High Court Reaffirms The Legal Principle That Separated Spouses May Forfeit Their Inheritance Rights, Even if They Remain Married, if They Are Not Part of The Deceased’s Household at The Time of Death

Brief of the case Makumbi v Nabatanzi & Nabatanzi & 3 Others v Nakiburara & 2 Others (Civil Suit Nos. 84 &15 of 2021) [2024] UGHCFD 86 (22 October 2024)

Area of law: Family Law- Estate Planning

Topic: Succession Law—validity of a will—letters of administration—rightful beneficiaries—validity of customary marriage—effect of prolonged separation on inheritance—intermeddling in an estate

Introduction Imagine being legally married for decades, yet losing all rights to your spouse’s estate because you lived apart at the time of their death.

Today, we revisit the decision of Ethel Makumbi v. Nabatanzi Maureen (H.C.C.S No. 84 of 2021), where the High Court declared that separation, not just divorce, can strip a surviving spouse of inheritance rights, even if the marriage was never formally dissolved.

This case reveals a harsh reality:

A 25-year separation left the legally wedded wife with no claim to her late husband’s estate.

A disputed will stood firm, despite challenges over DNA and marriage validity.

The court ruled: "A testator’s wishes prevail, even over blood ties."

Did the court get it right?

✅ Valid will = No inheritance for estranged spouse.

❌ Customary marriage = Void.

⚖️ No costs awarded—but was justice served?

But what does the law say?

The law under Section 26 of the Succession Act Cap 268, as amended, is to the effect that

26 (1) "A surviving spouse of an intestate shall not take any interest in the estate of the intestate if, at the death of the intestate, the surviving spouse was separated from the intestate as a member of the same household."

26 (2) "Subsection (1) shall not apply where—"

"(a) the surviving spouse has been absent on an approved course of study in an educational institution;"

"(b) the intestate was, at the time of his or her death, the one who had separated from the surviving spouse as a member of the same household; or"

"(c) the intestate is the one who caused the separation."

26 (3) "Notwithstanding subsection (1), a court may for good cause, on application made within six months after the death of the intestate, by or on behalf of a surviving spouse, declare that subsection (1) shall not apply to the surviving spouse."

26 (4) "The declaration made under subsection (5) shall authorise the surviving spouse to take no more than—"

"(a) a proportion of the property of the intestate that he or she is entitled to under section 23; or"

"(b) a proportion of the property that was acquired before the surviving spouse separated from the intestate as a member of the same household."

26 (5) "For the avoidance of doubt, a child or lineal descendant born of the surviving spouse and the intestate shall be entitled to benefit from the estate of the intestate, notwithstanding the separation of the surviving spouse from the intestate as a member of the same household."

Background of the case

The Plaintiff (Ethel Makumbi), a widow of the late Patrick Makumbi, was married on 2nd September 1972.

They had one daughter, Belinda Makumbi.

Patrick Makumbi died on 15th November 2020.

Plaintiff’s Claims

The plaintiff claimed that the Defendant and her children lodged a caveat against her application for Letters of Administration (Admin Cause No. 173 of 2021).

Furthermore, the Defendant unlawfully interfered with the estate.

She further claimed that the Defendant and her children are not rightful beneficiaries.

The defendant sought an Injunction to stop the defendant from acting as a widow or from managing the estate.

The Plaintiff also sought that the Defendant must account for estate dealings.

Lastly, the Plaintiff sought letters of administration to administer the estate, plus general damages & costs.

Plaintiff’s Arguments

The deceased died intestate (no valid will).

Alleged Will (Exhibit P.3) is invalid (not signed same day, witnesses signed before the testator.

Margaret Kyegombe,, the named executrix in the Will never applied for probate.

The Defendant falsely claims marriage only "kukyala" – not a formal marriage.

The DNA Test (Exhibit P.7). Only Belinda is a biological child; the defendant’s children are not.

The plaintiff was never divorced from the deceased.

Defendant’s Counterclaims

The defendant counterclaimed that the Plaintiff has no rights since they separated in 1995, and was compensated with UGX 40M for property.

The defendant was customarily married to the deceased, with whom they had cohabited since 2009 and formalised the marriage in 2013.

The Will is valid and was never challenged in court.

The defendant also argued that the DNA test is unreliable (blood taken after burial, minors’ samples taken forcibly).

That the Defendant & her children are rightful beneficiaries.

The defendant further claimed that the Plaintiff intermeddled with estate (with Belinda & Margaret Kyegombe).

Key Issues

Was the defendant legally married to the deceased?

Is the Plaintiff entitled to Letters of Administration?

Who are the rightful beneficiaries?

Has there been intermeddling, and by whom?

Is the Will valid and enforceable?

What remedies are available?

Holding

1. Validity of Customary Marriage

The Court held that the defendant/counter-claimant, Maureen Nabatanzi, was not legally married to the late Patrick Makumbi. The deceased had contracted a monogamous marriage under the Marriage Act with the plaintiff, Ethel Makumbi, in 1972.

Although the parties later separated, the marriage was never legally dissolved.

Relying on Section 36 of the Marriage Act, the Court emphasized that a person married under the Act is incapable of contracting a valid customary marriage during the subsistence of that statutory marriage.

The defendant's purported customary union in 2015 was therefore void.

2. Validity of the Will

While the plaintiff challenged the will on grounds that the witnesses and testator signed on different dates, the Court held that the will met the substantive requirements of Section 50 of the Succession Act (as it then applied).

The deceased authored the will in his own handwriting, and there was no evidence of forgery or coercion.

The Court cited In the Estate of Mann [1936–1942] 2 All ER 146, holding that where circumstances are clear and well ascertained, the rationale for strict compliance with attestation formalities is diminished.

The Court affirmed that all witnesses signed the will at the deceased’s request, even if not contemporaneously with the testator.

📌 Rule of Law Principle: Formalism should not override substantive justice where the testator’s intent is clear and free from fraud.

The Court held that the rationale of Section 50 of the Succession Act (as it then applied) was to ensure that the will presented is valid and eliminate the possibility of forgery or fraud. The section is designed to obviate the possibility of fraud.

Section 50 of the Succession Act Cap 162 (as it applied then) provided as follows:

"Except as provided by this Act or other law for the time being in force, every testator not being a member of the armed forces employed in an expedition or engaged in actual warfare, or a mariner at sea, must execute his or her will according to the following provisions-

(a)The testator shall sign or affix his or her mark to the will, or it shall be signed by some other person in his or her presence and by his or her direction;

(b) The signature or mark of the testator or the signature of the person signing for him or her shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will;

(c) The will shall be attested by two or more witnesses, each of whom must have seen the testator sign or affix his or her mark to the will, or have seen some other person sign the will in the presence and by the direction of the testator, or have received from the testator a personal acknowledgement of his or her signature or mark, or of the signature of  that other person; and each of the witnesses must sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."

The handwritten will of the late Patrick Makumbi, though executed under irregular circumstances, was valid under Section 50 of the Succession Act (as it then applied), having been authored by the deceased without evidence of forgery or fraud.

3. Entitlement to Letters of Administration

The Court found that the plaintiff, Ethel Makumbi, was not entitled to administer the estate, whether under a will or intestacy. Not only had she separated from the deceased over 25 years prior, but the will named an executor (though who failed to apply for probate).

Under Section 30 of the Succession Act, which has now been revised as Section 26 of the Succession Act Cap 268 as amended, a spouse who is no longer a member of the deceased’s household is disqualified from inheriting intestate.

The Court endorsed the interpretation in Elizabeth Nalumansi v. Jolly Kasande, S.C.C.A No. 10 of 2015, which treats separation as a factual, not merely legal issue.

📌 Rule of Law Principle: Equitable application of the law demands that parties who have functionally exited a marriage should not benefit from its legal incidents.

 Section 30 has now been revised as Section 26 of the Succession Act Cap 268 was interpreted to bar inheritance rights for spouses separated in fact, not just by court order, strengthening the principle that the law considers the substance of family relations over their form.

4. Beneficiaries under the Will

The Court held that the beneficiaries of the estate are those named in the will, regardless of biological relationship.

Since the testator freely named them, paternity issues were irrelevant.

The plaintiff, not being a beneficiary, had no standing to contest the will on those grounds.

📌 Rule of Law Principle: Testamentary freedom must be respected unless invalidated by fraud, duress, or illegality.

Named beneficiaries in a will are protected, regardless of biological or legal relationship to the testator.

5. Allegations of Intermeddling

The Court rejected the claim that the defendants intermeddled with the estate.

The evidence showed that actions taken, such as evicting non-paying tenants, were aimed at preserving estate assets, in line with Section 268 of the Succession Act.

The court distinguished lawful preservation of estate property from unlawful interference, ensuring that well-intentioned caretaking by family members does not unjustly criminalize them, as long as accountability is maintained

📌 Rule of Law Principle: Preserving estate property is not intermeddling: Where there’s no probate or letters of administration yet, safeguarding estate assets in good faith does not amount to unlawful action.

Key Takeaways

1. Customary marriages cannot override existing statutory marriages: A church or civil marriage must be legally dissolved before entering another recognized union.

2. Wills may be valid despite procedural lapses, if authored by the testator without signs of coercion, forgery, or fraud.

3. Separated spouses may lose inheritance rights, even if still legally married, if not part of the deceased’s household at death.

4. Named beneficiaries in a will are protected, regardless of biological or legal relationship to the testator.

5. Preserving estate property is not intermeddling: Where there’s no probate or letters of administration yet, safeguarding estate assets in good faith does not amount to unlawful action.

6. The Administrator General can be appointed to manage estates where named executors fail to act, ensuring continuity in estate administration.

Conclusion

This decision reinforces the authority of a valid statutory marriage, it also affirms the enforceability of substantively valid wills despite minor procedural defects.

Most importantly, it serves as a cautionary tale to separated couples that prolonged physical and emotional separation, even without formal divorce, can extinguish a surviving spouse’s right to inherit under the Succession Act.

The Court’s pragmatic approach to issues of separation, marriage validity, and estate administration underscores the growing emphasis on the substance of relationships over mere legal form.

Executors, spouses, and would-be beneficiaries alike must act diligently, lawfully, and in good faith—lest they forfeit their claims to the estates of their loved ones.

Read the full case below

Makumbi v Nabatanzi Nabatanzi 3 Others v Nakiburara 2 Others (Civil Suit Nos 84 15 of 2.

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