A will is an indispensable legal tool used to mitigate domestic disputes over property and defending the inheritance rights of the vulnerable, especially women and children. In this regard, the KRC Human Rights Clinic is spearheading efforts to educate communities on the legal importance of writing a will and in many cases, mediated related cases of inherited property disputes.

Case story (names used are not actual designations of the characters in the story)

The late Mutabazi died in January 2012 leaving twelve children which include eleven females and one male child (9th born) and a widow. During the burial ceremony, a will dated 20th July 2005 was read to the mourners by a known friend of the deceased. The will mentioned that the deceased had left 12 pieces of land in different areas known to the beneficiaries. The will showed that the testator bequeathed only one property (piece of land) which according to the will each of the children was to take a plot (50x 100) of that land. However, that same piece of land had been sold to Kaguta the only son of the testator and a land sale agreement was thereto drawn, signed and duly witnessed by the wife (now widow), 6 sisters, residents of the area and the Chairperson LC 1 of the area. This agreement was/is dated December 20th 2010.

One of the children insisted that the will supersedes and that the sale agreement was a forged document.

KRC Uganda received Kaguta as the complainant having received a notice of intension to sue from one of the legal aid service providers. 

KRC Human Rights Clinic together with the Legal aid service provider scheduled a mediation meeting with both parties, siblings of the parties, mother of the parties, LC1 chairperson and residents of the village to enable KRC Legal Officer us have sufficient information. The community was duly sensitized on writing of wills (as discussed above) and rolled the matter back to the community to resolve the challenge. The community resolved that despite Mutabazi writing a will, he still owned his property and could dispose it off as he so willed, however, we recommended that when one writes a will and wish to alter the same, a new will invalidating the earlier will or an addendum should be drafted.

Guidance on writing a will

Often, when we hear that our relative and friends have died intestate or testate. In the Legal fraternity these terms mean;

  • Testate - having made a valid will before one dies
  • Intestate - not having made a will before one dies

In this writeup, let’s focus on the term testate, enabling one to have a valid will.

What then is a will? A will is a written document that provides how one’s property will be distributed after he/she dies. In Administrator General V Teddy Bukiirwa & Anor (1992-93) HCB 192 – it was held that a will has two basic meanings;

  1. A will refers to the total declaration of what the maker(testator) wishes to happen upon his demise
  2. All refers to the document itself

A will is characterized by the following,

  1. It is ambulatory (Singh V Singh), a will shall take effect upon the demise of the testator
  2. It’s usually in prescribed form. This is as prescribed in the Succession Act 2021 as ammended
  3. A will is revocable at any time. This means in an instance one changes their mind, they can cancel the will and write another
  4. The scope of the will is not confined to disposition of property

For a will to be valid, it must fulfil the following essential features,

  1. The person writing the will must have testamentary capacity. This requires the testator to be over the age of eighteen years, of sound mind and having a disposing mind and memory. Bank V Goodfellow (1861-1973) ALLER 47-
  2. The testator must have the animus testandi (intention to make a will), this must be expressly shown in the document
  3. A will (unprivileged) must be in writing
  4. Must be signed by the testator, this is what proves that this document is owned by the testator
  5. Attestation

This is the most ignored and contested in our local communities. Attestation is very important since the attestators / witnesses are the only people to prove willingness of the testator. The Succession Act 2021 under Section 50, a will must have atleast two witnesses. Vital to note is that these witnesses must not be beneficiaries in the will or to the estate of the testator.

  1. Must appoint an executor.

An executor of an estate is an individual appointed to administer the last will and testament of a deceased person. The executor's main duty is to carry out the instructions to manage the affairs and wishes of the deceased.

Vital to note is that an executor is different from an heir, therefore when writing a will, the testator must explicitly identify the heir and the executor. An executor can be a beneficiary but it is important to ensure that they don't witness your will otherwise they will not be entitled to receive their share under the terms of the will.

The executor applies for Letters of Probate from Courts of law to enable him execute the mandate of the will.

  1. All beneficiaries must be in the will i.e. The legitimate and illegitimate children. Kajubi V Kabali (1944) EACA – all children have a right to share in their father’s estate, wife / husband and dependants.

Title: Protecting inheritance rights and mitigating conflicts through writing a will

Author: By Muhiirwa Deus Alituha, Lawyer

Category: Conflict Transformation

Publish Date: 2022-03-14

Brief Story

Related News

Sign up for our eNewsletter to learn more about our work