Family Law 2

Lecture 1: 24022021

Special Wills: Privileged, conditional wills

Contracts involving Wills. This occurred where a testator enters a contract with a
beneficiary that should they offer a certain service they would benefit

Revocation of Wills

How to execute a will and what the different powers

How to apply for probate: Where a person is meant as probate

The law of succession governs the administration of one’s estate after death. To
ensure continuity of the estate of the dead and that the wishes of the deceased person
who has made the will are respected. The law of succession therefore establishes in
advance the rights, responsibilities of the testator

Key terms

Testator: Divisor This refers to the deceased person who has left behind a will through
which she divises property

Beneficiary/Devisee: This is a person who benefits

The Estate: This is the aggregate of all property and all interests the testator has left
behind

Executor: A person who s identified in the last will and entrusted with the responsibility
of putting into effect the terms of the will.

Codicil: A document that either supplements, explains, alters, adds on. A will is asset
of documents. People change their minds along the way.

An administrator is a person who applies to the person of the Administrator general

where there is either no will or there is a will that has been found to be invalid. Where
the will is found to be valid then the executor applies fir probate. The court determines
whether the will is valid. In practice it is expected that where there is a will, they are
entitled to take the given property. This is wrong. The law requires where there is a

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will you apply to court to determine whether it is valid or not. And the law provides for
the procedure on how the will should be executed.

Where the testator makes a will, and seeks to retain the validity of that will, all the
different the codicils that explain to al

Where the testator makes a new will and does not intend the old will to stand, he is
supposed to state that in simple terms. This will, revokes all other documents I signed.

Where it is not explicitly expressed the totality of all the documents that have been
formed will form the last will.

Functions of the Law of succession

1.The law of succession establishes in advances the rights, responsibilities,

obligations of the testator. In so doing it discounts the disruption of death on the
integrity of the testator.

2.Reserves and maintains the estate to stay within the family. When the testator gives
away his estate to non-family members, the family goes to court to determine whether
the testator was in his right frame of mind.

Succession and inheritance are often interchangeably used. However, they are
different. Succession means the transmission of rights, duties, powers and privileges
of the testator, on the other hand inheritance refers to property only.

The succession Act is applicable to all Ugandans and all cases of testate and intestate
succession.

What is a Will

A will is not defined in the succession Act. There is no specific format of making a will.
Case law, a will is generally a written declaration of the wishes of the testator that
will take effect on her death. A will is ambulatory because it takes effect on death.
Secondly, it is revokable by the testator until death.

The purpose of the will.

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 1. It has a cautionary or ritual function. It ensures the serious intention of the
testator to have their wishes respected.

2. It has evidential value. It creates a reliable proof of the testator’s intention for
court, relatives and other stakeholders.

3. Thirdly, it has a protective function; it safeguards the testator and makes it

difficult to influence the estate improperly.

4. Fourthly, it has a channeling and signaling function.in that it creates a safe

harbor and reassures the testator that their wishes will be satisfied by following
familiar legal; processes as recognized by law and society as being a will. In
Kakungulu v Kakooza, HC held that once a person makes a will she has opted
out of customary law. Where the will is found to be invalid then statutory law,
the succession Act applies

ANIMUS Testandi: The intention to make a will. That’s the most important element of
a will.

In one case Animus testandi means the intention to make a will.

A person made two wills on the same day but was kind of unsure of which one he
should keep. Later on, he picks one and destroys it and keeps the other. At the time
of making the will he was unsure of making a clear will that’s why he made two so the
second will was found to be invalid because he lacked the animus testandi. The key
question would be at the time of making the will did that particular testator have the
intention of making the will. Case law: Re Honer

Capacity to make a Will

Court considers

Whether person was of sound mind, no undue influence and no fraud at the time of
making the will. We also look at whether there was a mistake at the time of making the
will.

Case law discussing capacity to make a will and Section36.

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Lecture 2: 030321

Who is capable of making a Will?

S.36 Succession Act

A will is read normally at the time of death.

Contents or elements of a will. What is important is that the testator has the intention
of making a will and devising his property.

Marital Status

Place of Origin

Number of Children, specific names of the children, the age of the children, the
moveable and immovable property

Burial wishes: It’s not only important to state the burial grounds. Be careful about the
commercialization of land and burial sites.

Can a divorced woman be a beneficiary of a will? Yes. However, if any of the two is
remarried the will would be revoked.

When one is including the beneficiaries of the will, the law assumes that the testator
would leave their property to the immediate relatives like children. However, should
the testator has no desire of bequeathing the property to the spouse or children, the
testator must specify those children or spousal, he is required to be explicit. “To so
and so my beloved, I leave nothing.” Otherwise, the person left out may challenge
the will under Section 36(4).

Case:

Banks v Goodfellow (Banks had been of unsound mind and he left the property to a
non-relative. This was contested by one of the relatives that he could not had left his
property to a non-relative and that he may have been delusional. Court disagreed
holding that these delusions were not substantial.

i) The testator must understand the nature of the will and its effects.

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 ii) Secondly, the testator must have an idea of the property they are disposing
off under the will.

iii) Thirdly, must be aware of the person for whom the testator would be
expected to provide for.

iv) Fourth, must be free free from delusions at the time of making the will that
would cause him not to benefit those people that he would have ordinarily
bequeathed to.

The court also emphasizes that this is not to say that the testator has to bequeath
those apparently close known to him but to ignore them may indicate a lack of enough
capacity to form the animus testandi

Hallucinations are not sufficient obstacle to animus testandi unless the delusions are
fatal and are of a high magnitude.

Wood v Smith: Had made a will in 1978 and made another one in 1986 two days
before his death. Issue was whether the will in 1986 was duly executed.

Lecture 3 10032021

The circumstances that court would consider to determine whether there was undue
influence or not.

Case of Wingroove: The person influencing the testator must have influence on him
or her

2….

3. The testator acts on the influence

The conditions that court takes into account to determine if there is likelihood
of undue influence:

Motive-that the person executing the undue influence had interest eg close relative,
health worker

Odd Disposition-eg if a will has recently been changed in favor of a recently acquire
friend
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Opportunity and access-eg where there is closeness whether it is physical or
emotional.

Section 47 Succession Act

Coercion is not necessarily illegal but it’s when it is excessive power over the testator
…circumstances the court takes into account. There is a difference between
persuasion and being driven. And when persuasion goes into being driven becomes
coercion. Its not that all acts of persuasion and kindred is coercion. Hall v Hall

Craig v Lamourex: The husband participated in the making of the wife’s will in which
the husband was the sole beneficiary. The sister contested the will arguing that the
testator was seriously ill. Court held that the onus of proving that there was undue
influence rests on the party so alleges. However, there is no reason for a parent or
sister may not put up their case for naturally having their interests. However,
persuasion must of course stop short of coercion. Court recognized that there is a
natural desire for relatives to appeal to affection however it should stop short of being
driven, being coercive.

What happens to the estate if the will is invalid due to fraud? The estate passes
intestate

Mistake

Court is reluctant to interfere with the wording of the will if attested to interfere with the
wishes of the testator. The court recognizes that sometimes the testator may make
mistakes in writing of testamentary dispositions. The court applies the harmless error
rule.

The harmless error allows court to…a defective document in order to into effect the
testators intention. It provides that of the mistakes and errors do not go to the
foundation of the testamentary intent, the courts will ignore eg where the testator has
two children X and Y, and in the will mentions X and Y as her children and proceeds
to distribute and instead of providing for X an Y writes to X I bequeath to X this property
and to X this and that…in such a situation the court would be of course understand
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that the testator intended to leave the property to two children and not one. Case:
Goods of Boehm sets the principle.

Section 50.

The formalities of executing a valid will

Section 50(a)

Section 50 (b) Wood v Smith: Testator wrote at the top. My will by Winterburn. The
issue that the mark should be placed at a position at the end. However, the placement
of the signature alone may not invalidate the will. In Wood the court took cognizance
that the requirement of having a signature on the will should have a significance and
the written name is capable of being a signature, where the will is signed before the
dispositions affirmative evidence that will demonstrate that the testator intended the
document to be the will. In Wood the witness had demonstrated testamentary intent.

Section 50(c): Attesting witness is the one who has seen the testator sign and also
signs the will. But there could be ordinary witness. An attesting witness is the one who
has seen the testator sign and that person also signs the will.

The will must be dated. Usually after signing the date is put. Mandatory. New wills
revoking an old one. Courts have taken judicial notice that wills must be dated.

Good practice but not mandatory, each of the pages is signed.

Video can provide additional evidence but not necessarily substitute section 50

Section 49. Form of a will. Schedule 4. The form is not a mandatory. There is no
specific form.

In the case of Haji Sulaiti Habib Irumba V Hajati Safarani Nyima HCCS
No.718/1995 Byamugisha J held it was necessary to have an attestation clause which
indicates that the requirements of the section 50 have been complied with however it
is not mandatory because you will find it that the majority of the people do not solicit
lawyers to make wills.

Case: John Ntanda Masanyalaze v Rita Nanono and 4 Ors: Validity of the
attestation. One of the witnesses didn’t know what he was signing. Also, there were

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major inconsistencies. Court emphasized that sections 36 and 50 read together that
two attesting witnesses sign the document to ensure the testamentary intentions of
the testator.

A will can also be in vernacular.

Administrator General V Nakiyaga: A document which requires attestation must be

verified by one of the attesting witnesses. S.66 and 67 of the evidence Act. While the
law requires two attestators, only one is required to verify. If none is available, you call
in a handwriting expert.

James Ruteete and Anr v Fiona Mbabazi and Anr: The defendants applied to get
letters of administration. Caveat was lodged by the applicants that there was a will.
The applicants wanted probate. Section 50. Attestation. Called witnesses. Court held
there was a will. Ds said there were mistakes of improperly names but court held the
errors were minor. There were 16 children. Still section s 66 and 67 of the Evidence
Actor. Court observed that the persons who were challenging the will were greedy and
appeared dishonest and the attesting witnesses had no interest in the will and
appeared credible.

James v Ndaribwende: Plaintiffs argued the testator was sane. Defendants argued
he was not. The testator had added wrong property. The reverend was dishonest.
Court Held: That the will was valid. Major issue was mental health. Court will be
reluctant to ignore a document that is duly executed. Court also clarified that an
attestation clause is not mandatory. The fundamental flaw was that the testator was
of unsound mind. Court relied on the Dr’s evidence to justify that Zirabwende was of
unsound mind.

Lecture 4
S.54, 55 and 58:
s.54: It is to the effect that an attesting witness cannot benefit from the will. In effect ,
a person who appends his or her signature on a will as a witness cannot have an
interest and benefit from it. This means that the attesting witness and or hisor her

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spouse will not take the gift and it will revert back to the estate of the testator and it
will be given to any beneficiary.

s.54 (2): -a witness to a cordicil (this is an explanation or supplement to the will) is not
precluded from benefitting from the will. This is because a cordicil is a later document
and it explains or supplement the original will. Where the cordicil seeks to bequeath a
witness, s.54 (1) shall apply and the witness shall not benefit.
s.55: A person with an interest in the will such as a beneficiary or executor is not
precluded from testifying as to the validity of the will. The difference between s.54 and
55 is that under the former, an attesting witness cannot benefit from the will and for
the latter, any person can be a witness when the will is in question and attest to either
its validity or otherwise.
Alterations and Cordicil
A cordicil or alteration changes, adds or alters the will. The effect of s.58 is that all
alterations must comply with s.50 (this provision speaks to how a will should be
executed). All alterations to the will must be executed in the same manner as though
executing a fresh will-there must be animus testandi, attesting witnesses and so on.
The attesting witnesses need not be the ones that witnessed the parent will. The same
applies to cordicils.
A cordicil derives its validity from the parent will and therefore it has to refer to the
original will whose contents it seeks to alter or add. Where a cordicil doesn’t refer to
the original will, it means it is a new will and revokes the original will. A cordicil can be
executed on an existing cordicil. Two cordicils can be executed on the mother will.