the will and counter
claimed that as issue of the testator they should be granted letters of administration of the estate.
In addition the defendants stated that the testator was too will to have been fit to make a will. The
issue was whether the will was valid and if so, whether the plaintiffs were entitled to a grant of
probate? Court held: that although the testator was defendants are not happy about the contents
of the will but I am not convinced by defence evidence or any other evidence that the will was not
made according to the law, the will is valid"

In Woods V Smith (1993) Ch 90, the testator told someone at the time he was making the will
that he had investments worth £ 105,000 whereas the actual value was in excess of £105,000. This
showed that he was therefore seriously confused as to the extent of his assets and court held: that
this was consistent with such confusion of mind as to indicate that the deceased lacked
testamentary capacity. On appeal this was upheld by CA that the onus of establishing
testamentary capacity had not been discharged.

In Harwood V Baker (1840) 3 M. PC 282, a will executed by a testator on his death bed, giving
all his property to his wife was held invalid because owing to his illness the testator was unable to
comprehend and weigh the claims upon him of his relatives.

The question is, can a mad person, make a will? The answer is yes but qualified under S. 36 (4) of
the SA, which states that person who is ordinarily insane may make a will during an interval in
which he or she is of sound mind.
NB. The implication of the above provision is that an insane person can make a will during
periods of sanity and is only incapable of making one in times of insanity. If a person suffers from
temporary insanity, then during the periods when he is not insane he can make a will and will not
be challenged thereafter as being void for want of capacity.

It should be noted that under S. 36 (5) of the SA, no person can make a will while he or she is in
such a state of mind, whether arising from drunkenness or from illness or from any other cause,
that the person does not know what he or she is doing.

The import of the above provision is that the person should be able to understand the nature of
his act in disposing off his property.

Secondly, the testator must have testamentary intention and therefore a person can't make a will
while a drunk or delirious (coming from delusions).Testamentary intention means that a testator
must intend the wishes to which he gives deliberation to take effect only at his death. He must
have 'animus testandi.’ It means in effect that;
a). The testator must understand the nature of the act in which he is engaged i.e. making of a
will
b). The testator must be free of vitiating mental disorder and;
c). The testator must exercise his genuine free choice in the making of the will
Testamentary intention is ascertained from the language of the document and from extrinsic
evidence.

Accordingly, in Banks V Good fellow (1870) QB 549, Cockburn CJ said; "it's essential….... that
the testator shall understand the nature of the act and its effect; shall understand the extent of the
property of which he is disposing; shall be able comprehend and apprehend-the claims which he
ought to give…..That no insane delusions shall influence the will in disposing of the party which if
the mind had been sound would not have been made"

This is fortified further by Sir Hannen in Bough ton V Knight (1873) 3PD 64 at pages 65 to 6
when he states; that the testator must have “a memory to recall the several persons who may be
fitting objects of the testators' bounty and understanding to comprehend their relationships to
himself and their claims upon him" This is in parimateria with the statement in paragraph 898 of
the Halsbury’s laws of England 4th edition, vol. 17

There basically 3 elements

a). The effects of wishes at his best
b). The extent of party being disposed of that the testator should at least have affair
knowledge
c). The nature of the claims on the testator. He should know his debts and those who are
legally entitle to his estate.
The will must be executed in the manner provided by law. That is, it must be signed and witnessed
by two witnesses. S.50 of the SA provides that except as provided by this Act or other law in force
every testator not being a member of the armed forces employed in an expedition or engaged in
actual welfare, or a mariner at sea, must execute his or her will according to the following
provisions

a). The testator shall sign or affix his or her mark to the will, or it shall be signed by some other
person in his or her presence and by his or her direction;
b). The signature or mark of the testator or the signature of the person signing for him or her
shal1 be so placed that it shall appear that it was intended thereby to give effects to the
writing as a will;
c). the will shall be attested by two or more witness, each of whom must have seen the testator
sign or affix his or her mark to the will, or have seen some other person sign will in the
presence and by the direction of the testator, or have received from the testator a personal
acknowledgment of his or her signature or mark, or of the signature of that other person;
and ea{:h of the witnesses must sign the will in the presence of the testator, but it shall not
be necessary that more than one witness be present at the same time, and no particular form
of attestation shall be necessary.

N.B.1. A witness need not necessarily be present when the testator or testatrix is signing, provided
the maker of the will acknowledges his signature, it suffices. This is from the wording of the above
section 50.
N.B.2. The requirements of a valid will entails it being in writing if it is an ordinary will

Where a will is hand written, it's sometimes called a holograph. It may be in ink or pencil or a
combination of both. However, where both are employed and there's a conflict between the
portion's of the will in ink and in pencil, the presumption is that the pencil writing was merely
deliberate and not intended to operate as part of the will see (see case of, In the Goods of Adams
(1872).

A will can be written on any material as espoused in Hodson V Banes (1926) will written on an
empty egg shell was accepted as valid.

Thorn V Dickens (1906), although wills drafted by professionals often employ complex legal
precedent, no particular language or form of words is required.

It's not a requirement that a will should be written in English. In writing V Turner, a will written in
French was admitted to probate and in Re Berger {I989) the same was true of a testamentary
document written in Hebrew.

The law does not insist that the writing must be embodied in a single document. According to the
Privy Council in Douglas-Menzies V Umphelby (1908) that even where a person's testamentary
wishes are set out in several documents, he will be deemed to have left only one will i.e. the
aggregate of all documents forms a will.

Testators Signature (Nature)

Courts are remarkably liberal in determining whether a will has been properly signed. This is
evident in the authority of in the goods of Chalcraft (1948), where T executed a codicil just
before she died. Because she was so ill, she could not complete her signature and what appeared
on the codicil was E’chai” Court held this was a valid signature.

In the goods of cook (1960) where a will began with the name of the testatrix and ended
with the words" your loving mother court held: the will w\ valid as the testatrix intended the
words to represent her name.
What is the effect of a beneficiary witnessing the will?
First it does not thereby make the will void and second and secondly it does not make the
beneficiary incapable of the witnessing the will but may affect his bequest. These two
positions are embedded in S.55 of the SA, which provides that no person, by reason of
interest in, or of his or her being an executor of, a will, is disqualified as a witness to prove
the execution of the will or to prove the validity or invalidity of the will.

Also S 54 (1) of the SA, states that a will shall not be considered as insufficiently attested by reason
of any benefit given by the will, either by way of bequest or by way of appointment, to any person
attesting t, or to his wife or her husband, BUT the bequest or appointment shall be void so far as
concerns the person so attesting, or the wife or husband of that person, or any person claiming
under either of their Estates of Brarda). Court held (per Russel L.J) that it’s inappropriate to ask a
beneficially the spouse of a beneficiary to witness a will because every time a beneficially or his
spouse is an attesting witness, the act deprives him of his benefit.

However, under subsection (2) of S. 54 of the SA, a legatee under a will shall not lose his or her
legacy by attesting a codicil which confirms the will. This is an exception to the above S. 54 (I)

Witness S.54 & S.55 (SA)

The role of a witness was discussed in Administration General V Teddy HCCS 208/1992
Court noted that once a will is before court, the best evidence which the court ought to accept
concerning is due execution will be form one of the witnesses who attested to the will. Because of
this function of a witness, any bequest to a witness in a will or bequest (spouse or husband) is
void. Court held: that where the witnesses can't be traced the court will look for evidence from
other people who were present and witnessed the execution. In the instant case, no proof of due
execution was made at the time of the grant and none was demanded by before probate was
granted under Administrator General’s Act.

Appointment of testamentary guardians

The law is contained in S 43 SA. It provides to the effect that a parent who has parental
responsibility for his child may appoint another individual to be the child's guardian in the
event of his death, and the guardian may appoint some one else to take his place in the event
of his own death but the guardian's appointment normally takes effect only when the child
no longer has a parent who has parental responsibility for him.

Exercise of testamentary power of appointment

A testator may exercise such power conferred on him;
a). By a will made in writing and only executed or
b). By an informal will If the testator is privileged

IN Re wernher (1918) 2 Ch 82, Wemher having under his fathers' will a general power to appoint
1,000,000 sterling by will made in 1916, when on active service, purporting to exercise the power
and was killed in action when an infant between 19 and 20 years of age. The issue was whether the
will of Wernher operated as a valid exercise of a power of appointment over a sum of 1,000,000
sterling given to him by the will of his father, Sir Julius wernlon and the only direction was that the
appointment should have been a valid exercise of the power must be by codicil 1 will. Court held:
that the will operated as a valid exercise of the power. Bankes CJ: said that the question was what
was intended and contemplated by the testator by the use of those words. 'It's obvious that he
intended and contemplated that the power should be exercised by an instrument which should
operate only upon the death of the donee and he provided for that by the direction that it should
be exercised by will or codicil. That the use of such words simply, he intended nothing further
than that the donee of the power should be of testamentary capacity' and held to the effect that
the will made had sufficient compliance with the direction of Sir Julius' will. The appeal was
dismissed.

In Re Earl of Chichester WT (1946) I Ch 289, by his will dated June 6th 1908, the earl of
chichester devised certain free holds in strict settlement which entailed certain powers to jointure
and create portions which were exercisable by his success in title. The eighth earl who became
tenant for life and entitled to exercise the power, on Jan 28/1914, the solicitor to the 8th earl who
was then a captain in the Scots guards, took oral instruction from him (8th earl) about making of
his will and made it. The 8th earl had mobilized for active service and was later killed. The court
ordered that the note be admitted to probate as his will and was granted. By this summons, the
justices of the 6th earl's will asked whether the 8th earl's will operated as an exercise of his power
under 6th earl's will (a) to change a jointure in favour of his widow and (b) to raise portions for his
children. After citing Re Wernher and Godman V Godman Court held as per Evershed J: that
notwithstanding S.l0 of the Act, a special power to appoint personally by will may be validly
exercised by any instrument in fact admitted to probate here as a will, at P 299, in his judgment, S.
3 supported the views expressed by in RE wernher and Godmand V Godman, that s.11 Will's
Act was intended to enable a soldier by these informal wills, to dispose of personality which
belonged to him or over which he had a power of appointment, general or special, he thus
concluded that 'the informal will now before me was capable of exercising to jointure and to raise
the portions if its language was appropriate to those purposes.' Secondly, that the will did operate
to charge a jointure in favour of the widow but did not operate to raise portions of the child

In Cooper V Martin (1867) 3 Ch A.pp 47, a testator gave an estate upon trust for sale, with the
power of pre-emption to his younger children and the proceeds were to be held upon such trusts
as his widow by deed or instrument sealed and delivered before the youngest child attained the age
of 25, should appointment and in default for his children, except the eldest son, equally. The
testators' widow by deed poll executed within the prescribed period appointed proceeds of the
estate among all children equally but reserved of power of revocation. By her will which was also
executed before the youngest child attained 25 years, but came into operation by her death after
the prescribed period, she appointed the estate by name to the eldest son, Court held: that the will,
having come into operation after the prescribed period, come into operation after the prescribed
period could not take effect as a new appointment under the power; and that this was not such a
defective execution as would be relieved against in equity

Effects of insane delusions and undue influence on a will

Under S. 47 of the SA, a will or any part of a will, the making of which has been caused by fraud
or coercion, or by such importunity as takes away the free agency of the testator, is void
A delusion in the mind of a testator deprives him of the testamentary capacity if the delusion
influences or is capable of influencing the provisions of his will. According to Paragraph 897 of
Halsbury's of England 4th edition (supra), its' necessary for the validity of a will that the testator
should be of sound mind memory and understanding, dementia a rising from advanced age or
produced by alcoholism 1 any other cause may destroy testamentary power.
Consequently, such a will may declared void as fortified in paragraph 900 of Halsbnry's Laws of
England (supra), that 'a will made during the period of incapacity is void and where a person is
handicapped by mental illness to the extent that his state has been or could have been subject to
the control of court, but nevertheless purports to make a will., letters of administration will be
granted as in the case of intestacy. A will executed during incapacity does not become valid by the
testators subsequent recovery

However, there may be a limited exception to this rule where the only part of the will is affected
by a delusion as submitted by Parry n his textbook, law of succession.

Para 912 Halsbury's Laws of England, it is noted that a man may approve and know the
contents of a will when its volition has been over powered and conversely he may, if his own free
volition execute a document for some reason he has not approved or which he has no knowledge.'
It is thus emphasized that it is essential for the validity of a will that the testator should have
known and approved of its contents at the time of its execution.

Therefore whatever form undue influence takes, the test is whether the testator was coerced. In
Hall V Hall (1868) LR IP and D 481 at 482 Lord Penzence said "....pressure of whatever
character, whether acting on the fears or the hopes, if so be exerted as to over power the volition
without convincing the judgment, is a species of restraint under which no valid will can be made ...
In a word the testator may be led but not driven and his him must be the offspring of his own
volition and not the record of some one else”.

Indeed in Wingrove V Wingrove at p82 , .James Hannen p stated "To be undue influenced in the
eyes of the law, there must be coercion which may be of different kinds, it may be in the form
such as confinement or violence or a person in the last days hours of life may have become so
weak and feeble that a very little pressure may be sufficient to bring about the desired result; it may
even be that the mere fact of talking to him at that stage of an illness and pressing something upon
him, may so be fatigue of the brain that the sick person may be induced "for quietness" sake to do
anything this would equally be coercion though not actual violence"
In Dew V Clark (1826) 3 Add 79 at 90, a wilt in which a testator made no provision for his
daughter was set a side because the court found that he had nursed a pathological a version
towards her from the time she was born.

In Re Nightingale, where the father fell prey to the delusion that his son was trying to shorten his
life and cut him off from his wilt, the will was declared invalid.

However, where the delusions don't affect the knowledge and understanding, they won't invalidate
the will as stated in Bankes V Good fellow.

Where delusions don't affect the instruction but execution alone Perera V Perera (1901) Ac 354,
at 361-362, court held: inter alia: that where a testator is of sound mind when he gives instructions
for a will but -at the time of signature accepts the instrument drawn in the pursuance thereof
without being able to follow its provision must be deemed to be of sound mind when it's
executed.
● A testator suffer from a delusion if the holds; belief on any subject which no normal
person could hold and which can't be permanently eradicated from his mind by reasoning
with him.
● Certainly a parent is not in capacitated from making a will because he has formed an
unduly harsh view of his child's characteristic. But if the parents mis-judgment really stems
from an irrational aversion towards his child a mounting to a delusion, then the parent
lacks testamentary cap", (Drew V Clark Supra)
● A delusion in the mind of a testator does not deprive him, of testamentary capacity if it
can't have any influence upon the maker in making the will. In Bankes V Good Fellow, a
testator suffered from the delusion that he was pursued and molested certain man who
was a1ready dead and who was in no way connected to the testator, and by devils or evil
spirits whom the testator believed to be visibly present. Nevertheless, the court held: that
the testator had testamentary capacity because the delusions were not capable of having
had any influence on the provisions of the will.
● Time for satisfying the test.
The testator must have testamentary capacity at the time when he's making or executing
the will. Alternatively, it suffices that if the testator has testamentary capacity at the time
 when he gives instructions to a solicitor for the preparation of will provide;
a). The will is prepared in accordance with his instructions.
b). That at the time of execution he is capable of understanding and does understand
that he is executing a will for which he has given instructions.
This alternative is useful in cases were the testator's capacity deteriorates after giving instructions.
This was applied in Parker V Filgate (1883)8 PD 171 where a testatrix's will was upheld because
on being aroused from a partial coma at the time of execution, she was capable of understanding
and did understand that she was executing a will for -which she had given instruction. The testatrix
had given such instructional directly to her solicitor.

It was immaterial that, at the time of executive she was incapable of remembering her instruction
or even of understanding each clause of the will if it had been put their.

In Battan Singh V Amirchand (1948) Ac l61 at 169, the Privy Council said that' 'the principle
enunciated in Parleer V Filgate should be applied with the greatest caution where the testator
gives instructions to a lay intermediary who repeats them to the solicitor. That "the opportunities
for error in transmission and of misunderstanding and the deception in such a situation are
obvious and the court ought to be strictly satisfied that there's no ground for suspicion and that
the instructions given to the intermediary were unambiguous and clearly understood, faithfully
reported by him and rightfully apprehended by the solicitor” The facts of this case were; a testator
in the last stages of consumption had reduced by disease to extreme weakness had declared in his
will which he made a day before he died and by which left all the property absolutely to the
respondent who were in no way related to him, he had no relationship any where, though if he was
of sound mind, he must have known that this was untrue and that he had for nephews, Court held:
that the will was of a man so enfeebled by disease as to be without sound mind or memory at the
time of execution and the disposition of his property under it was an out come of the delusion
touching his nephews' existence and the will was therefore invalid.

In Boughton V Knight held to the same effect of testamentary capacity, the testator should be
capable of understanding, comprehending and apprehending what he's doing. That delusion is the
test of insanity, and that the absence or presence of delusion in the sense of an unreasonable belief,
in the existence of something extravagant which has no existence save in the patients heated
imagination, forms a true and the only test or criterion of the absence or presence of insanity.
Delusion in this sense and insanity are convertible terms. The existence of a delusion compatible
with the retention of general powers and faculties of the mind is not; however, sufficient to
overthrow the will, unless the delusion is such as was calculated to influence the testator in making
will. It's a question of fact whether the delusion affected the disposition.

According to Para 901 Halsbury's' laws of England (supra), unsoundness of mind exists where
there's a defect of reason, consisting in its total or partial absence or in its disturbance. It's
frequently marked by the existence of delusion, that is, belief in facts which no rational person
could believe. Thus, in Re Estate of Bohrman (1938) ALLER 271, a testator made a will which
included gifts to English charities. He later developed an insane delusion to the effect that the
London country council was persecuting him. He then executed a codicil to his will, one 'clause of
which substituted United States charities for the England charities. Langton J: decided that the
relevant clause in the codicil was affected by the delusion and he upheld the validity of the original
will and the codicil with the exception of the clause .in. the codicil which substituted the U.S
charities for the England charities.

NB. This is the only case that has decided the effect and even the exception and as such Parry's
submission in his textbook at p 62 is doubtful. This is my view anyway.

According to Barry V Butlin (1838) 2 M PL 48 12 ER 1089, Parke B stated to the effect that
where a party prepares a will under which he takes the benefit, that is a circumstance that ought to
generally excite the suspicion of court unless such suspicion is removed and judicially satisfied that
the paper propounded does express the true will of the deceased for cannot be valid.
Particulars of undue influence required in the plaint
In The Estate of Shrewsbury, where-in an action to establish a will the defendant pleads that the
testator is of unsound mind or that the will was obtained by undue influence, the plaintiff is
entitled to have stated in the substance of the case particulars of the nature of the unsoundness
and of the characteristics of the person present.

Effect of undue influence and fraud on a will

Para 911 of Halsbury's Laws of England, a will or part of a will may be set a side as having been
obtained under undue influence. In Wingrove V Wingrove (1885) II PD 81 at 82, See previous
pages of a le sufficient to
According to Re Estate of Posner (1953) P2 277, a false description of a legatee is not in itself
sufficient to must further more have been by that fraud.

MISTAKE
What if the mistake is only on the part of the will and is not on the entire document, does it
invalidate the whole will? In The Goods of Boehm [1891] P 247, a testator in giving instructions
for the preparation of his will directed that a request of 1000 I should be given to each of his
unmarried Georgiana and Florence. The conveyance prepared a will and by inadvertence inserted
the name of Georgiana in both clauses of the will relating to the gifts to the unmarried daughters
and omitted the name of Florence altogether. The draft was not read over to the testator at any
time and the error was not brought to his notice. Court held; that the will omitting the name of
Georgiana in the 2nd clause of the gift might be granted to the executors. Jeune J stated mistake is
to be regarded as a question of fact depending on the circumstances of each case and there’s now
no difficulty in striking but a clause or a single word, if shown to have been inserted by mistakes. If
a person by fraud obtained the substitution of his name for that of another in a will, it would be
strange if his name could not be struck out, although the rest of the clause in which it occurred
becomes thereby meaningless.

In The goods of Moor [18921 P 378,

A testatrix by her will constituted her illegitimate son her universal legatee and executor. After
execution of his will and before his death, wished to bequeath some property to his sister, next of
kin and heiress at law and proceeded to write out bequest giving effect to such wish on a printed
form which was duly executed. The form commenced with the clause of revocation but the
testatrix did not fill up the blanks in this part of the form and the clause was not read over to her
at the time of execution though the rest of the will was, and there was no evidence that she knew
of such a clause. Court held that under the circumstances probate might be granted of the paper
omitting the clause of revocation, as a codicil to the original will.

Method of signature
A will can be signed where the testator merely initialed the will as was in the Goods of Savoy
(1851) affixing a rubber stamp bearing his signature on the will (as was in Re Jenkins) as well as
where the testator has made an imprint of his thumb or some other mark on the will, intending
this to represent or signature as in (Re Flynn [1935]

It may be signed on his behalf in his own presence and by his direction

a). Position of the signature.

The testator's signature has to be placed at the foot or end of the will. This was initially strictly
construed e.g. Smee V Bryer (1848) where a will was held to be void on the ground that the
signature of the testatrix did not appear on the 8/10 inch of space left on the page containing the
will but on the next page.

Signature must be intended to give effect to the will

In Re Beadle (1974), the deceased wrote her will on a single sheet of paper which she signed at
the top right hand corner in the presence of only one attesting witness. The will as it stood would
have been invalidly executed. However, it had been put into an envelope that was signed by the
deceased and to the executors named in the will who certified beneath their signatures that the
document in the envelope had been written in their presence. Court held: that the signature on
the envelope would not render the will valid as were simply for the purpose of identifying the
contents and not to give effect to the will.

This must be contrasted with the case of, In the Goods of Mann, where a testatrix made an
unsigned which she placed in an envelope. On the envelope were the words "last will and
testament of J. I Mann followed by the signature of the testatrix and two other persons. Probate
was granted to the will since court found that the signature of the testatrix on the envelope was
intended to give effect to the will

In a recent case of Wood V Smith (1991), the testator who had already made a valid will in 1978
decided two days before his death in 1996 to make afresh hand written will. The will commenced
with the words "my will by Percy winter bone." The testator did not sign it at the end after setting
out the dispositions he wished to make when the attesting witnesses remarked on this, he
explained that he had signed the will at the top and this sufficed under the law. The executors took
the view that the 1986 will was not validly executed and therefore applied for probate of the 1928
will. Court held: that the signing of the testator's name at the top of the document and the
dispositive provisions were part of the same single operation and the signing was clearly intended
to give effect to the will, as contemplated by the law as being valid.

In the Estate of Bean (1944), the deceased after making his will forgot to sign it. He did however,
write his name and address on an envelope containing the will. The court declined to treat the
writing on the envelope as a valid signature since it was simply intended to identify the contents of
the envelope and not to give effect to the will contained therein.
N.B It would appear that the case provides conclusively that the intention of the testator while
signing the will is pre-eminent over the position of the signature in detecting the validly of the will.
Attestation of a will
b. The will must be signed and attested by two witness
In Re Benjamin (1934) 150 LT 417, Court held: that the testator is not bound to inform them
that what he's signing is his will. This is because strictly speaking what they are required to witness
is not the will but the testator's signature when it's being written or after it has been written.

In Smith V Smith [1934] 150 LT 417, Court held: that the witnesses could see the testatrix
writing (when she signed her will) but when she invited them to sign the will, she covered her
signature with bolting paper, thus making it invisible to them. Court held: that the will was duly
executed.

NB. The will be deemed to have been properly executed where it emerges that a witness though in
the room was unaware that the testator was signing the will. In Brown V Skirrow (1902), T took
her will to a shop to have it witnessed by the shop assistants (WI and W2), T signed the will
observed by WI but W2 was busy serving a customer and paid no heed when T signed it. W I and
W2 then attested the will but it was Held to be invalid on the ground that T had not signed it in
the presence of W2 even though W2 had been in the room when T signed.
c. Who may witness
A blind person can’t be witness. In Re Gibson (1949), Court held that a blind person can’t
ordinarily be a witness since he has no visual perception of the act of signing if the signature is
made in his presence or of the testator’s signature if it’s acknowledged in his presence.

It’s however, arguable that where the whole will or the testator’s signature is in brail, a blind
witness will be suitable in the context of acknowledged in his presence.

In Hudson V Parker (1844), Court remarked that "the witness should see and be conscious of
the act done and be able to prove it by their own evidence, if the witnesses are not to be mentally
as well as bodily present, They might as well be asleep or intoxicated or of unsound wind"

Witness must sign or acknowledge; in fact they needn't sign in each others' presence but this was
refused in Brown V Skirrow (above).

NB. The above cases should used in light of S.50 of the SA of Uganda

In the Goods of Ashmore (1843) and Estate of Bullock (1968) the principle is that although its
common practice for a witness to sign the will by writing his name or his signature, his initials or
some other mark made by him may serve the same purpose.

Moreover, where a witness uses other words intended to identify him as the person attesting the
will the court may accept them as his signature. In the Goods of Sperling (1863) the words
employed were “servant to Mr. Spering” and these were held to be a signature.

According to Roberts V Phillips [1855] the signature of the witness may appear any where on
the will, and therefore a witness need not sign the will at the foot end thereof.

d. Signature on the testator's behalf

Where a will is signed by some other person in the T's behalf, this must be done in his presence
and by his own direction. Provided this is the case, it makes no different that the person signing
the will also an attesting witness (Smith V Harris 1848) matters also not that he signs his own
name rather than that of the testator (in the Goods of Clarke 1839)

In matters also not that he signs his own name rather than that of the testator (in the Goods of
Clarke 1839)
The testator may sign the will himself but rely on another person to guide his hand along the
paper especially where the testator seriously ill or blind (Fuller V Kee (1961).

Attestation
IN Re Groffman (1969) I WLR 733, Court held that the will had not been duly executed
because his signature was not visible. The facts are; the testator (here T) met at a house of one
of their testators' friends. During the evening, the T said to of the friends that he would like
them to witness his will at the same time gesturing towards his coat where the folded will was.
As there was no convenient space in the lounge where they were, one of the friends (witness)
led the T to the adjacent dinning- room, the other witness remaining in the lounge. The T
removed the will from his pocket revealing his signature thereon and the 1" witness left the
lounge to the dinning room where he signed the will beneath the I st witness' signature, later the
T died. The plaintiffs as executors of the will sought to propound it and the defendant, the T's
widow claimed that the will had not been properly executed. Court held: that there could be no
acknowledgement within S 9 of the Will's Act 1837 unless at the time of acknowledgment the
attesting witness either or at the very least were capable of seeing a will upon which there was a
signature, that on then facts, non of those conditions had been satisfied and that accordingly the
will had not been validly executed and would be pronounces against.

The law requires at the time of acknowledgment, the witness must be capable of seeing, or had the
opportunity of seeing the signature. In Blake V Blake (1882) 7PD 102 Court held ineffective the
will where the testatrix signed the will and asked her 2 attesting witnesses to add their signatures
but covered her own signature with blotting paper, so they could not see it. Sir George Jessel MR
asked the question as follows, whether the testatrix acknowledged her signature by the witnesses?
And stated “what I take to be the law is correctly laid down in Jarman on wills 4th edition, P 108,
thus there’s no sufficient acknowledgement unless the witnesses either saw or might have seen the
signature not even though the testatrix should expressly declare that the paper /0 be attested by
them is his will"

According to the decision in the Goods of Gunstan (1882) PD 102, to constitute sufficient
acknowledgment within Will's Act 1837, (equivalent to our SA), the witnesses at the time of
acknowledgement should see or have the opportunity of seeing the signature of the testator and if
such be not the case, it's immaterial whether the signature is, in fact there at the time of attestation
or whether testator says that the paper to be attested is his will or that his signature is inside the
paper.

Further, in Re Collin G (1972) I WLR 1440, the testator while a patient in hospital started to sign
his will in presence of a nurse and another patient both of whom he had asked to act as his
witnesses. Before he ad completed his signature, the nurse left to attend to a patient elsewhere in
the ward. During her absence the testator completed the signature and the other patient who had
been present during the whole exercise signed as a witness in presence of the testator, when the
nurse returned too, the other patient and testator acknowledged their signatures to her and she
signed as a witness. The issue was whether the testator's signature complied with S 59 Wills Act
1837? Court held: that at part of the testator's name which was subscribed before the nurse left
was not the signature of the testator nor was it a mark intended to represent the name and
therefore the signature did not comply with the requirements of S 59 of A 1837. On issue 2, which
was whether or not the writing of part of the signature of the testator constitutes a signature in
those circumstances within the meaning of the Act? Un-goed Thomas J: held that it was essential
that testator should have signed the will or acknowledged his signature before either of them had
attested and subscribed to the document.

REVOCATION OF WILLS 8.5 7-6 (SA)

As was held in Vynioirs case (1609) 81 a will by its very nature is revocable even though testator
declares it irrevocable. The succession Act provides for four methods of revocation, viz.
a) Revocation by marriage
b) By another will or codicil
c) By some writing declaiming the intention to revoke the will and duly executed
d) Revocation by the testator his agent in his presence and under his instructions burning,
tearing or otherwise destroying the wick with which intention of revoking it
Revocation by some other writing
Under Sec. 3 (SA) marriage perse does not make one acquire an interest in the part of the the part
of the maries nor does it incapacitate any person from doing any act in respect of his/her own
party which she /he could have done if unmarried.

Under Sec. 56 every will shall be revoked by the marriage of the maker. It provides that every will
shall be revoked by the marriage of the maker, except a will made in exercise of a power of
appointment, when the property over which the power of appointment is exercised would not, in
default of the appointment, pass to his or her executor or administrator or to the person entitled
in case of intestacy. In Farazi Rwabaganga V Donato (1977) HCB 244 court held .that at the
time of deceased's death, there was a valid marriage between the deceased and the plaintiff. In
terms of S 56 every will is revoked by the marriage of the maker, therefore since the will in court
was made in August 1966, it stood revoked when the deceased married the plaintiff in 1970. That
there being no subsequent will the deceased would be regarded having died intestate.

The exception to this rule is a will made specifically in contemplation of the marriage and that
marriage takes place then the will won't be revoked by that marriage.
Salis V Jones (1935) Aller 872
Mette V Melte (1859) ISW & TC 416
Warter V Warter (1890) 15 PD 152

Note that marriage includes not only a valid marriage but also one that is avoidable. Avoidable
marriage revokes a will, whether it's eventually annulled or not. In Re Roberts (1978) J was a
beneficiary under T's will executed in 1973 when T was died in 1976 and E applied for grant of
letters of administration claiming that T had died intestate. J contended that the marriage was void
and did not therefore revoke the 1973 will as T was suffering from senile dementia when it took
place. Court held that such a condition would make the marriage voidable and that an order
annulling it would not operate retrospectively and would not affect the revocation which occurred
from the date of marriage

A marriage that is void abinitio can't revoke an earlier will because in words of Lord Greene MR
in Derenevile V Derenevile (1948) "it will be regarded in every court as never having taken
place."

In Mette V Mette (I859) for instance, T's marriage to his late wife's sister which was void because
it fell within the prohibited degree of affinity, was held not to have revoked his earlier will (also
warter V Warter)

However, there are two exceptions to the above rule, these are;
a). Where the testator made a will in expectation of marriage, a will expressed in contemplation
of marriage can't be revoked by solemnization of that marriage. This if T made a will which
he expressly stated to be in contemplation of his marriage to W, it would not be revoked if T
then marries W. In Salis V Jones courts accepted the decision in Re-Knight (1944) that a
will was made in contemplation of marriage if it stated that T's entire estate would go to a
person referred to as his fiancee or future wife
b). Where the testator employs the will to exercise a power of appointment as stated under S. 56
(2) of the SA. It's to ensure that an appointment by will is revoked by T's subsequent
marriage only if where the testator's new family might benefit from the party in default of
appointment

Revocation of a will by another will or codicil. If the provisions of the latter will or codicil are
wholly inconsistent with those of the prior will/codicil is completely revoked. See Re Bryan (1907)
125,

In the Estate of Wayland (1951), a revocation clause which was expressed "to deal with my estate
in England" was held not to revoke an earlier will disposing of Belgian party.
If the provisions are only partially inconsistent so those parts of the prior will or codicil not
affected by the inconsistency remain unrevoked. The issue to address in such cases is which
provision the testator intended to take effect at his death. This is a question of construction.
According to S.610fthe SA, It is not necessary that any technical words or terms of art shall be
used in a will, but only that the wording shall be such that the intentions of the testator can be
known from the wording.
In short court considers the words employed to discern the intention of the maker as much as
possible. The meaning in any clause of a will shall be construed within the context of the entire
document i.e. as a whole. The will is supposed to be read in context and therefore all its parts are
to be construed with refer to each other s as espoused in S. 69 of the SA.
PLIZ Read sections 61 to 77 of SA, on interpretation of a will.

Revocation by some other writing

Under, S.57 SA, it is provided that no unprivileged will or codicil, nor any part thereof, shall be
revoked otherwise than by marriage, or by another will or codicil or by some writing declaring an
intention to revoke the unprivileged will or codicil, and executed in the manner in which an
unprivileged will is in this Act required to be executed, or by the burning, tearing or otherwise
destroying of the will or codicil by the testator, or by some person in his or her presence and by his
or her direction, with the intention of revoking it.

In Re Sparkling Estate (1938) to ALLER 345, a letter signed by a testator and duly attested
addressed to a bank manager to destroy the will was held to revoke the will. That the will was
revoked as soon as the letter was duly executed

N.B for revocation to be effective by writing, the writing should be duly executed

4. Revocation by destruction
Here to distinct elements are required i.e.
a) an act of destruction
b) an intention to revoke
In Cheese V Lovejoy (1877) 2Pd 251 at 253, a will was cancelled by drawing lines with a
pen through some parts of the will. At the back of the will the testator wrote; all these are
revoked; thereafter, he threw the will among a heap of waste paper in the corner of his
living room. His house maid retrieved it and kept it until the testator's death 7 years later.
Court held: that the will was not revoked since the testator had not done any act of
destruction.
Accordingly, symbolic destruction may not be sufficient. In order to revoke a will, it may not be
necessary to destroy the whole will; however, there must be destruction of so much of a will as to
impair the whole will e.g. if the testator's signature is cut out or torn of or so obliterated that it
can't be made out or if the signatures of the attesting witnesses are destroyed by any of these
methods.
The act of destruction must be carried out by the testator him self or by another person in his
presence and by his direction. In Gill V Gill (1909) PI 57, the testator's will was torn up by the
testators wife in a fit of temper in the testators presence but without the testators' direction and
court held that the will was not revoked.
Re Goods of Dadds (1857) pea and SW 290
Re Adams (1990) Estate of Krenor (! 965) 110 SJ 18

Where court construes the action as mere cancellation this won't affect the revocation as show in
Cheese Lovejoy. The court asked the question is the act of destruction such as to impair the
entirety of the will?

In Hobbs V Knight (1838), the will had been so heavily scored over that the signatures of the
testator and witnesses could not be read. The court considered will.

In Re Adams (1990) I Ch 601, the testator had scribbled over his signature with a ball point pen.
The court considered the extent of the obliteration and court asked the question, could the
signature be will.

If the signature is still legible will may be still regarded as admissible as in Re. Godfrey (1873). In
Re. Goods of Dadds (1857) where T, shortly before her death told one of her executors of her
desire to revoke a codicil to her will. The codicil was brought to her bedroom and she asked for it
to be burnt. There was no fire in her bedroom, it was taken to a room with a fire and burnt there
as it was not present when the codicil was burnt, and court held that it was not effectively revoked
by destruction as T was not present when the codicil was being burnt. Similarly in the estate of
Dekremer (1965), where T instructed his solicitor by telephone to destroy his will and the
solicitor did so in T's absence, court held that no revocation was done.

The testator must have intention to revoke. Intention can be in ferried from the act of destruction.
However, destruction by accident or mistake does not amount to revocation.
In the Good of Boehm [1890] P 247, a testator in giving instructions for the preparation of his
will directed that a bequest of 10001 should be given to each of his unmarried Georgiana and
Florence. The conveyancer who prepared the will by inadvertence inserted the name Georgian in
both of the clauses of the will relating to the gifts to the unmarried daughters and omitted the
name of Florence altogether. The draft was not read over to the testator at any time and the error
was not brought to his notice. Court held that the will omitting the name of Georgiana in the
second clause of the gift might be granted to the executors. Jeune J stated thus, "mistake is to be
regarded as a question of fact depending on the circumstances of each case and there's now no
difficulty in striking out a clause or a single word, if shown to have been inserted by mistake. If a
person by fraud obtained the substitution of his name for that of another in a will, it would be
strange if his name could not be struck out, although the rest of the clause in which it occurred
becomes thereby meaningless.

The destruction must be at the testator’s direction

The effects evident in Mills V Millward (1980) where T showed her will to her sister in law who
tore it up in anger because neither she or he husband were beneficiaries. The sister in law then
apologized and urged T to male a new will but T refused and died without doing so. Court held
that the original will had not been revoked. A similar case was Gill [1909] where the will was torn
up by T’s wife in a fit or auger.

Other reasons include

a). A will destroyed by the T when his metal state was such that he could not have
comprehended what he was doing, the revocation will be ineffective. See Brunt V Brunt: Re
Aynsley.
b). The intention to revoke must subsist till the mode of destruction chosen by thestator has
been completed. E.g. if T casts his will into a fire with a view of destroying it but Z who is in
the room with him rescues it slightly scorched and persuades T not to destroy it , this will is
not revoked. In Perkes V Perkes (1820), T during a quarrel with one of the beneficiaries
took out and began to tear up his will. He had torn it into four parts when he was calmed
down by the pleas of the beneficially and a bystander. He then put the will back into his
pocket and later observed that it was no worse. Court found that T's intention to revoke had
 ceased before destruction was completed and accordingly held that the revocation was not
effective

Mental capacity
In Re Aynsley [173] and Brunt V Brunt [1873] the principle is that if the will was destroyed by
the T when his mental state was such that he could not have comprehended what he was dong, the
revocation will be ineffective.

Intention to revoke
In Collins V Elston, the testator was a ware of the inclusion of the revocation clause but misled
as to its
REVIVAL OF WILLS
This can be by re-execution of a revoked will or by a codicil only executed with the intention to
revoke the will under S 60 (SA). S 60 (I) of the SA provides inter alia, that no wi1l or codicil, nor
any part of it, which has been in any manner revoked, shall be revived otherwise than by the
re-execution of the unprivileged will or codicil, or by a codicil executed in the manner hereinbefore
required, and showing an intention to revive it.

It should be noted that under S 60 (2) of the SA, when any will or codicil which has been partly
revoked, and afterwards wholly revoked, is revived, the revival shall not extend to so much of it as
was revoked before the revocation of the whole thereof, unless an intention to the contrary shall
be shown by the will or codicil.

Solicitors' duty of care in preparation of a will

If a testator employs a solicitor to prepare a will for him containing a gift to benefit and owing to
the solicitors negligence the gift to the beneficiary is void, the solicitor is liable in damages to the
testator both in contract and tort. See Ross V counters (1980) Ch 297 at 306-8

CONDITIONAL WILLS
Occasionally, a testator will declare in his will that it's to take effect only on the fulfillment of a
condition happening of an event. Thus, where a will is framed in such terms, it won't come into
operation on the testator's death unless the condition has been fulfilled or the event has duly
occurred. This is seen in Re Thomas (1939) 2 ALLER 567, where the will was qualified by
codicil which stated that "if I survive my wife and in won't under her will " In the Goods of
Robinson (1879) LR P 80 at 171 where the will began with the words "in case anything should
happen to me during the remainder of the journey", and Lindsay V Lindsay (1872) where the
material phrase was “if I should die at sea or abroad”
It some times happens that a will refers to a future event which mayor not occur, not as a
condition to be fulfilled before the will can take effect, but merely to show the reason why the will
was made. The courts have held in cases like in the Goods of Dobson (1865) and Re vines (1910)
that in such instances, the fact that the stipulates event has not occurred wont render the will void.

In the Goods of Dobson (1866) LR IP & D6, the will commenced Id with the words "in case
any fatal accident happening to me, being about to travel by railway I hereby leave…….”The
testator survived the journey but the will was nevertheless held to be valid since it was not
intended to be conditional on the testator surviving the journey.

However, where the wording of the will favours the conclusion that it is conditional, court may
deduce from the surrounding circumstances that the testator did not in fact intended it. In the
Goods of Cowthorn (1863) where the testator commenced the will With the words "in the e
prospect of along journey, should God not permit me to return home I……..make this my last
will” the will was drawn up before the journey but was not executed until several months after the
testator's return. Court held that it was not conditional on the journey and upheld its validity.

Joint wills/Mutal wills

Joint or mutual wills were intended to remedy the unconsciousable revocation of a will in certain
circumstances. There are three circumstances to be satisfied for the doctrines to apply

Mutual wills made pursuant to an agreement

Under this head, two or more persons make an arrangement as to disposal of some or all of their
property on death and make wills pursuant to the arrangement (often husband wife). It may take
the form of joint wills or separate will which may confer benefits. E.g. life interests and remainder
to beneficiaries. It is not essential that the other person receives the benefit. In Re Dale p. 994)
Ch 31, Monitt J held that if two testators, for example husband and wife agreed that each should
leave his/her property to particular beneficiaries like children, the surviving testator's property
would be subject to a trust for the beneficiaries named in the will.

Agreement for survivor to be bound by the arrangement.

This involves an agreement between the parties not to revoke their wills. ln Re Hugger [1930) 2
CJ 190, W and F made mutual wills which contained a declaration by them that it should not be
altered or revoked save by their mutual agreement. It was implicit in this declaration that the
parties had agreed that the survivor should be bound by this agreement. In an action against the
husband, court held that from the death of W, court held that from the death of W, the property of
H was possessed was subject to a trust under which the legatees in remainder took vested interests.

From the above case, it can be submitted that parties may agree that property belonging to each
other or spouse shall pass to the other spouse with a substituting provision to the effect that if the
other spouse dies first, the property shall devolve on their children as was the case in Re Cleaver
(1981) WLR, H who already had children, married M. M and H later executed wills in which he
property of each was left to the other with a substitutionary gift in favour of H's children. Hand W
later amended wills reducing M's share (child) to life interest. W made several wills after H died
and in the last will left all property to M and her husband and nothing to H's children. Nourse J
held that Hand W had executed mutual wills and that W's executors were bound to hold her
interest on trust for the benefit of the three children as provided in the wills.

This requirement can also be satisfied by an agreement to leave property by will. In Re Green
(1951) Ch 148, a husband and wife made mutual wills which recited an agreement that if the
survivor had the use of the other property for life without any liability to account, the survivor
would by will provide for the carrying out of the wishes expressed in the other's will.

The fact that parties agree to make and actually did make wills at the same time and in substantially
identical terms is not sufficient to establish that they agreed that the survivor should be bound.
Thus, in Re Oldham [192651 Ch 75, Hand W made their wills on the same day each giving the
other an absolute interest with the same alternative gift in case the other died first. The H died first
and W took H's property under his will. She (w) later remarried and died having made It new will
which provided for second husband and which departed entirely from the terms of her earlier will.
Court held that the doctrine of mutual wills was not applicable and W's new will was upheld. The
fact that the two wills were made in identical terms does not necessarily connote an agreement
beyond that of so making.

3. Binding event occurring.

This may include the following;
a). When the agreement was made.
b). When the first party died leaving his mutual will unrevoked.
c). When the survivor received a benefit under the first will. However, in Re Dale, court held
that the doctrine of mutual wills may apply even when the survivor gets no benefit under the
will of the first party to die
d). When the survivors dies

What happens in the event that the three requirements are satisfied and the other is in
breach?
If the three requirements are satisfied, equity enforces the arrangement against the survivor by
treating him as holding the property concerned on a constructive trust to apply it in accordance
with the mutual will. This is espoused in Halsbury's Laws of England 3rd edition Volume 39
paragraphs 346-7.

The general principle applicable to mutual wills is laid down in Mitchell [195 14 MLR 136,
wherein it is stated that "where two persons have made an arrangement as to the disposal of their
property and executed mutual wills in pursuance thereof on the death of one of them, without
having revoked this will, the arrangement crystallizes into a contract. Accordingly, the personal
representatives of the survivor take the survivor's property upon trust to perform the contract. "
The same position was upheld further in Dufour V Pereira (1769) I Dick, 416, where Lord
Camden stated that "the instrument itself is the evidence of the agreement and he that dies first
does by his death carry the agreement on his part into execution. If the other refuses, he is guilty
of fraud, can never unbind himself and becomes a trustee for no man shall deceive another to his
prejudice. By engaging to do something that is in his power, he is made a trustee of the
performance and transmits that trust those that claim under him.
Either party may revoke his will during their joint lives, at least on giving notice to the other.
Notice is required to give the other party an opportunity of revoking his will also, if he wishes and
does not seem to be necessary where the revoking party is the one first top die. In Stone V
Hoskins [19051 P 194, court slated that "a mutual will is a revocable act. It may be revoked by
joint consent clearly; by one only, if he gives notice it can admit. But to affirm that, the survivor
(who has deluded his partner into this will upon the faith and persuasion that he would perform
his part) may legally recall his contract either secretly during the joint lives or after at his pleasure; I
cannot allow. If not revoked during the joint lives by open act, he that does first dies with the
promise of the survivor that the joint will shall stand. It is too late afterwards for the survivor to
change his mind because the first to die person's will is then revocable."

In Re Dale (1994) Ch 31, H and W executed wills in 1988 under which each left all their property
to their son and daughter equally. H died a year later. In 1990, W made another will leaving 300
pounds to her daughter and all her property to her son. Moritt J held that the doctrine of mutual
wills applied to the present case through W had received no benefit under H’s will.

However, where two persons make mutual wills simultaneously and in identical terms, it won't be
treated as a mutual will unless there is evidence in the will that their were agreements between the
parties to the effect that their wills would be mutually binding. This clearly surfaces from the case
of Goodchild V Goodchild (1995), where H and W made identical wills on the same day leaving
their respective estates to each other and on the death of the survivor to their child, gray. On W's
death, her estate passed under her will to H. H remained and made another will leaving his entire
estate to his new wife E and also made ;,or his sale executrix. On H's death, gray claimed that
Hand W had made mutual wills in his favour and sought declaration that E held the estate by H on
trust for him. Court held that although the wills were made more or less identical, they were not
mutual wills, since the court was unable to find clear evidence of agreement between Hand W that
their respective wills would be mutually binding.

N.B In this text wherever H appears, it refers to husband and W respectively wife.
In contrast, in Re Estate of Heys [1914) P 192, Hand W joint tenants of leasehold properties,
executed mutual wills 1907, the clear arrangement being that those wills were to be irrevocable. In
1911the H died and his will was proved. Later in 1912, W executed a codicil to her will and in
1913, she executed fresh will. These later documents were executed by W in breach of a definite
arrangement between herself and her H in 1907 when their mutual wills were executed. Court held
that the agreement or arrangement between the husband and wife to execute the mutual wills and
the execution of those wills, severed the joint tenancy in property in question and created a
tenancy in common. Secondly, that the will of 1907 was revocable and that the will of 1913 should
prevail as the true last will of the deceased W).

IN CORPORATION OF DOCUMENTS
A document which its it self has not been duly executed will be treated as part of a duly executed
will where it is incorporated by reference to the will. The doctrine of incorporation by reference
applies if "three conditions are fulfilled. These include;

a). The document must be in existence at the time the will is executed. In Singleton V
Tomlinson (1878) 3 App. Cas 404, T in his will directed his executor to sell four land
estates referred to in the will. Details of these estates were set out in a schedule signed by T
which bore the some 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. Court held that there
could be no incorporation by reference if it had not been established that the document was
in existence when the will was executed.

In University College North Wales V Taylor [1908] P 140, reference in the will was made to
"any memorandum among my papers, written or signed by me" Court held that the document of
incorporation could not apply since the will never described the relevant documents in terms
which signified that the documents were in existence at the time the will was executed,

Further, in the Goods of Sunderland" (1886) 1 P & D 30, court held that there could be no
incorporation by reference where the will spoke of "any existing or future document signed by
me"
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's in existence at the
time the will is executed, it can't be incorporated into the will. E.g. University College of North
Wales V Taylor (supra). Similar example can be found in the Goods of Sutherland (I866)
Held: that there could be no incorporation by referred where the will spoke of "any existing I
future document signed by me"
c. The document must be clearly identified in the will.

Unless the terms used in the will to describe the document arc clear enough to enable it to be
identified, incorporation by reference may not be feasible. Thus, in the Goods of Garnet (1898) T
alluded in his will to paper numbered 1-6 which he said contained his testamentary intentions. The
will was placed in a drawer with many other documents but it was impossible to determine which
of these documents corresponded to paper 1-6. Court held: that none of the documents could be
incorporated into the will. However, as the Privy Council acknowledged in Allen V Maddocks
(1858) 11 Moo P477, where the words employed are inconclusive, the matter may, in appropriate
circumstances, be resolved by admitting parole evidence to establish which document the testator
intended to incorporate into the will.

BEQUESTS AND LEGACIES

These are normally used inter changeably. A legacy is a gift of personal property by will. The
person to whom the property is given is called legatee and the gift or party is called the bequest

Legacy actually refers to gifts of personal property, while the word 'devise' refers to real estate. The
words may be construed interchangeably or applied indifferently to either personal property or will
estate if the context of the will shows that such was the intention of a testator.

Specific legacies
The Succession Act provides for legacies; it provides for specific legacies under sections 129-136.
A specific legacy is a gift of something which the testator intends his legatee to enjoy to the
exclusion of every other thing however much that other may resemble the same.

The Succession Act also provides for demonstrative legacies under sections 137 and 138.Where a
testator bequeaths a certain sum of money or a certain quantity of any other commodity and refers
to a particular fund or stock so as to constitute that fund or stock, the primary fund or stock out
of which the payment is to be made is said to be demonstrative.

A specific legacy is distinguished from a demonstration legacy in the following ways

1. Where the legacy is directed to be paid out of specified property, it's specific.
2. Where the legacy is directed to be paid out of specific property, it's demonstrative

A DEMPTION OF LEGACIES
When an item specifically bequeathed does not belong to the testator, at the time of his death, or
has been converted into property of a different kind the legacy is a deemed. I.e. it can't take effect,
by reason of the subject matter having withdrawn from the operation of the will.

However, a demonstrative legacy can't be a deemed because of the failure of the fund from which
it was supposed to be obtained. The legacy would be entitled to receive the legacy out of the
general assets of the testators.

Simplified description of the terminologies and additional data

a). Specific legacy: is a gift of specified personal property which forms part of the testator's
estate at his death but is severed/distinguished from the totality of his assets. As a matter of
construction courts are inclined to regard the use of the word "my" or other possessive
words as indicative of a specific legacy e.g. "my rolls Royce silver shadow to A" my books on
succession to A" etc "I give to E my" etc
b). General legacies. This is a gift of personality which is not a bequest of any specific part of
the testators’ estate and is to be provided for out of the general assets owned by him at his
death e.g. shares in a company. Unlike specific legacies, the subject matter of general legacy
need not form part of the testator's estate at his death. E.g. T in his will leaves to B" a dozen
bottles of 1936 vintage (1879) that the legacy in C's favour is thereby a deemed. By the same
token if x repays £ to T the legacy is a deemed to the extent of the amount repaid. See Aston
V wood (1874)
c). T makes a will devising "my dwelling house at 100 mount pleasant drive, Swansea to D”. The
devise is a deemed if the house is repossessed because T defaults in his mortgage payment or
sold by T as happened in Re Bagots settlement (1862).
d). Selling of the party premises of business from which amounts are to be demanded to pay the
 gift

However there's no ademption of general and demonstrative legacies. The above won't fail by a
ademption in the same way as specific one. Thus, if T's will provides that "I hereby leave £ 3000 to
B I and 500 shares in surebet into to B2". These legacies will be valid even if at T's death he
neither owns £ 3000 in cash nor any shares. As seen from Boathamley V Sherson in such
circumstance, T's executors will be obliged to have recourse to his general assets in order to give
effect to these legacies

Note however, that in the case of the general legacy of shares in surebet Ltd, the gift is
nevertheless liable to fail for uncertainty where, for instance, the company wound up in T's life
true so that it becomes impossible to obtain its shares or ascertain their value at the time of his
death. See Robinson V Addison (1840)