High Court of Uganda Clarifies Succession Law on Illiterate Testators and Rights of Widows Who Remarry

Brief of Ngugi Richard and Others v Tumushiime Sam and Nkurunzia Kenneth (Civil Appeal No 17 of 2023) 2025 UGHC

Judgment delivered on 8 July 2025 by Hon. Justice Karoli Lwanga Ssemogerere

Representatives. This appeal was argued by M/S Tugume Byensi & Co. Advocates for the appellants. M/S Lawtons Advocates argued the appeal on behalf of the respondents.

🧾 Introduction

Succession law in Uganda is principally governed by the Succession Act, Cap 268 (as amended), which provides the legal framework for both testate succession (where the deceased leaves a valid will) and intestate succession (where the deceased dies without leaving a valid will).

The Act outlines the procedures for making valid wills, distribution of estates, and the rights of surviving family members, particularly widows and children. It also incorporates protections for vulnerable individuals, such as illiterate persons, through related legislation like the Illiterates Protection Act, Cap 228.

Under the Succession Act, a person may dispose of their property by way of a valid will, provided it meets the legal requirements of attestation and execution. Specifically, Section 47(1)(c) mandates that a will be attested by at least two witnesses, each of whom must either observe the testator sign or acknowledge the signature in their presence.

However, where the testator is illiterate, additional safeguards are imposed by the Illiterates Protection Act, which requires the document to be read over and explained to the testator, with the person writing or witnessing the will clearly identifying themselves and certifying compliance.

Importantly, the Succession Act also protects widows through Section 22, which grants them occupational rights to the principal residential holding of the deceased, ensuring stability for surviving spouses in the absence of a valid will. A widow retains this right unless disqualified—such as by remarriage—and upon her death, the property devolves to the lineal descendants of the deceased in equal shares under Section 22(3).

Further, Section 51(1) of the Act invalidates any bequest made to a witness or their spouse, ensuring impartiality in the execution of testamentary instruments. These statutory provisions aim to preserve the integrity of wills, prevent undue influence or fraud, and ensure the fair distribution of estates in accordance with the law.

It is against this backdrop that the High Court in Ngugi Richard and Others v Tumushiime Sam and Nkurunzia Kenneth (Civil Appeal No 17 of 2023) 2025 UGHC, evaluated whether the disputed will left by the deceased, Nvugye “Ngugi” Barijane, was validly executed, and whether the trial court correctly determined the rights of the parties—particularly the widow and the children—in respect of the deceased’s estate.

⚖️ Background

The dispute concerned land and residential property at Kisoro Hill Cell, alleged by the respondents to be their exclusive ancestral homestead inherited from their father, the late Nvugye “Ngugi” Barijane.

The appellants, also children of the deceased, claimed under an alleged will that had distributed the estate to several children from different mothers.

The trial Magistrate dismissed the validity of the will and declared the property to solely belong to the respondents' side of the family.

The appellants appealed, citing misapplication of the law and procedural irregularities.

Issues

1. Whether the late Nvugye “Ngugi” Barijane died testate (with a valid will)

2. Whether the suit land and house formed the homestead of the respondents to the exclusion of the appellants

3. Whether the eviction and injunctive orders issued by the trial court were lawful and just

⚖️ Holding

Resolution of the Issues

1. Whether the late Nvugye “Ngugi” Barijane died testate (with a valid will)

The appellants argued that the deceased left a valid will that was duly signed and thumb-printed by the testator in the presence of several witnesses, and that the will complied with the requirements under Section 47(1)(c) of the Succession Act.

They further argued that the stricter attestation requirements introduced by the 2022 amendment to the Succession Act did not apply to wills made prior to 31 May 2022, relying on Section 337(5).

However, the respondents challenged the validity of the will, pointing out that:

1. The testator, being illiterate, fell under the protection of the Illiterates Protection Act (Cap 78).

2. The document was neither properly attested under Section 2 of the Act nor certified by the writer under Section 3.

3. Several witnesses who were beneficiaries of the will (contrary to Section 51(1) of the Succession Act) rendered the bequests to them void.

   
   

The Court upheld the trial Magistrate’s finding that the alleged will was invalid due to:

1. Non-compliance with Sections 2 and 3 of the Illiterates Protection Act.

2. Lack of proper attestation and certification necessary for documents executed by illiterate persons.

3. The failure to demonstrate that the document was read and explained to the testator.

   
   

The Court cited the Supreme Court decision in Kasaala Growers Cooperative Society v Kakooza, which confirmed that documents not complying with the Illiterates Protection Act are inadmissible, and the person cannot be said to own its contents.

✅ The will was invalid. The deceased died intestate, and Section 20 of the Succession Act applied—property not disposed of by a valid will shall devolve according to the law of intestacy.

2. Whether the suit land and house formed the homestead of the respondents to the exclusion of the appellants

The trial Magistrate found in favour of the respondents, declaring the suit land and house as their exclusive ancestral homestead, having been occupied by their mother and developed jointly with the deceased. However, this approach failed to appreciate the effect of the intestacy finding.

The High Court held that once the will was invalidated, the property formed part of the intestate estate, and the distribution had to follow the Succession Act. Specifically:

1. Section 21 of the Act governs distribution of intestate estates.

2. Section 22(1) entitles the surviving widow (Kyempaye Florence) and lineal descendants to occupy the principal residential holding.

3. Section 22(3) provides that after the widow’s death, the residential holding devolves equally to the lineal descendants.

4. The remarriage of Tumwebaze Perpetua (mother of some appellants) disqualified her from any interest under Section 22(1).

   
   

Further, the High Court noted that ownership rights under intestate succession cannot be determined without a prior grant of letters of administration under Section 187 of the Succession Act.

✅ The trial court erred in granting exclusive rights to the respondents. The property formed part of the intestate estate and must be dealt with through administration proceedings. Title could not pass without letters of administration.

3. Whether the eviction and injunctive orders issued by the trial court were lawful and just

The trial court ordered the eviction of the appellants from the property and granted a permanent injunction restraining them from re-entry. These orders were premised on the finding that the respondents exclusively owned the homestead.

The High Court held that these orders were legally flawed because:

1. The Magistrate lacked jurisdiction to resolve succession matters via an ordinary civil suit, especially after finding the deceased died intestate.

2. The case raised fundamental questions of administration of a deceased’s estate, which could only be determined through an administration cause filed under the Succession Act.

3. In the absence of a grant of letters of administration, no party had legal authority to claim, distribute, or evict others from property belonging to the estate.

The Court observed that once the trial court invalidated the will, it failed to properly apply the legal framework for intestate succession, causing a miscarriage of justice.

✅ The eviction and injunction orders were unlawful. No person may establish a right to property in an intestate estate without a grant of letters of administration. The trial court should not have entertained the matter as a civil suit but as an administration cause.

🖊️ Commentary

This decision will likely influence how lower courts approach succession disputes—particularly those involving multiple families and informal wills. It affirms that procedural compliance, especially where illiteracy is involved, is not a technicality but a safeguard for vulnerable testators.

Read the full case below

Nguge Richard and Others v Tumushiime Sam and Nkurunziza Kenneth (Civil Appeal No 17 of 20.

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