THE LAW RELATING TO CHILDREN

1. Definition of a child.
2. Custody and maintenance of children.
3. Adoption of children.
4. Proof of paternity or declaration of parentage.
5. Guardianship.
Law applicable:
1. 1995 Constitution of the Republic of Uganda.
2. The Children Act, Cap 59.
3. The Children (Amendment) Act, 2016.
4. Employment (Employment of Children) Regulations, 2012.
5. National Council for Children act, Cap 60.
6. The Children (Adoption of Children) Rules SI 59-1
7. The Children (Family and Children Court) Rules SI 59-2
8. African Chatter on the Rights and Welfare of the Child (UN, 1989).
1. DEFINITION OF A CHILD
Under Article 257 (c) of the Constitution and Section 2 of the Children Act Cap
59, a child means a person below the age of eighteen years.
The Constitution in not so express terms also covers under Article 22 (2) an
unborn fetus as a child. It gives a prohibition on abortion by giving such an unborn
child a right to life.
The case of McKay v Essex Area Health Board [1982] 2 ALLER 7712 ALLER
771, considered with an unborn child has any rights including that to life. In this
case, a mother and child claimed that a doctor not issuing abortion advice when a
serious disability is diagnosed during pregnancy deserved recompense in the form
of damages for “suffering entry into a life in which her injuries are highly

1|Page
debilitating.” The mother and child lost the case. The Court’s reasoning was that a
fetus is not yet a human being to have a say on whether they should live or not.
1.1. Rights of children.
The rights of children can be found in Article 34Article 34 of the Uganda
Constitution.
These rights are:
o Right to know and be cared for by their parents or those entitled by
law to bring them up.
o Entitlement to basic education which shall be the responsibility of the
state and the parents of the child.
o Right to medical treatment. (Also read Article 14 of the African
Chatter on the Rights and Welfare of the Child and Section 5(f) of
the Children Act Cap 59 (as amended).
o Protection from social or economic exploitation and shall not be
employed in or required to perform work that is likely to interfere
with their education or harmful to their health or physical, mental,
spiritual, moral or social development. (Also read Sections 6 and 7 7
of the Children (amendment) Act 2016 and the Employment
(Employment of Children) Regulations, 2012.)

1.2. The child’s welfare; the welfare principle:

The term welfare is not defined in the Children Act and so is it not in its recent
amendment.
Although the welfare principle is the cornerstone of child law, it was difficult to
find a judicial definition of what welfare is till around 1893. Lindley LJ in Re
McGrath (infants) [1893] 1 Ch 143 made the first attempt at finding a meaning

2|Page
for the term welfare. He said, “…the welfare of a child is not to be measured by
money alone nor by physical comfort only. The word welfare must be taken in its
widest sense. The moral and religious welfare must be considered as well as its
physical be disregarded.” (Also look at Loung v Ward [1945] 2 ALLER 338

Bromley gives the New Zealand case of Walker v Walker and Harrison [1981]
NZ Recent Law 257[1981] NZ as the best case that defines what welfare is.
Hardy Boys J in this case said,
“‘Welfare’ is an all-encompassing word. It includes material welfare, both in the
sense of an adequacy of resources to provide a pleasant home and a comfortable
standard of living and in sense of an adequacy of care to ensure that good health
and due personal pride are maintained. However, while material considerations
have their place, they are secondary matters. More important are the stability and
security, the loving and understanding care and guidance, the warm and
compassionate relationships that are essential for full development of the child’s
own character, personality and talents.”
Ugandan case law has also kept to these set principles of common law while
keeping within our statutory provisions.
(Read Nakaggwa v Kiggundu (1978) HCB 310;
George Nyakairu v Nyakairu (1979) HCB 261 and (1978) HCB 310;
George Nyakairu v Nyakairu (1979) HCB 261 and
Wambwa v Okumu [1970] EA 578Okumu [1970] EA 578.)

The work of court when applying the welfare principle is not to deal with what is
ideal for the child but with what is best that can be done in the circumstance.
In Clarke-Hunt v Newcombe (1983) 4 FLR 482, the appellate court had this to
say of the trial judge, “There was not really a right solution; there were two
3|Page
alternative wrong solutions. The problem for the judge was to appreciate the
factors in each direction and to decide which of the two bad solutions was the least
dangerous, having regard to the long term interests of the children.”

Although the Children Act (as amended) does not define what welfare is, the 2016
amendment introduced a checklist of items that the will guide a court or any person
faced with making a legal decision for a child.
What the Act means by “paramount consideration” was explained by Lord
McDermott in J v. C [1970] AC 668J to mean a consideration which “rules upon
or determines the course to be followed”.

The checklist is in Section 3 of the 2016 amendment to the Children Act. It should
be noted that the check list is not exhaustive. It is only meant to provide a means
by which similarity in exercising the wide discretion in determining what is best
for the child.

Also worth noting is that the child’s view is not expressed as determinative of the
exercise of the discretion of a judge or any person, though the older the child the
more persuasive their views will be.
2. CUSTODY AND MAINTENANCE OF CHILDREN
2.1. Custody:
Custody concerns the legal rules governing the right of children regarding whom to
live with. It means the sum total of the rights which a parent may exercise over
their child. The rights subsist until a child attains the age of majority. In Hewer v
Bryant [1970] 1 QB 357, the British Court used the following words in relation to
custody,

4|Page
“In its wider meaning, the word custody is used as if it were almost the equivalent
of guardianship in the fullest sense whether the guardianship is by nature, by
nurture, by testamentary disposition, or by order of a court…I use the words
fullest sense because guardianship may be limited to give control over the person
or only over the administration of the assets of an infant…Adopting the convenient
phraseology of counsel, such a guardianship embraces a bundle of rights or, to be
more exact, a bundle of powers which continues until a male infant attains (the
age of majority) or a female infant marries. These include the power to control
education, the choice of religion and the administration of the infant's property.
They include entitlement to veto the issuance of a passport and to withhold consent
to marriage. They include, also, both the physical control of the infant's personal
property until the infant attains years of discretion....”

Article 31 (4) enjoins a duty upon parents to care for and bring up their children.
This means that the parents of a child have the first right to custody of their own
children. It is when parents live apart, are unmarried or divorced or one or both of
them are dead that the issue of who should have custody of children.

According to Section 73 (1) of the Children Act (as amended), the court may, on
application of a sole applicant or joint applicants, grant custody of a child on such
conditions as may be determined by the court. The Court will take into
consideration the aforementioned guiding welfare principle.
The Children Act generally has two types of custody. These are; Interim custody
by Court and custody by agreement.
Interim custody is given to either a probation and social welfare officer, mother,
father or guardian of a child on application to a court of competent jurisdiction
pending the determination of the main suit for custody of such a child by Court.
5|Page
According to Section 73A, this order is made where the court is satisfied that the
child is suffering or likely to suffer harm if the order is not given or if it is in the
best interests of the child.

Custody by agreement is provided for under Section 73B of the Act. Here the
parents of the child enter into a written agreement to determine which of them shall
have custody of the child.
Such an agreement is enforceable in a Court of law unless it is determined by the
Court that it was made not in the best interests of the child, was made under duress
or made fraudulently.

Please read:
1. RM [1967] 3 ALLER 1071.
1. Muhammed Hassan v Nana Binti Mzee [1944] 11 E.A.C.A 4
2. Samwiri v Rose Achen [1987] HCB 297.
3. George Nyakairu v Rose Nyakairu [1979] HCB 261.
Court held 1.That in applying the welfare people, court had to consider other
ancillary circumstances e.g. such matters 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.
4. Nakaggwa v Kiggundu (1978) HCB. Court recognized the welfare of the
child as the paramount consideration in custody proceedings and held as
follows;
Odoki acting Judge while deciding the case of Nakaggwa v Kiggundu held
that the term welfare is incapable of exact definition but while talking about
6|Page
 custody, it means that circumstances affecting the well-being and up-
bringing of the child have to be taken into account and if so decided, Courts
must place itself in the parents shoes and do what a wise parent acting in the
interest of the child would do.

2. That in determining who should have the custody, its well established that
the paramount consideration is the welfare of the child, such factors as the
father’s natural and superior right to the custody over the child as against the
mother, the claims of other relatives and the conduct of the parties among
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
relation to custody of a child 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 (1945) 2 ALLER 338)
5. Wambwa v Okumu [1970] EA 578.
6. Re A (a minor) (residence order) [1998] 2 FCR 633.
Sometimes the Court may find difficulty in application of the welfare principle as
illustrated below:
The natural wishes of the parents:
Sometimes there are conflicts between the natural parents whose conduct is
unimpeachable and an outsider.
Custody is not necessarily granted to a natural parent. The usual rule of thumb is
custody is distributed taking into account the best interests of the child (ren). But
the natural parents as already noted have a strong claim to the child since as also
already noted, the child normally has a right to be with them.
An example case is Samwiri v Rose Achen [1987] HCB
7|Page
The conduct of the parties.
The conduct of the parties in relation to the child is of relevant importance in
determining what the best interests of the child would be.
However, the problem comes where the dispute is between the parents to the child
and a court has to decide how far such a dispute will affect the best interests of the
child and what effect it may have on the custody order.
In George Nyakairu v Rose Nyakairu [1979] HCB 261, the court considers this in
coming to its decision.

The age and sex of the child (ren)

Statements often appear in reports that as a general rule, it is better that very young
children should be in the care of the mother and older boys in the care of the father.
These are not principles or rules of law. They are simply judicial statements of
general experience whose application depends on the facts of each case. Such
example of a case is that of Wambwa v Okumu [1970] EA 578

Material advantages or benefits.

Welfare of the child should not be equated with material advantage but should not
be ignored either. The ability of an applicant to provide an adequate home for the
child is a determining factor.
In George Nyakairu (supra) the, father of the child had superior financial capability
as compared to the mother. The court while noting that this was irrelevant in a
custody application, it could not be ignored for if it could be proved that the father
could use his superior financial standing to cater for the welfare of the child better
than the mother who was financially inferior, then the father would stand a better
chance in being given custody of the child.
8|Page
Though this could be the case, the overriding factor is the interests of the child and
if the parent could use the material advantage to enhance the child’s welfare, then
it could be taken into consideration.
Also read; 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
proved that the father could use his superior financial position to cater for the
welfare of the child better 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 deteriorated as a result the 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.
Medical factors
The danger of psychological harm arising from a change in custody is now widely
recognized and forms part of the general knowledge and experience of judges. The
evidence of a psychiatrist or educational psychiatrist can be tendered where a
dispute about custody arises. If the child is suffering from some physical or
psychological malady or condition, then such evidence will be necessary and will
weigh heavily in court.
9|Page
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 aside 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 Kalisa v Kalisa (1974) HCB 108, following an order with separation in 1972 in
favour of the petitioner with custody of 2 children (6 ‘/2 boy) and (3 ‘/ 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 amount
to depriving the court of the power to act in the best interest of the children.
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.

10 | P a g e
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 Teopista Kayongo V Richard Sekiyivu (1978) HCB 240, court held that
where the custody of the children is taken away 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 5. 1 (o) 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 organisation. In reaching its decision under subsection (1) 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.
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
11 | P a g e
and only interfere with the well-being of the children and where necessary the
children would be free to visit the respondent.

In Karanu v Karanu (1968) E.A 36, on an exparte application, the High Court
granted 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.
Principles governing grant of custody
• Age; even prior to the Act, there was preference for the mothers to have
custody of children of tender years. See Nakaggwa V Kiggundu, Karanu V
Karanu (1975)EA 19
• Citizenship; where one of the parents is Ugandan and the other is not, there
is a preference for the Ugandan parent to have custody. Musinga v Musinga
[1993]VI KALR 360
• Financial means; Musinga v Musinga [1993] VI KALR 360, Hofman V
Hofman (1972) EA 100. In this case, the custody dispute over a child of six years
was resolved by granting the order to the mother. However, the father kidnapped
the child and took the child to Tanzania claiming that he had better financial
means. Court dismissed his claim and held that his financial means were irrelevant
since he could apply the same means to maintain the child while still in the
mother’s custody.
12 | P a g e
• Customary law; The Act indirectly addresses the aspect of extended family.
S.16 of the Act provides that once parents are dead, custody may be passed on to
relatives. However, for customary law to be considered, it should be done in the
best interest of the child. Nakaggwa V Kiggundu [1978] HCB 301, Wambwa V
okumu (1970) EA 578, Karuru V Njeri (1968)EA 361, Re GM(An Infant)
(1957)EA 714, Mohammed Hassan V Nana Mzee (1944)2 EACA 4
• Health of the parents; Williamson V Williamson [1993]4 KALR 16
• The conduct of the parents, Kalisa V Kalisa [1974] HCB 108
Rights of non-custodial parents
These flow from Article 34 which provides that parents have rights to live with and
bring up their children.
These rights include;
• The right to have access to the child(visitation rights)provided for in S.84(2)
where custody goes to one parent the other parent should have reasonable access to
that child unless it is shown that it is not in the best interests of that child. Aiiya V
Aiiya Divorce Cause no.8 of 1973, Kayongo V Sekiziyivu
In practice, visitation rights are not very easy to enforce as they are usually a
source of continuous conflict between the parents.
• The right to participate in the child’s upbringing s.86 Read S.86 and 87
Custody orders may be varied showing that the parent who has custody of the child
is either willfully mistreating or neglecting the child or has abandoned the child.
Read S.85. An order of custody can be appealed against although the Act does not
expressly say so.

2. Maintenance
According to Article 34 of the Constitution, children have the right to know and be
cared for by their parents or those entitled by law to bring them up. Section
13 | P a g e
5Section 5(1) of the Children Act imposes a duty upon a parent, guardian or any
person having custody of a child to maintain the child by making sure they are
educated, immunized etc.

When two parents separate, it is often determined that a child will primarily reside
with one of the separated parents, the other exercising access or visitation rights
from time to time. In those situations, the parent with the primary residence
responsibilities will incur most of the child-related expenses: food,
accommodation, clothing, groceries, utilities, transportation, school, lessons etc.

To reflect that inequity, the common law, and then by statute, has established that
each parent has a legal obligation to support their child. For the parent who does
not have the child living with her/him, this means equally or fairly contribute to
their child's expenses and needs. This is done by requiring that parent to make
monthly or other periodic (rarely a lump sum or annual payment) to the other
parent as a contribution towards the expenses of raising a child.

2.1. Who may apply for maintenance?

According to Section 76 of the Children Act, the mother, father, guardian as
against the biological parents and child may apply for maintenance.
This can be done during the subsistence of a marriage, during divorce proceedings,
separation or nullity proceedings, during proceeding for declaration of parentage,
after the proceedings for declaration of parentage and during pregnancy or before
the child attains eighteen years of age.
During such proceedings it is incumbent on the party seeking to have a
maintenance order a part of the orders given by the Court to formally state so in

14 | P a g e
their pleadings as the Court cannot vary the orders in such proceedings at a later
time to include maintenance orders.
See: Helen Monica Barrett v James Barrett [1961] 1 EA 503.

2.2. Enforcement and variation of maintenance orders.

Under Section 78 of the Children Act, on application at any time by the applicant
for maintenance or by the person against whom the order is made, the court may
after inquiring into the circumstances, make an order either increasing or
decreasing the amount of money previously ordered to be paid under the order.
The order is enforceable against the estate of the “payor” upon their death
according to Section 37 of the Succession Act. Also refer to Sections 78(3) and (4)
of the Children Act.
Under Section 78(2), an order for maintenance against a parent shall cease to have
effect on custody of the child being granted to that parent or other person in his or
her place by the Court.
Under Section 79, the money can be paid to applicant or custodian. All the money
payable under maintenance shall be due and payable to the applicant unless a
custodian has been appointed in which case, the money shall be due and payable to
the custodian. And under subsection (2), the Court may also order that the money
shall be paid into Court and then paid to the applicant or custodian in a manner and
subject to any condition as the Court may direct.
The Court under Section 80(1) of the Children Act can appoint a person known as
a custodian where the court is satisfied that the initial applicant is not fit and proper
to have custody of the child; or is dead or has become of unsound mind or is in
prison. The custodian will assume custody of the child upon appointment.

15 | P a g e
The application may be made by a probation and social welfare officer or the
person having custody of the child. This is provided for under Section 78(2) of the
Act.

2.3. Cessation of the order.

Under Section 82 of the Children Act, a maintenance order ceases to have any
force or validity upon the child attaining eighteen years.

3.0. ADOPTION OF CHILDRENADOPTION OF CHILDREN

Adoption according to the Blacks Law Dictionary, 9th Edition is the creation of a
parent – child relationship by judicial order between two parties who are unrelated.
It refers to the legal and formal acceptance of another's natural or biological child
as if that child were your own, with the same rights and responsibilities attached
thereto as if the child were your natural child, both in terms of child support and
standing in intestates.

16 | P a g e
In Ayat Joy v Jenevieve Chenekan Obonyo and another HC Adoption Cause No.
52 of 2002, it was stated by the Court that adoption creates a lifelong relationship
of parenthood between a child and adopter.

3.1. Preliminary steps to adoption.

An application for an adoption order may be made to the Chief Magistrates’ Court
within the jurisdiction of the applicant’s residence where both the applicant and
child are Ugandans according to Section 44(1) (a) of the Children Act. The
application may be made in the High Court Family Division according to Section
44(1) (b) of the Act, where the child or applicant are foreigners. A child need not
be a Ugandan to be adopted according to Section 41(2) of the Act.
3.1.1. Prerequisites for adoption.
Age.
The Applicant or at least one of the joint applicants must have attained the age of
25 years and should be at least 21 years older than the child. S.45 (1) (a) of the
Children Act.

Consent (spousal);
Where the application is by one spouse, the other spouse must have consented to
the application. Section 45(1) (b) Children Act.

Sex of the applicant;

The adoption order cannot be made in favour of a sole male applicant in respect of
a female child or in favour of a sole female applicant in respect of a male child,
unless the Court is satisfied that there are special circumstances that justify as an
exceptional measure, the making of the order. Section 45(3) Children Act. Also

17 | P a g e
read Re Edith Nassazi Adoption Cause No. 4 of 1997 on exceptional
circumstances. (Uncle given an order against his niece)

Foster Care;
The applicant must have fostered the child for a period not less than 12 months
under the supervision of a probation and social welfare officer.
In Re Derrick Mugoya, Okola Wily, Edward Kabuyo (children) Adoption
Cause No. 69 of 2007Cause No. 69 of 2007, the learned judge noted that Section
45 is only discretionary and not mandatory and the period can be waived if it is in
the best interests of the child.

However, case law has gone ahead to show that the fostering can only be done
away where special circumstances exist that necessitate the best interests being
taken into consideration.

Inter-Country Adoption;
Forum, High Court
The prerequisites are slightly more stringent than in circumstances where the
parties are Ugandan nationals. Section 46.
Before a non-citizen can make an application, the following prerequisites must be
in place;
1. Must have stayed in Uganda for at least one year.
Case law has defined residence in different ways. For example; In Re Yvonne
Kamahi Adoption Cause No. 1 of 1993, the Court stated that to constitute
residence there must be a presence in Uganda for a considerable period of time.
In Re M (an infant) SCCA No. 22 of 1994, the Supreme Court, while referring to
the English case of Fox v Shirk (1970) 2 ALLER 7, the Court observed that one
18 | P a g e
can have two residences and reside in both. That a temporary presence at an
address does not make one resident there and neither does temporary absence
deprive a person of his or her residence. Odoki JSC as he was then went ahead and
stated that the Act did not specify which kind of residence was required for the
purpose of exception and what was required was substantial presence in connection
with Uganda.
2. Must have fostered the child for one year under the supervision of a
probation and social welfare officer.
3. Must not have a criminal record.
4. Must have a recommendation concerning his or her suitability to adopt a
child from his or her country’s probation and social welfare officer or
relevant competent authority.
5. Must satisfy Court that his or her country of origin will respect and
recognize the adoption order.
6. The ordinary prerequisites in Section 46(3) of the Children Act also apply
here.

Consent of the Child’s parents;

Under Section 47(1) and (2) of the Children Act, the consent of the child’s parents
is necessary if the parents are known, but it may be dispensed with by the Court at
its discretion in exceptional circumstances if the parents are incapable of giving it
or are dead; but the consent may be revoked at any time before the pronouncement
of the adoption order.

In Re Micheal Lumu Adoption cause no. 8 of 2000, it was stated by the Court
that the purpose of the consent under this section is to emphasize the right of the

19 | P a g e
parent over the child. And this right should only be discarded in the interest and
welfare of the child.

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

((Misc. Cause No. 37 of 2009)) [2010] UGHC 124, the Court stated that, the
consent to adoption is a very important document because it is in it that the parents
or guardians of the child to be adopted vest their parental rights in the adoptive
parents.
Read:
1. Re Elena Nsubuga Kaggwa adoption Cause no.41 of 1989.
2 Re Peter Sebuliba alias Namansa James (Misc. Cause No. 37 of 2009) ((Misc.
Cause No. 37 of 2009)) [2010] UGHC 124. .
3. Re Kakembo (infant) (FAMILY CAUSE NNO 169 OF 2014) (2014) UGHCFD
10.

Consent of the Child;

Under Section 47(5) of the Act, where in the view of the Court, the Child is able to
understand the adoption proceedings, then his or her views shall be taken into
consideration.
Section 47(6) of the Act on the other hand makes it mandatory to obtain the
consent of the child where the Child is at least fourteen years of age unless it is not
possible for the child to express his or her wishes.
Also read Article 12 of the United Nations Convention on the Rights of the Child
1989 on the requirement of member states to ensure that a child who is capable of
forming his or her own views on such proceedings is given this chance.

3.1.2 Rescission of an adoption order.

20 | P a g e
Under Section 46A of the Children Act, an adoption order may be rescinded by a
Court of competent jurisdiction on application by;
a) The adopted child;
b) A parent of the adopted child or other person who was a guardian in respect of
the Child immediately before the adoption;
c) The adoptive parent of the child;
d) Any person who consented to the adoption;
e) The Minister in case of inter-country adoption; or
f) Any other person with a justifiable reason.
The order for adoption may be rescinded only if the rescission is in the best
interests of the child; or the order was obtained through fraud or misrepresentation.

Upon rescission of the order, the child will be for all intents and purposes as one
that has never been adopted before and the responsibilities that had been
terminated by the order previously will be restored.
Upon rescission, the Court may make an appropriate placement order in respect of
the child concerned or order that the child be kept in temporary safe custody until
an appropriate order is made by the Court or the Court may make an ancillary
order where necessary for the restoration of the Child.

3.1.3. Pleadings in adoption proceedings;

An application for adoption is by way of Petition. (Read Rule 3Rule 3 of the
Children (adoption of Child) Rules SI_59_1.
The statements in the petition must be verified by an affidavit to which be annexed
certificates and other documents proper for proving all allegations in the petition
(Rule 7Rule 7).

21 | P a g e
The petition is presented exparte by the petitioner or advocate to a Judge or
Magistrate sitting in chambers and the hearing must be attended by the probation
and social welfare officer under whose supervision the child was fostered.
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 handicapped situate in Mubende district. The
infant child was aged 1, 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, 1993. The
aunt had told court that the applicant had looked after the child very well, giving
her food, clothing, treatment and education.
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 age difference of 44 years between the applicant and the
infant child.

22 | P a g e
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 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 intestay has been exercised unfairly against
an adopted child, 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 5. 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.

23 | P a g e
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 provide 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.

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 interests 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 applicant’s brother, so there was nothing obnoxious in granting the
application.
c) In the ease 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 cause, the petitioners were step
father and natural mother respectively and Laura,(the children’s father(partner.)
24 | P a g e
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.

25 | P a g e
4.0. PROOF OF PATERNITY OR DECLARATION OF
PARENTAGEPROOF OF PATERNITY OR DECLARATION OF
PARENTAGE
4.1. Who is a parent?
The concept of parenthood is far from straightforward. Many a time it is assumed
that the parents a child are those who genetically produce the child. The woman
whose egg and the man whose sperm together ultimately produce the child are its
parents. In the past, although there may have been practical problems in proving
who was the biological father, that definition of parenthood was generally agreed.
In recent times this definition has become problematic.
Developments have caused a re-examination of the concept of parenthood.
26 | P a g e
The first is the advent of new reproductive technologies. Now the woman who
carries the child need not be genetically related to the child; a man may donate
sperm to a hospital without ever intending to play a parental role.
The law recognizes the child’s biological father as his legal father, if the parties are
married, any child born of the wife is presumed to be the child of the couple.
(Read Banbury Peerage Case (1811) 1 Sim & St 153 HL)
This presumption is sometimes known as pater est quem nuptiae demonstrant
(or pater est for short). It does not apply to unmarried cohabitants. If the birth
takes place during the marriage but conception took place before the marriage the
pater est presumption still applies. The presumption also applies if it is clear that
the conception took place during a marriage, even if death or divorce has ended
that marriage by the time the birth occurs.
The court will refer to the normal gestation period, although the House of Lords in
Preston-Jones v Preston-Jones Jones [1951] AC 391 HL could not agree on the
definition of a gestational period.
At common law the presumption could only be reverted where evidence of the
matter proved beyond reasonable doubt but now, the matter is determined on the
balance of probabilities. In the case of S.Y.MC, WV S.Y.MC, WV Official
Solicitor (1972) App. Cases 24 at pg.41, Lord REID said;
“Blood tests have been used extensively for many years in many countries and it’s
now generally recognised that if a test is properly carried out by a competent
Serologist, its results are fully reliable.”

An order for parentage can be applied for at any time before the child reaches the
age of eighteen years.

27 | P a g e
Under Section 67 of the Children Act, the mother, the father, the guardian and the
child him or herself by next friend can apply for an order of parentage.
The procedure for application for an order of parentage is by a complaint on oath
to a Family and Children Court having jurisdiction in the place where the applicant
resides for summons to be served on the man alleged to be father of the child or the
woman alleged to be mother of the child. Read Section 67(d) of the Children Act.

The application, according to Section 68 of the Children Act, can be made at any
time before the child attains eighteen years of age; or within three years after the
death of the alleged father or mother; or with leave of the Family and Children
Court where the application is made after the lapse of three years.
In declaration of parentage, Court will consider a number of factors. The mere fact
that the child resembles or does not resemble the presumed parent is not conclusive
evidence of parenthood or otherwise.

In Petelonia Mpirirwe v Oliver Ninsabimana [1994] KALR 88, it was stated by

the Court that evidence of similarity in physical features between a child and the
alleged parent is admissible to prove paternity even if the evidence is not
conclusive.

4.2. Evidence of parentage;

a) Births register:
According to Section 71 (1) of the Children 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 or mother is the father or mother of the child named therein.

28 | P a g e
b) Signed instrument:
According to Section 71(2) of the Children Act, an instrument signed by the
mother of the child and by any person acknowledging that he or she is the father or
mother of the child if the instrument is executed as a deed or if the instrument is
signed jointly or severally by each of those persons in the presence of a witness is
prima facie evidence that the person named as the father is the father of the child or
the mother.
c) Court inferences;
The court may also infer paternity simply from the facts of the case. For example,
if it were shown that the mother and the man spent the night together at the time
the conception is said to have taken place, this would be evidence of the man’s
paternity.

In Wynn Jones Mbwambo v Wandoa Petro Aaron [1966] 1 EA 241, the

respondent had written a letter to applicant expressing in endearing terms saying he
still remembered “that night”. The Court held that the letter, undoubtedly “tended”
to prove that he was the father of the child. But also went further to hold that the
person depending on such an allegation should be corroborated and the
corroborative evidence need do no more than show the probability that the
mother’s evidence implicating the man is true; it must point to the man as the
probable father, but it is not correct to say that it must be incapable of any other
interpretation.
This is also brought out under Section 69(3) of the Act.

d) Order of Court:

29 | P a g e
Under Section 71(3) of the Children Act, an order of a court for maintenance made
against a person under any written law is prima facie evidence of parentage in
subsequent proceedings, whether or not between the same parties.
A declaration of parentage by the Court under this part shall for all purposes, be
conclusive proof of parentage according to subsection 4. An order made by a
competent court outside Uganda in affiliation or similar proceedings declaring or
having the effect of declaring a person to be the father or mother of a child is prima
facie evidence that the person mentioned in that order is the father or mother of the
child.

e) References in wills:
According to Section 71(6), a reference, express or implied in a will written or
oral, of any person to a child as his or her child or daughter is prima facie evidence
that, that person is the father or mother of the child.

f) Blood samples may also be used as already discussed above. This is provided for
under Section 69(4) of the Act.
The burden of proof in parentage proceedings is on the person who alleges
Also read:
1. Simpson V Collinson (1964) 1 All E.R. 261
2. CT v MW [1969] ECT v MW [1969] E.A. 375A. 375.
3. B. B. v. AG [1968] 1 KLR 776.

5.0. GUARDIANSHIP
A guardian according to Section 1(k) of the Act is a person having parental
responsibility of the child.

30 | P a g e
Guardianship in according to the Children Act is of three types; viz; Legal
guardianship, customary guardianship and guardian appointed by agreement.

5.1. Legal guardianship:

This a fairly new type brought by the latest amendment to the Children Act. It
applies to children in Uganda.
According to the Act, the order can only be awarded to Ugandan citizens. A person
who is not a citizen of Uganda is not eligible to apply for legal guardianship.
An application for legal guardianship may be made by any person above the age of
eighteen years to the High Court.
The petition shall be in Form 1 set out in the Third Schedule and it shall be
accompanied by a report of the probation and social welfare officer.

5.2. Customary guardianship:

Customary guardianship means parental responsibility of a Ugandan child by a
Ugandan citizen resident in Ugandan in accordance with the customs, culture or
tradition of the respective people.
Family members may appoint a guardian of a child in accordance with their
customs, culture or tradition where both parents of the child are deceased or cannot
be found; the surviving parent is incapacitated; or where the child has no guardian
or any other person having parental responsibility for him or her.
A customary guardian once appointed, shall act as trustee in respect of the property
of that child.

5.3. Appointment of a guardian by agreement:

The parent of the child may by agreement or deed appoint any person to be a
guardian of their child.
31 | P a g e
For such an agreement or deed to have effect, it must be dated and signed by the
parent in the presence of two witnesses, one of whom must be a probation and
social welfare officer, and the must be a local councilor at LC 1 level.
The court also has the power to appoint two or more persons to act as guardians of
the child. These are known as joint guardians. They must be spouses for them to
qualify for such an order otherwise, a guardianship order shall not be made to
authorize more than one person as guardian of a child.

5.4. Conditions for guardianship:

The court prior to making an order for guardianship shall satisfy itself that:
a) There is no known relative or next of kin of the child;
b) The relative or next of kin are unwilling or unable to take parental responsibility
of the child;
c) All alternative care options available to the child have been exhausted;
d) The child is suffering or likely to suffer significant harm under present custody;
e) Consideration has been given to the wishes of the child, having regard to the age
and understanding of the child, where in view of the court, the child is able to
understand the guardianship proceedings;
f) Where the child is twelve years or above, his or her consent to the guardianship
has been obtained, unless it is impossible for the child to express his or her
consent; and
g) That the applicant has continuously lived in Uganda for at least three months;
does not have a criminal record; and has a recommendation concerning his or her
ability as a guardian from a probation and social welfare office or other competent
authority in Uganda or in the applicant’s country of residence; and
h) That the applicant has not made, given or agreed to make any payment or other
reward in consideration of the guardianship.
32 | P a g e
5.5. Effect and duration of a guardianship order:
A guardianship order vests parental responsibility of the child in the guardian.
Guardianship does not completely extinguish the rights and obligations of the
natural parents.
A guardianship order shall remain in force until the child in relation to whom it is
issued attains the age of eighteen years.
The order shall also cease to apply where the guardian dies or is suffering from
infirmity of the body or mind.
The order must be registered within fourteen days after its grant.
Registration is with the Uganda Registration Services Bureau and Ministry
responsible for children affairs; a copy of the order should also be submitted to the
National Children Authority.
Read:
1. F v F (1902) 1 Ch 688F v F (1902) 1 Ch 688
2. Re Deborah Joyce Alitubeera and Re Richard Masaba Civil Appeal no. Civil
Appeal no. 81 of 2011.81 of 2011.
3. Re Sarah Mirembe [1992- -93] HCB 187.93] HCB 187.
4. Re Jane Nakintu HCMC no. 166 of 1997.
5. Re Prossy Nalugwa HCMA no. 500 of 1997.HCMA no. 500 of 1997.
6. Re Ayla Mayanja HCMC no. 20 of 2003.

33 | P a g e
THE LAW OF SUCCESSION:
1. Technical terms.
2. Domicile.
3. Types of succession (1)
4. Wills.
5. Administration of estates.
The law of succession deals with the devolution and transmission of the estate of a
deceased person.
It is the process by which one becomes entitled to the property of the deceased by
operation of law or a will.
The law applicable to succession in Uganda is The Constitution of the
Republic of Uganda, 1995; Succession Act Cap 162; The Administrator
General’s Act, Cap 157; The Administration of Estates (small estates) (special
provisions) Act Cap 156; Administration of Estates of Persons of Unsound
mind Act Cap 155; The Estates of Missing Persons (Management) Act 159.

1. TECHNICAL TERMS: TECHNICAL TERMS:

• Testator – a male person making a will.
• Testatrix – a female person making a will.
• Testament– a will.
• Intestacy – a situation of dying without having made a will or having made a will
which is subsequently rendered void or invalid.
• Administration – refers to; collection and presentation of assets, management and
distribution.
• Administrator – is the person appointed by the Court in intestacy or in a will to
manage the estate of a deceased person. The administrator is said to represent the
deceased.
34 | P a g e
The assets of the deceased vest in the administrator. He or she acquires legal title
to the property and can do anything the deceased would have done.
• Executor– an “administrator” appointed under the terms of a will.
• Beneficiary – a person who is to benefit by receiving a gift under the will or
testament.
• Heir– a person who inherits in intestacy.
• Estate– means the total property both real and personal owned by someone and
therefore, the property available for distribution upon death.
• Bequest – gift of property in a will.
• Probate – means 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.
• Letters for administration – means the grant by a court of competent jurisdiction
authorizing the applicant named in the application to administer the intestate’s
estate.

2. Domicile:
Domicile is literally means dwelling or residence of someone. It refers to
habitation in a place with the intention of remaining there permanently unless
something occurs to alter that intention. It can be domicile by birth, marriage or
choice.

Under Section 4 (1) of the Succession Act (S.A) succession to the immovable
property in Uganda of a person deceased is regulated by the law of Uganda,
wherever that person may have had his or her domicile at the time of his or her
death.

35 | P a g e
Under Section 4 (2) of the S.A, succession to the movable property of a person
deceased is regulated by the law of the country in which that person had his or her
domicile at the time of his or her death. (Read Florence Sali Florence Sali Nurdin v
Charmas Charania and others C.A no. 56 of 2008.)
Section 4 (3) of the S.A 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 or her death that person
was ordinary resident in Uganda.
(b) He or she was survived by a spouse or child who was, at the time of his or her
death, ordinarily resident in Uganda.
The issue of domicile only arises in case of movable property but can apply wholly
in cases of intestacy.

3. Types of succession
There are basically three types of succession namely;
• Intestate succession.
• Testate succession.
• Partly testate and partly intestate succession.
3.1. Testate succession:
This is where a person dies leaving a will or valid testamentary disposition.
The making of wills is governed by the provisions of S.36 of the Succession
Act which states that every person of sound mind and who is not a minor may by
will dispose of his property by will. (Read Administrator General v Bukirwa
and another C.S no. 2018 of 1992.)
A will may be defined as a written legal document that states what property you
own and how you would like it to be divided after your death. It is also a

36 | P a g e
declaration in a prescribed form of the intention of the person making it of the
matters which he or she wishes to take effect on or after his death.

The classical case that defines a will is the case of Lemage v Goodban (1865) 1 P
& D 571 P & D 57 in which Sir JP Wilde defined it as ‘the aggregate of a man’s
testamentary intentions, so far as they are manifested in writing, duly executed
according to statute.’

A will also state who should be in charge of dividing the property. In general
terms, every instrument purporting to be testamentary, or to affect a previous
testamentary instrument, made by a person over the age of eighteen and of sound
mind and executed in accordance with the formal statutory requirements is
regarded as a will if it purports to dispose of property, whether or not the deceased
in fact left any property, or contains the appointment of an executor even if the
executor renounces it.
A document without dispositive effect will normally not be effected by a Court of
law. (Read In the Estate of Thomas, Public Trustee v Davies (Caple intervening)
intervening) [1939] 2 All ER 567

3.1.1 What is meant by a Will being ambulatory.

The primary characteristic of a Will is that it is designed to take effect after the
testator’s death and is revocable during the testator or testatrix’s life. This means
that a will can’t confer benefits whilst the testator is alive.

The ambulatory nature of wills has several significant implications. In particular:

• During the testator’s lifetime, the contents of his Will are treated as mere
declarations of intention. Therefore he or she is at liberty to dispose of his property
37 | P a g e
intervivos (an intervivos gift occurs when the donor intends the transfer of interest
to be immediate and irrevocable”) notwithstanding that it has already been devised
by a will.
• For his part, a beneficiary to whom property has been left in the will cannot
ordinarily restrain the testator from disposing of such property.
His expected interest does not take effect until the testator’s death and is liable to
lapse if he predeceases the testator.
• Property belonging to the testator at his death is capable of devolving under his
will even though he had not yet acquired it at the time the will was executed. For
instance, if T makes a will devising ‘all my real property to B’ and T later buys
some freehold land, which he retains till his death, this land will ordinarily form
part of B’s inheritance under T’s will.

A leading decision on this is Wonnacott v Loewen (1990) 37 E.T.R. B.C.C.A.

this is a case from British Columbia. In this case, the defendant moved in with the
deceased in March 1998 and the two planned to marry when the defendant’s
divorce was granted. The deceased wished to give the defendant some financial
security, regardless of the outcome of the litigation with her husband, so they
consulted a solicitor. Certain documents were prepared and executed, including a
transfer of estate in fee simple of the deceased’s residence to the defendant, to be
used in the event of the deceased’s death. The terms governing the use of those
documents were contained in an “escrow agreement” which gave the defendant an
immediate right to live in the residence. It also provided that the deceased could
take the transfer back in specified circumstances, in which case he was required to
pay the defendant $60,000. The defendant’s divorce was delayed and she was not
to marry before the deceased died in 1988. She obtained the transfer and had it
registered, thereby obtaining title to the residence. The deceased’s executor
38 | P a g e
brought an action to set aside the conveyance on the ground that the agreements
were testamentary and invalid because of failure to comply with the Wills Act. The
action was dismissed and the executor appealed.
The Court dismissed the appeal and held that whatever the form of a duly executed
instrument the person making it intends it that it not take effect until after his death
and it is dependent on death for its “vigor and effect”, it is testamentary. However,
if the document creates a gift in praesenti, albeit to be performed after the donor’s
death, it is not dependent on his death for its “vigor and effect”. The documents
here examined in isolation, appeared to be testamentary, it was clear that they had
life and vigor from the beginning. The documents conferred an interest on the
defendant in the property and they were not testamentary.
Also read: Mallinga v Obukunyang (HCT-0404-CVCV-CSCS-0013-2013) [2015]
UGHCFD 39.

3.1.2.. Codicil:
As already noted, a Will can be altered by the maker during their lifetime. They
can do so by an instrument called a codicil. Section 2(c) of the Succession Act
defines a codicil to mean an instrument explaining, altering or adding to a will and
which is considered as being part of the will.
Codicils have been a part of estate law for hundreds of years. In Book 2, page 450
of his Commentaries on the laws of England, William Blackstone described a
codicil as:
“... a supplement to will, or an addition made by the testator, and annexed to and
to be taken as part of a testament.”
A codicil is of similar nature to a will as regards both its purposes and the
formalities relating to it, but in general it is supplemental to and considered as
annexed to a will previously made, being executed for the purpose of adding to,
39 | P a g e
varying or revoking the provisions of that will. A codicil is nevertheless capable of
independent existence, so that the revocation of a will, or a part of a will, does not
necessarily effect the revocation of a codicil to it.

Whatever the form it takes, any document can be proved as a will or codicil if;
(a) The person executing it intended it to take effect only at its death.
A person’s testamentary intentions refer to their wishes and desires concerning the
handling of his affairs in the period after his death.

(b) It was duly executed normally in accordance with Section 50 of the Succession
Act, failure to do so renders the codicil void. (Read Babumba and 13 Ors Vs
SSali Babumba (CIVIL SUIT NO.78 OF 2012) and in the Estate of James
Ngengi Muigai (deceased), Nairobi High Estate of Court Succession Cause No.
523/1996.) According to this later case, a Will should be in writing, signed by the
testator attested to by two or more competent witnesses who must see the testator
write, sign or affix his mark on the document. This is what is referred to as due
execution of a Will is.
A codicil effectuates a change in an existing Will without requiring that the Will be
re-executed.
The maker of the codicil identifies the Will that is to be changed by the date of its
execution. The codicil should state that the Will is affirmed except for the changes
contained therein. The same formalities that are necessary for the valid execution
of a will must be observed when a codicil is executed.
Failure to do so renders the codicil void. In Serwan Kulubya v Nampiima
Serwan CACA no. 51 of 1990A, Manyindo JA as he was then held that a codicil
not attested to by two witnesses is invalid and that a codicil is part of a will and its
attestation is in the same way.
40 | P a g e
In deciding whether a document can be proved as a Will or codicil, the Court has
to ascertain the intention of the person who executed it both from the language of
the document and extrinsic evidence. If the document appears to be testamentary
on the face of it, a reputable presumption arises that the deceased intended it to
take effect only at his death.
Also read;
1. Cock v Cooke (1866) LRIP & D 241
2. Milnes v Feden (1890) 15 P.D 105.
3. Re Meynell (1949) WN273.
4. 4. Goodman v Goodman (1920) P 261.
5. 5. Robertson v Smith and Lawrence (1870) 2 ALLER 43.
6. 6. Re Stable (1902) P 7.Re Stable (1902) P 7.

3.1.3. The requirement of writing a will and the contents of a wills of writing a will
and the contents of a wills.
With the exception of privileged wills for which the Succession Act under Section
53 uses the word “may”, wills must generally be in writing in order to be
enforceable.
Two points are worth noting in this requirement of writing:
(i) The writing may be embodied in more than one document.
It is a usual scenario that the sum total of a testator’s intentions are always
drawn out of a single document but it is not uncommon for a testator to
employ two or more documents. This as already explained could be in form
of a codicil in which the testator may find it necessary to alter the contents of
the original will.

41 | P a g e
However, it is worth noting that the law strictly considers that a testator should
only have one Will. As was pointed out in Douglas-Menzies v Umphelby [1908]
AC 224, where a person’s testamentary wishes are set out in two or more
documents, ‘it is the aggregate or the net result that constitutes his will’.
In some instances, where two or more wills are found, and it does not appear
clearly which was the former or latter, both are void. But if two codicils are found,
and it cannot be known which was first or last, and one and the same thing is given
to one person in one codicil, and to another person in another codicil, the codicils
are not void, but the persons therein named ought to divide the thing between
them. But if dates appear to the wills and codicils, the latter will is always to
prevail, and revoke the former; as also the latter codicil, as far only as it is
contradictory to the former; but as far as the codicils are not contradictory, they are
allowed to be both in force.
(ii) The law does not prescribe the contents of the will. What is of concern in the
law of succession, is for the will to dictate the manner in which the testator’s
property is to devolve on his death.
The testator (ix) may in addition if he or she so wishes use their will as a medium
for;
• giving expression to his views on a variety of matters particularly the conduct of
persons who would ordinarily be expected to benefit from his will;
• appointing executors and providing for their functions;
• appointing guardians for the testator’s infant children;
• arranging for the payment of debts and the discharge of other obligations due
from the testator;
• nominating beneficiaries under any testamentary power of appointment
exercisable by the testator; and

42 | P a g e
• making provision for the testator’s funeral and other matters relating to the
disposal of his body.
Whatever directions the maker chooses to issue his or her will, the law does not
impose a particular form to follow when making a will. As Buckley LJ put it in Re
Berger [1989] 1 All ER 591, ‘English law does not require a document which is
intended to have testamentary effect to assume any particular form or to be
couched in language technically appropriate to its testamentary character’.
A will may therefore consist of a simple home-made document framed in familiar
everyday terms. Thus, for example, a will which simply read ‘All for mother’ was
recognised as valid in Thorn v Dickens (1906) WN 54WN 54.
However, sometimes the services of professionals like lawyers are sought for
which they’ll be held liable for any negligence on their part.

3.1.4.. Formalities for a valid will.

Section 50 of the Succession Act provides for the statutory formalities governing
the due execution of a will.

(a) The requirement of writing

As already noted, with the exception of privileged wills, the law provides for every
will to be in writing.
Even though S.50 stipulates that a will may be in writing, the law does not insist
that the writing must be embodied in a single document as already discussed
above. Documents may be incorporated by reference as provided for under S.51 of
the Act.

The section makes mention of writing but does not limit the writing to be done
personally by the testator (ix).
43 | P a g e
The will may be written wholly or in part by another person, and signed by the
testator.
A will may be written on any material. Read examples of In the Estate of In the
Estate of Murray Murray (1963) CLY 3621, where a will was written on a piece
of cardboard and Hodson v Barnes Hodson v Barnes (1926) 43 TLR 71 where
a will was written on an egg shell.

It is, however, customary for the writing to be set out on paper. The statutory
format recommended is provided for in the Fourth Schedule of the Succession Act.
Wills are not required to be framed in any particular type of language as
emphasized by Buckley LJ in Re Berger [1989] (supra)

(b) The testator (ix)’s signature

A further requirement imposed by S.50 of the Act is that the will should be signed
by its maker and where they cannot do so, it shall be signed by some other person
in his or her presence and by his or her instruction.
This however means that the person may either sign in the testator’s name as was
the case in Smith v Harris ( (1845) 1 Rob 262, or in their own name as happened
in In the Goods of ClarkIn the Goods of Clark (1839), 2 Curt. 329.

The signature or mark of the testator or the signature of the person signing for him
or her shall be so placed that it shall appear that it was intended thereby to give
effect to the writing as a will.
This means that the signature can theoretically be placed anywhere on the
document so long as it is apparent from the position that it is intended to give
effect to the will As an alternative to directing another person to sign on his behalf,

44 | P a g e
the testator may sign the will himself, but in so doing rely on another person to
guide his hand along the paper, especially where he is blind or seriously ill.

Although the common practice is for the testator to write his name on or affix his
usual signature to the will, the courts have demonstrated considerable flexibility in
determining what suffices as the testator’s signature.
Where a will runs into several pages, T is not required to sign each page. A
signature on one of the pages will be valid provided all the pages are sufficiently
connected or attached at the time of execution. In Re Little Re Little (1960), for
instance, T’s will was contained on five pages and he signed the fifth page which
was covering the other four. The court held that at the time of execution all the
pages were sufficiently connected to validate the entire will. Also, in In the Goods
of Mann In the Goods of Mann (1942) P. 146P., the sheet of paper containing
the testatrix’s will was not signed by her but was put in an envelope on which she
wrote ‘The last will and testament of JCM’. It was held that there, was a
sufficiently close relationship between the envelope and the will to justify treating
the envelope as a page of the will and holding that by putting her name on the
envelope the testatrix had effectively signed the will.

(c) The requirement that the testator must sign in the presence of witnesses In order
for a will to be duly executed T’s signature must be witnessed in the manner
stipulated in S.50 (c), which requires the Testator either:

(i) to sign the will in the presence of two witnesses both being present at the same
time; or
(ii) to acknowledge his signature in the presence of such witnesses.

45 | P a g e
Read Administrator General v Bukirwa and another C.S no. 2018 of 1992and
another C.S no. 2018 of 1992.
The presence of these witnesses provides a useful safeguard against forgery and
the exertion of undue influence.
In this context it is not enough for the witnesses to be in the same vicinity as the
testator when he signs the will.
The witnesses must actually have the opportunity of observing the testator in the
act of signing. As Barnes LJ explained in Brown v Skirrow (1902) P 3: ‘You
cannot be a witness to an act that you are unconscious of; otherwise the thing
might be done in ballroom 100 feet long and with a number of people in the
intervening space. In my view, at the end of the transaction the witness should be
able to say in truth “I know that [T] has signed this document”.’ In this case, a
testatrix took her will to a grocer’s to be executed. She asked two shop assistants to
act as witnesses. As she was signing the document, one of the assistants was busy
serving a customer. The will was held invalid.

In Bukirwa (supra) the Court held that in all administration causes where a will has
been executed in suspicious circumstances, the best evidence which the court will
accept concerning its due execution will be from one of the witnesses who attested
to the will except in cases where they cannot be found or they are dead. But even
where the witnesses cannot be traced, the court will look for some evidence from
other people who were present and witnessed the execution.

Due to the legal requirement that the witnesses are expected to ‘see and be
conscious of the act done and be able to prove it in evidence’ (per Lushington LJ in
Hudson v Parker (1844) 1 Rob Ecc 14, it follows that:

46 | P a g e
• a blind person cannot ordinarily be a witness, since he has no visual perception of
the Testator’s act of signing or acknowledging the will.
Thus, in Re Gibson Re Gibson [1949] 2 ALL ER 90, for instance, a codicil failed
because one witness was blind. However, it is arguable that where the will or T’s
signature is written in braille, it can be acknowledged to a blind witness who is
able to read such writing;
• a witness must in the words of Lushington LJ be present ‘mentally as well as
bodily’. For example, he must not be asleep or intoxicated or of unsound mind
when the will is being executed.
The provision does not however require that more than one witness be present at
the same time.
(d)The requirement that the witnesses must also sign the will
It is not express under s.50 that a witness must sign. But the process of attestation
mentioned in this provision includes signing. They must do so after the Testator
has signed.
It is therefore possible for a will to be invalidated by the fact that it was signed by a
witness before the testator had signed in the presence of both witnesses or
acknowledged his signature. (Read Wyatt v Berry [1893] P5W and John Ntanda
Masanyalaze v Rita Nanono and 4 Ors CA no. 86 of 2008)

The testator must also be aware that the Witnesses are signing the will. So if for
some reason, the Testator is so incapacitated for them to be conscious of this fact,
the signature is invalid. Periodical lapses in consciousness of course being the
exception. (Read Right v Price (1779) Doug 241; 99 ER 157.)
Awareness in these circumstances means that the testator must see the witnesses in
the process of signing the will.

47 | P a g e
The witnesses need not sign the will in the presence of each other for the will to be
valid.

3.1.5. Incorporation of documents.

Section 51Section 51 of the Act provides for a situation where a testator in a will
or codicil duly attested, refers to any other document then actually written, as
expressing any part of his or her intentions.
Such a document will be regarded as forming a part of the will or codicil in which
it is referred to.
For the doctrine of incorporation by reference to apply, the following three
conditions must be fulfilled:

(i) The document must be in existence at the time the will is

executed.
In Singleton v Tomlinson (1878) 3 App. Cas 404, the testator by will directed his
executors to sell four landed estates referred to in his will. Details of the same were
set out in a schedule signed by the Testator, which bore the same date as the will
and was annexed to it. The witnesses were uncertain whether they had seen the
schedule at the time the will was executed and the court held that there could be no
incorporation by reference since it had not been established that it was in existence
when the will was executed.

(ii) The document must be referred to in the will as being in

existence.
Unless the will describes the relevant document in terms which signify that it is in
existence at the time the will is executed, it cannot be incorporated into the will.

48 | P a g e
 (iii) The document must be clearly identified in the will.
There cannot be incorporation by reference unless the terms used in the will to
describe the document are clear enough to enable it to be identified.

3.2. Types of wills

There are three major types of wills,
• Privileged wills,
• Ordinary wills, and
• Mutual wills.
3.2.a. Privileged wills.
They are provided for under Sections 52 and 53 of the Succession Act. These can
be made by a certain category of people under those provisions. The persons
should however be of or above 18 years of age.
A privileged will may be written or oral. An oral will may be made by a testator
declaring his or her intentions before two witnesses present at the same time. It is
nullified after the expiration of one month after the testator has ceased to be
entitled to make a privileged will under S.53 (2) of the Succession act.

Privileged wills may be written wholly/ partially by the testator or reduced into
writing according to the testator’s instructions by another person. The testator’s
instructions must have been given in the presence of two witnesses.

Categories of privileged testators include,

(a) Soldiers in actual war fare
A member of the armed forces being employed in an expedition or engaged in
actual warfare, may make a privileged will.

49 | P a g e
What is actual warfare?
In Re Wingham (1949) P 187 at 196, Lord Denning stated that the requirement
for actual warfare will be fulfilled if the soldier is serving with the armed forces ‘in
connection with military operations which are or have been taking place or are
believed to be imminent’.
It is widely accepted that even if a country is not at war at a particular time, a
soldier may be regarded as being in actual warfare.
Read:
- In the Estate of Estate of Colman [Colman [1958] 1 W.L.R. 457; 2 All E.R.
35
- Re Jones (deceased) [1981] 1 All ER 1
(b) Mariner being at sea
This includes all categories and members of the marine force. It includes all
support staff on a particular expedition provided the nature of the service involves
going to sea. See for example, In the Goods of Hale (1916) (female typist on an
ocean liner) and in the Estate of Knibbs [1962] 1 WLR 852 (barman on ocean
liner).

3.2.1.1. Implications of the privileged status.

The key implication of a privileged will is that it is not subject to the requirements
of the Succession Act. However, there are a number of significant implications,
• A privileged will is valid even if the formalities prescribed in Section 50 of the
Succession Act are not followed. However, where the will is oral, it must be
witnessed.
• An informal act or document by a privileged testator is capable of revoking a
formal will executed at an earlier date by the deceased person. A case in point is In
the Estate of Gossage (1921) 194,CA will, having received orders to proceed
50 | P a g e
with his unit to South Africa. The will was handed and sealed in a sealed envelope
to his fiancée, the residuary legatee. Later, having been informed about the
fiancée’s conduct, the testator wrote to her requesting that she hand over the will to
his sister (which she did). Later still he wrote an unattested letter to his sister
asking her to burn the will. It was held that this letter revoked the will since it
contained a clear intention to revoke it.

3.2.2. Ordinary wills.

These are wills made by most ordinary people. In order for an ordinary will to be
valid, the testator must possess the capacity to make such a will. This means:
- He or she must have reached the statutorily prescribed minimum age;
- He or she must be of sound disposing mind.
Apart from being rendered invalid on account of the testator’s incapacity, the
whole will or portion of it may be invalidated on the ground that it does not
represent his or her intentions either:
- Because he or she did not know and approve of the contents; or
- Because he or she was induced to make the will through fraud, coercion or undue
influence.
The will, will also be invalidated where it does not make provision for dependents,
executors et cetera.

3.2.2.1. Capacity
Age
Minors are deemed to lack the capacity to make a will and this lack of capacity is
statutorily entrenched in Section 36(1) of the Succession Act.
Scholars have advanced two major reasons why a minor is denied testamentary
capacity. This is so because;
51 | P a g e
- That although they may know exactly what the function of a will is and exactly
what will they wish to make, they may nevertheless lack the discretion to make a
responsible will.
- That they are at an age where they may be more easily subjected to undue
influence by a relative or close friend than an adult might be.

Sound disposing mind

According to subsection 5subsection 5 of Section 36 of the Act removes capacity
from any person whose mind is in such a state whether arising from drunkenness,
illness or any other cause that renders such a person not to know what he or she is
doing.
Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549, provides a guideline
of what amounts to soundness of mind for the purposes of testamentary disposition
he stated that:
“It is essential ... that a testator shall understand the nature of the act
and its effects; shall understand the extent of the property of which he
is disposing; shall be able to comprehend and appreciate the claims to
which he ought to give effect; and, with a view to the latter object, that
no disorder of the mind shall poison his affections, pervert his sense of
right, or prevent the exercise of his natural faculties – that no insane
delusion shall influence his will in disposing of his property and bring
about a disposal of it which, if the mind had been sound, would not
have been made”.
The above test requires that a testator must be able to understand the effect of his
wishes as expressed in the will; the extent of the property he is giving out; and
whether or not he is giving it to the right persons in view of different claims on
him by different persons with whom he has one relationship or the other. The
52 | P a g e
testator must also not suffer from any mental disease that may impair his
understanding or suffer from any delusions whatsoever.

- The testator must ‘understand the nature and effect of the business in which he is
engaged’;
- The testator must be able to ‘recollect the property he means to dispose of;
- The testator must be able to ‘recollect the persons who are the objects of his
bounty’;
- The testator must not be suffering from any disease of the mind or insane
delusion, which operates to distort his mind.

Note that this criteria set out by Cockburn is not mutually exclusive and has come
to much criticism as many scholars have argued that due to advancements in
medical diagnosis, there are questions as to whether his test is medically sound.

The courts do not insist that the Testator must exhibit the highest level of
soundness of mind before he is competent to make a will. All that is required is
that the testator must be able to discern and judge, as they apply to his situation, all
those matters and circumstances which go into making a will.

To this end, subsection 4 of S.36 of the Act provides that a person who is
ordinarily insane may make a will during an interval in which he or she is of sound
mind. This is known as a lucid interval.

Therefore, in effect, the issue of whether the Testator is of sound disposing mind
will be dealt with according to the facts and circumstances of each case.

53 | P a g e
The testator may have a sound disposing mind where his will is simple and
straightforward, but the position might well be different where the will is highly
complex and technical. In Re Park’s Estate [1953] 2 All ER 1411, for instance,
the testator, while a widower, made a will in favour of his closest relative. He then
had a stroke, after which he was unable to look after himself and went through
periods when his mind became confused. A short while later, he got married in the
morning, made a new and complicated will in his new wife’s favour in the
afternoon and died that night. The court, while accepting that the testator might
well have had the capacity to make a simple will, held that his capacity did not
extend to the complicated will under consideration.

Note that soundness of mind is only required at the time a testator executes the
will. Once this is done, the will is not invalidated by the fact that the testator’s
mental state deteriorates rapidly after the will has been executed.

The rule in Parker v Felgate (1883) 8 PD 171

Where this rule applies, the requirement of a sound disposing mind is relaxed. The
effect of this rule is that where the testator, while being of sound mind, instructs his
solicitor to prepare his will, but is no longer of sound mind when executing it, this
does not invalidate the will, provided that:

• it was duly prepared in accordance with the Testator’s instructions;

• at the time of executing the will, the Testator was able to understand that he was
executing a will prepared pursuant to his instructions, even if he no longer
remembered what precise instructions he gave or understood the true import of the
dispositions in his will.

54 | P a g e
Intention to make a will (animus testandi)
He must make the will of his own free will, i.e. not subject to any undue influence,
coercion or excessive pressure from other persons in making the will. According to
Lord Penzance in the English case of Hall v. Hall [1868] L.R. 1 P & D. 481 at
482,

“... pressure of whatever character, whether acting on the fears or the hopes,
if so exerted as to overpower the volition without convincing the judgement,
is a species of restraint under which no valid will can be made ... In a word, a
testator may be led but not driven; and his will must be the offspring of his
own volition, and not the record of someone else’s”.

The testator must also not be subject to the fraudulent and deceptive manipulations
of other persons in the making of the will.
In summary, the testator may have the capacity to make a will but the will is
nevertheless invalid because it fails to represent the testator’s true intentions,
because,
• there was no knowledge and approval on the testator’s part; or
• because it was not the product of the testator’s free will.

Knowledge and approval of a testator.

He must know and approve of the contents of the will he makes, i.e. he must not be
mistaken as to the contents of the will and must not be misled or fraudulently
influenced to execute a will, the contents of which he is ignorant of. In the English
case of In the Goods of Hunt [1875] LR 3 P & D 250 for example, a woman
mistakenly executed the will prepared for her sister with whom she resided and
whose will was prepared at the same time as hers. The court held that the woman
did not know and approve of the contents of the will she executed.
55 | P a g e
Cases of fraud are commonly found in the will of a blind or illiterate person.
Though the blind and illiterate possess capacity to make a will, the will can be
declared invalid on the ground of lack of knowledge and, approval of the contents
of the will, where there is proof that the contents of the will were not read to the
illiterate or blind testator and that he understood same before executing the will.
This must be proved where the will was made by another party other than the
testator themselves and signed by them later.

This is usually the case because there may be a possibility that the party who
prepared the will may have deliberately varied or genuinely misunderstood the
testator’s wishes. Lord Penzance in Cleare v Cleare (1869) LR 1 657 states that
the onus of proving that the testator at the material time when the will was drafted
had the knowledge and subsequently approved it lies on the party propounding the
will.
The above case also lays down a rebuttable presumption to the effect that where
evidence suggests that the testator was of sound mind then they are presumed to
have known and approved the contents of their will.

This presumption will not apply where,

• the circumstances surrounding the execution of the will are such that they raise
suspicion of the court.
• There is a mistake in the will or its execution; or
• The testator was dumb, blind or illiterate.
The most common situations that raise suspicion are for example where for
example a will is prepared by a beneficiary to it. Such a beneficiary may not have

56 | P a g e
prepared the will but having been active in some other respects concerning the will
yet they are a substantial beneficiary to it.
For a recent example of such a situation read the case of Hart v Dabbs Hart v
Dabbs (2000) All ER (D) 934, In this case, the claimant was the son of the
testator’s friend and the principle beneficiary under the testator’s disputed will.
The will had been prepared by a friend of the claimant and the persons who had
acted as witnesses had done so at the request of the claimant rather than the
testator. The court held that the circumstances surrounding the preparation and
execution of the will were sufficiently suspicious to impose on the claimant the
burden of proving that the testator knew and approved of the contents of the will.
The court, however, held that the claimant had discharged this burden by proving
that the instructions for the will had emanated from the testator who was fully
aware of its contents.
It is also possible to impute knowledge and approval of the testator by showing
Court that the will was read over to the testator but however, such a rule is not
devoid of being abused.

In Re Morris [1970] 1 All ER 1057, Latey J expressed the view that evidence of
‘reading over’ should only be treated as weighty evidence to prove the testator’s
knowledge and approval such evidence not being conclusive in itself.

Mistake on the other hand concerns a number of scenarios;

• Mistake concerning the execution of the will
Where on the face of it, it appears that a will was executed by a testator who was
mentally capable, the presumption that he knew and approved of its contents may
be displaced where it emerges that in executing the will he was laboring under a
mistake.
57 | P a g e
An example would be where say John prepares a will and in instead of executing
it, Jane executes it and in turn John executes a will prepared by Jane instead.

Such a situation occurred in the case of In the Goods of Hunt (1875) LR 3 ) LR 3

P&D 250 where T1 drew up separate wills for herself and her sister T2. By
mistake, T1 executed the will prepared for T2. The court refused probate of this
will on the ground that T1’s mistake meant that she could not properly be said to
have known and approved of the contents of the will she had executed.

• Mistakes concerning unintended inclusions and exclusions:

The testator may by mistake include unnecessary words into a will where if
interpreted could lead to a will being legitimately challenged or may all the same
omit some words whose effect may be the same.
The court in such cases has the power to order that the will be read as if the words
as omitted or included be read into or out of such a will to create a purposeful
interpretation of such a will.
A case in point was Morrell (1882) L.R. 7 P.D. 68) L.R. 7 P.D. 68 where the
testator instructed his solicitor to draw up a will leaving 400 shares in a company
to A. the will when drafted read that ‘forty shares’ had been left to A. the will was
admitted to probate without the ‘forty’, thus entitling A to take all the shares the
testator had intended.

Please note that the powers of inclusion are not automatic. The Court is only
willing to invoke such powers in case of clerical errors. The rule of inclusion is not
reflected in our current succession laws.

• Dumb, blind and illiterate testators.

58 | P a g e
Section 36 (3) of the Act provides for the capacity of deaf, blind and dumb
testators to make wills. The proviso is that they should be able to know what
making a will means to them.

The making of the will by a dumb, blind and illiterate testator may be by another
person. Where this is the case, the courts will not presume that the testator knew
and approved of the contents of the will just because he was of sound mind and the
will appears to have been duly executed. The person propounding the will must
specifically prove such knowledge and approval.
Section 3 of the Illiterates Protection Act Cap 78 enjoins any person who writes a
document for or at the request or on behalf of an illiterate person to write in the
document his/her true and full address, and his or her so doing shall imply a
statement that he or she was instructed to write the document by the person for
whom it purports to have been written and that it fully and correctly represents his
or her instructions and was read over and explained to him or her. (On the strict
application of this provision, read the Supreme Court decision of Kasaala
Growers Co-0perative Society v Kakooza & Anor civil application civil
application no. 19 of 2010no.)

The case of In the Goods of Geale (1864) 3 Sw & Tr 431, is an example of a

situation where a testator was dumb, death and illiterate. However he was able to
converse in an intelligible manner with friends and family and the evidence before
court suggested that he was shred and intelligent. A will was prepared for him and
he executed it and by evidence it was shown that the provisions of the will had
been explained to him using appropriate mimes and signs. The court held his will
as validly executed.

59 | P a g e
• Absence of free will
The absence of free will may also invalidate a will, where it is due to fraud,
coercion and undue influence.
Section 47 of the Succession Act provides that a will obtained by fraud, coercion
or undue influence is void.
Whereas it is incumbent on a person seeking to propound a will to satisfy the court
that it was made with the testator’s knowledge and approval, he is not at the same
time required to prove the absence of fraud or undue influence. Instead, the onus
lies on any party who alleges fraud or undue influence to furnish the necessary
proof. A plea of fraud or undue influence ought not to be made lightly, cogent
evidence will be required by a court in order to sustain the plea.

4.4. Revocation, Alteration, Revival and Republication of Wills

According to Section 48 of the Succession Act, a will may be revoked or altered by
its maker at any time when he or she is competent to dispose of his or her property
by will.
In the old case of Vimar v Wilde (Vynior's Case), 77 Eng. Rep. 595 (KB), [1609]
the court stated that a will is revocable by its very nature even if the testator
declares it irrevocable.

The Succession Act in sections 56 to 60 provide for the Revocation, Alteration,

Revival and Republication of Wills.
The Act provides for four methods of revocation of wills namely;
• Revocation by marriage
• Revocation by another will or codicil evidence before court suggested that he was
shred and intelligent. A will was prepared for him and he executed it and by

60 | P a g e
evidence it was shown that the provisions of the will had been explained to him
using appropriate mimes and signs. The court held his will as validly executed.

• Absence of free will

The absence of free will may also invalidate a will, where it is due to fraud,
coercion and undue influence.
Section 47 of the Succession Act provides that a will obtained by fraud, coercion
or undue influence is void.
Whereas it is incumbent on a person seeking to propound a will to satisfy the court
that it was made with the testator’s knowledge and approval, he is not at the same
time required to prove the absence of fraud or undue influence. Instead, the onus
lies on any party who alleges fraud or undue influence to furnish the necessary
proof. A plea of fraud or undue influence ought not to be made lightly, cogent
evidence will be required by a court in order to sustain the plea.

• Revocation by some writing declaring the intention to revoke the will and duly
executed.
• Revocation by the testator or his agent in his presence and under his instructions
either by burning, tearing or otherwise destroying the will with intent to revoke it.
Revocation by marriage occurs automatically meaning that it need not be shown
that the testator intended by his marriage to revoke their will.
However, with the other forms of revocation, the testator’s act must be
accompanied by an intention to revoke (animus revocandi).

4.1.Revocation by marriage (Section 3 and 56 SA)

Under Section 3 of the Act, marriage does not per se make one acquire an interest
in the part of the person he or she marries nor does it incapacitate any person from
61 | P a g e
doing any act of his or her own party which he or she could have done if
unmarried.
According to Section 56Section 56 of the Act, 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.

A will not only be revoked by a valid marriage but also a voidable marriage since a
voidable marriage has capacity to either become valid or subsequently annulled. Of
course the reverse is true.
In Mette v Mette (1859) 1 Sw & Tr 416 where the testator married his wife’s
sister, the marriage though celebrated out of the English jurisdiction, was void for
falling within prohibited degrees of affinity and therefore was held not to have
revoked his earlier will.
Further read: Rwabagango v Donato (1977) HCB 244 and Section 30 of the Act
on the effect of separation.

4.2. Revocation by subsequent will or codicil

Section 57 provides for revocation by a subsequent will or codicil.
If the testator decides to revoke his will, in whole or in part, he may do so by
executing a later will or codicil.
The English Court in Re E (2000), Arden J reiterated the basic principles
applicable to revocation of a will by subsequent will;
• whether a prior will or codicil has been revoked by a later will or codicil is a
matter of construction; (read Section 61 of the Act)

62 | P a g e
• there must be an intention to revoke on the part of the testator in making the
subsequent will or codicil;
• extrinsic evidence is admissible to establish this intention;
• where a testator has executed more than one will the court should as far as
possible construe them so that both may stand;
• if the instruments are so inconsistent that they cannot stand together (and it is not
known which was executed last), neither can be admitted to probate.
Suffice to note when a will is being drafted, professionals tend to include the
words, “This is my last will…” this does not necessarily imply that all earlier wills
are revoked. Revocation will occur, only where a later will discloses an express
intention to revoke an earlier will or where such an intention can be implied from
the later will.

4.3. Revocation by some duly executed writing.

It is contemplated under Section 57 of the Act that some other writing declaring an
intention to revoke a will and duly executed can substantially revoke a will.
This mode of revocation was adopted from Lord Penzance’s words in In the
Goods of Durance (1872) 2 P & D 406) 2 P & D 406 where he declared that if a
man writes to another ‘Go and get my will and burn it’, he shows a strong intention
to revoke the will; and it follows that if the letter was duly executed it will operate
to revoke the will.

Indeed, in Re Sparklan’s Estate (1938) 2 ALLER 345, a letter signed by a

testator and duly attested, addressed to a bank manager instructing him to destroy a
will by the testator was held to have effectively revoked the will.
The will was revoked as soon as the letter was duly executed.

63 | P a g e
4.4. Revocation by destruction
Here the distinct elements are;
(a) The act of destruction.
(b) An intention to revoke.

The act of destruction

Although s 57 mentions two specific modes of destruction (burning and tearing)
the words ‘otherwise destroying’ signify that other similar acts will suffice (for
example, dissolving it in acid or pinning it up on a wall and shooting it to bits).
Case law has shown over time that the act of destruction will consist of complete
obliteration of a vital portion of the will such as the testator’s signature.
In Cheese v Lovejoy (1877) 2 Pd 251, a will was cancelled by drawing lines in it
with a pen in some parts of the will. At the back of the will, the testator wrote that
all these are revoked; thereafter he threw it among a heap of waste paper in the
corner of his living room. His house maid retrieved it and kept it and kept it until
the testator’s death 7 years later. The Court held that the will was not revoked since
the testator had not done any destruction.

Destruction to be effective must be carried out by the testator himself or by another

person in his presence and by his direction.
Read: In the Goods of Dadds (1857) 164 ER 579 and In the Estate of Kremer
[1965] 110 SJ 18.

A partially destroyed will will have effect for the remaining portion as long as the
remaining part contains the signature of the testator. This is what is known as
partial revocation.

64 | P a g e
The direction of the testator in regards to destruction of a will is very important to
fully facilitate the act of revocation. Where a will is destroyed by someone else in
the presence of the testator but without their direction the will is not revoked.

A case on point was Mills v Millward (1890) 15 PD 20, where the testator’s
sister-in-law was so infuriated that the testator had left nothing for her and her
husband in his will that she tore up the will in the testator’s presence.
The will was held as not to have been revoked.

Intention to revoke
The testator must have intended to revoke their will when the act of destruction
occurred. If for example the testator destroys their will under an assumption that
they are destroying a different document, this will not revoke the will.
Similarly, where the will is destroyed by a testator that is of unsound mind or
drunk, then that will is not destroyed.

Revocation by destruction raises two presumptions namely;

(a) Presumption where a will is lost

Where a testator’s will or codicil, which was last known to be in his possession is
missing at his death, a rebuttable presumption is raised that he had destroyed it
with the intention of revoking it.
Where it is not possible to point the last whereabouts of a will to the testator, then
such a presumption will not be raised.

65 | P a g e
To rebut such a presumption, it could be proved on a balance of probabilities that
the testator did not seek to revoke the will but that will was actually stolen, lost or
misplaced.

(b) Presumption where will is found mutilated

Where a testator’s will which was known to be in his possession is found at his or
her death to be torn or mutilated and there is no explanation as to how it got into
such a state, the testator according to case law will be presumed to have intended
to revoke the will or the torn/mutilated part.

There are also instances where a revocation may be conditional. A revocation is

conditional where it will not take effect unless the material condition is satisfied.
In Campbell v French v Campbell (1797) 3 Ves. Jr. 321, the testator’s will
contained legacies in favour of his relatives who lived in America. In a later
codicil, the testator revoked the legacies on the ground that the legatees were all
dead, but it later emerged that they were still alive at His death. It was held that
revocation was conditional on the legatees having died and was therefore of no
effect.
The opposite of conditional revocations is absolute revocation which can be done
through any of the above methods.
The question of whether a revocation is either conditional or absolute is a question
of fact. Declarations made by the testator are admissible in this regard.

4.5. Alteration of wills

This usually happens where the testator wishes to amend some particulars in the
will.
The options open to such are a testator are to:
66 | P a g e
- Execute a codicil in which they state out the desired amendments; or
- Embody the proposed amendments in the will itself by means of such
interlineations, obliterations or other alterations as are considered appropriate.

Of major concern here is whether such alterations are proper under the law.

Where evidence is led to the fact that the testator altered his will before execution
of a will intending that the alteration should form part of the will, the alteration is
valid whether or not it is signed and attested to. The will will therefore be read in
the light of these alterations.

4.5.1. Presumptions connected with the alteration of wills and the effect
Presumptions connected with the alteration of wills and the effect of Section 58 of
the Succession Act.

Presumption as to when alteration were made

There is a rebuttable presumption that any alteration to a will was made after the
will and any codicils to the will were executed.
The rebuttal of this presumption will bring S.58 into play that is, the alteration is
deemed to be valid only if it has been duly signed and attested to.

Presumption arising from making alterations in pencil

It is presumed that alterations in pencil are more deliberative than final more so
where the contents of the rest of the will are in ink.
Where an alteration is after a will has been already executed, Buckley J stated in
Re Hay [1904] 1 Ch. 317], that such an execution is not effective unless the
alteration is executed.
67 | P a g e
Due execution here means that it must be signed by the testator and at least two
attesting witnesses in the manner of execution of any valid will. The witnesses
need not be the same as those that signed the earlier will.
An improper execution of a later alteration will make such alteration of no effect.

Animus revocandi
The fact that certain words in a will have become so obliterated that a part of the
will is no longer apparent will not revoke that part of the will if the obliteration
was not the result of an intention to revoke this is known as animus revocandi.

4.6. Revival of wills

Section 60 of the Succession Act gives the rule relating to revival of unprivileged
wills. The general rule is that no unprivileged will or codicil, nor any part thereof,
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.

Two modes of revival are provided for in this provision;

(a) By re-execution: As the term suggests, this entails the signing and witnessing of
the previously revoked will in the manner prescribed by the Succession Act.
Where such re-execution occurs, this in itself is deemed to signify T’s intention to
revive the will and there is no need to satisfy the court of this fact.
(b) By a duly executed codicil: this shows an intention to revive the revoked will.
The testator must of course have the intention to revive their will.

68 | P a g e