Uganda High Court Rules Executors Cannot Transfer Probate Duties to Third Parties via Power of Attorney

Waboga David
6 days ago
9 min read

Introduction

The purpose of a power of attorney is to grant authority to another person (the donee or attorney) to act on behalf of the donor in relation to property or legal affairs. It is a common legal instrument used in various transactions, especially where the donor is unable to act personally due to absence, incapacity, or convenience. However, as was emphasized in the Supreme Court decision of Fredrick Zaabwe v Orient Bank Ltd & Others [SCCA No. 4 of 2006], such delegated authority is not absolute and must be exercised within the strict confines of the law.

When it comes to estate planning and administration, the limitations on the use of powers of attorney become even more pronounced. Although an executor or executrix may wish to delegate certain tasks for convenience, the law draws a clear distinction between delegable administrative functions and the core fiduciary duties that are personally vested in them by virtue of a grant of probate. These duties are not transferable in totality to a third party, particularly one who is neither a beneficiary nor legally appointed under the succession laws.

In a recent ruling, the High Court of Uganda (Kitgum Circuit) in Geertruida Catherine Odida (suing through Julius Peter Ochen) v Akwero Juliana Okot & Anor, Civil Suit No. 08 of 2023, has reaffirmed this principle. The Court held that an executrix who has received a grant of probate under the Succession Act, Cap. 268, cannot wholesale delegate her statutory mandate to a third party through a power of attorney. The Court found that such a delegation was a legal nullity, and that the donee (Julius Peter Ochen), having no legal or beneficial interest in the estate, lacked the requisite locus standi to sue on its behalf.

This decision not only reinforces the fiduciary nature of executorial duties under Ugandan law but also clarifies the non-delegable character of probate responsibilities—preserving the integrity and accountability expected in estate administration.

Background

The Plaintiff, Geertruida Catherine Odida, widow and Executrix of the Estate of the late Odida Francis, brought the suit through her attorney, Julius Peter Ochen, who held a power of attorney dated 18 April 2023.

The dispute involved land located in Rackoko “B” Central Village, Pader District, which the Plaintiff claimed formed part of her late husband's estate. She alleged that the Defendants — Akwero Juliana Okot (widow) and Okeny Geoffrey (son) of the late Okot Jalon — had fraudulently acquired title over the land and were trespassing.

The Plaintiff sought declarations of ownership, cancellation of title, and injunctive relief.

Preliminary Objections by Defendants

The Defendants raised five key preliminary objections:

Invalid Power of Attorney
Citing Section 146 of the Registration of Titles Act, they argued that the power of attorney was invalid for failing to specify names in Latin character.
No Locus Standi
The Donee (Julius Peter Ochen) lacked standing to sue as he was neither a beneficiary nor an executor.
Non-Existence of the Plaintiff in Law
The Plaintiff was incorrectly described as “Administratrix” instead of “Executrix” despite having a grant of probate.
Wrong Parties Sued
The suit improperly targeted the Defendants in their personal capacities as beneficiaries, rather than the estate of the late Okot Jalon.
Suit Abated
The Plaintiff failed to take out summons for directions within time under Order 11A Rule 1(6) of the Civil Procedure Rules.

Plaintiff’s Response

Through Counsel, the Plaintiff clarified that she was the Executrix, not “Administratrix”, and that reference to the latter was a mere typographical error.

She asserted that the power of attorney was valid, duly witnessed by a Commissioner for Oaths, and registered.

It was also argued that failure to extract summons for directions should not be fatal to the suit and that the Defendants were rightly sued due to their direct and personal trespass.

Issues for Determination

Whether the holder (Donee) of the Power of Attorney donated by the Executrix of the Estate of the late Odida Francis had locus standi to institute the suit on her behalf and/or on behalf of the Estate.
Whether the Power of Attorney was lawfully executed and therefore valid.
Whether the suit was instituted by a non-existent entity, considering the Plaintiff was described as “Administratrix” rather than “Executrix.”
Whether the suit was instituted against the wrong parties, given that the Defendants were sued in their personal capacity as beneficiaries and not as representatives of the Estate of the late Okot Jalon.
Whether the suit abated due to failure to extract summons for directions within time as required under Order 11A Rule 1(6) of the Civil Procedure Rules.

Legal Representation

The Plaintiff was represented by Counsel, Mr. Jude Ogik, holding brief for Counsel, Mr. Ronald Chanwat.

The holder of the Powers of Attorney, Julius Peter Ochen, was present.

The Defendants were represented by Counsel, Mr. Douglas Odyek, holding brief for Counsel, Mr. Daniel Evan Olwoch.

The Defendants were both present in Court. The cited Donor of the Power of Attorney was absent.

Resolution of Issues

1. Whether the holder (Donee) of the Power of Attorney donated by the Executrix of the Estate of the late Odida Francis had locus standi to institute the suit on her behalf and/or on behalf of the Estate

The Court held that the Donee of the Power of Attorney, Mr. Julius Peter Ochen, lacked locus standi to institute the suit either on behalf of the Executrix or the Estate of the late Odida Francis.

The Court emphasized that the powers conferred by the Grant of Probate to an Executrix are personal, fiduciary, and non-transferable in nature, and cannot be delegated wholesale through a Power of Attorney. Any attempt to do so amounts to a complete abdication of core statutory responsibilities, which is legally impermissible.

“It is apparent from the stipulated terms of the Power of Attorney that the Donor purportedly all but abdicated her entire responsibilities mandated upon her by virtue of the Succession Act, Cap. 268 as the Executrix of the Estate of the late Odida Francis in favour of the Donee.”

The Court made it clear that such delegation was inconsistent with the intentions of the law under the Succession Act (Cap. 268), particularly: Section 176 – which vests all property of the deceased in the executrix, sections 178, 179(1), 184, 187, 255 – which outline the legal standing and responsibilities of executors and administrators, sections 238 and Parts XXXIII–XXXVII – which provide the statutory framework for administration and distribution of estates.

“Her appointment as the Executrix and Trustee was by the express terms of the will of her late husband… and she received a Grant of Probate… establishing her status with the attendant roles and obligations.”

“The primary role accorded her as Executrix was to administer the Estate and… ultimately distribute the properties of the Deceased in accordance with his will.”

The Court also cited Section 261 of the Succession Act, which expressly provides:

“No person other than the person to whom probate or letters of administration has been granted shall have power to sue or prosecute any suit, or otherwise act as representative of the deceased…”

Additionally, the Donee (Ochen Julius Peter) was not a beneficiary of the estate and therefore did not fall under the limited exception to this rule that applies to certain beneficiaries seeking to protect estate interests:

“The Donee of the Powers of Attorney is not a beneficiary or otherwise a legatee… or for that matter is not even mentioned in his will.” [para. 23] “The Donee… did not have the requisite locus standi… either by virtue of the impugned and now nullified Power of Attorney… or by virtue of not being a beneficiary of the Estate thus not qualifying as an exception.” [para. 30]

The Court referenced several precedents reinforcing this position:

Israel Kabwa v Martin Banoba Musiga SCCA No. 52 of 1995 Locus classicus on the authority and role of legal personal representatives.

Dan Semwanga & Others v Natembo Kitaka Ruth & Others CACA No. 226 of 2022

and Otim Julius Peter v Pader District Local Government HCCS No. 50 of 2014 (Kitgum)

The Court also noted that while limited delegation of routine or professional tasks may be permissible, wholesale delegation is not:

“The Court hastens to highlight that… the prohibition of delegation… is not unequivocally absolute… limited allowances are made while preserving fiduciary and ethical duties… but this case involved virtually wholesale delegation.” [para. 31]

Conclusion on Issue 1

The Court concluded:

“The Plaintiff and Donor of the impugned Power of Attorney did not have the Authority to delegate wholesale… the entirety of the mandate conferred on her by the Grant of Probate, which purported action was null and void ab initio… and the Donee… did not have the requisite locus standi to institute this suit.”

The suit was therefore dismissed for want of locus standi.

2. Whether the Power of Attorney was lawfully executed and therefore valid

Although the Plaintiff argued that the Power of Attorney was properly witnessed and registered, the Court went beyond execution formalities to consider the scope of authority conferred. The problem was not merely how it was executed but what it purported to do.

The Court held that the Power of Attorney attempted an impermissible delegation of core fiduciary duties, which violated Section 261 of the Succession Act:

“…No person other than the person to whom [probate or letters of administration] has been granted shall have power to sue or prosecute any suit, or otherwise act as representative of the deceased…” quoting Section 261 of the Succession Act]

This provision was decisive. The Court found that even if the Power of Attorney had been valid in form, it was invalid in substance:

“The Donor purportedly all but abdicated her entire responsibilities mandated upon her… as the Executrix of the Estate… in favour of the Donee.” [para. 22] “Such delegation… was null and void ab initio.”

3. Whether the suit was instituted by a non-existent entity, considering the Plaintiff was described as “Administratrix” rather than “Executrix”

The Court recognized that the Plaintiff was erroneously referred to as an “Administratrix” instead of an “Executrix” in pleadings. However, it rejected the argument that this rendered the suit incompetent.

“The expressions Administrator or Administratrix and Executor and Executrix are often interchangeably or casually used or for that matter misused as is evident in this case… This impreciseness in terminology cannot be elevated to a contention that a party does not exist in Law…”

Thus, the third objection was overruled. The Court accepted that the Plaintiff’s legal status as Executrix was validly established by the Grant of Probate.

4. Whether the suit was instituted against the wrong parties, given that the Defendants were sued in their personal capacity as beneficiaries and not as representatives of the Estate of the late Okot Jalon

The Court did not expressly determine this issue since the suit was disposed of on grounds of lack of locus standi. However, it referenced that such matters were now moot.

“This is dispositive of the suit and the other issues raised are simply moot and academic…”

Nonetheless, the Plaintiff had argued that the Defendants were not sued merely as beneficiaries, but as direct trespassers on the land in question—raising questions of personal liability.

5. Whether the suit abated due to failure to extract summons for directions within time as required under Order 11A Rule 1(6) of the Civil Procedure Rules

Likewise, this issue was declared moot:

“This is dispositive of the suit and the other issues raised are simply moot and academic…”

However, it is worth noting the Plaintiff had argued that procedural delay in taking out Summons for Directions was not fatal, particularly given operational delays associated with the Kitgum High Court Circuit.

Conclusion

The High Court dismissed the suit on the sole ground that it was instituted by a person without legal standing. The ruling confirms that an executor or executrix under a Grant of Probate cannot legally delegate their core fiduciary duties, especially not to a third party who is a stranger to the estate.

“The suit was instituted without locus standi. The Plaint is hereby struck out and suit accordingly dismissed.” [para. 34] “Each of the parties shall bear their own costs.” [para. 36(ii)]

This case reaffirms the limits of powers of attorney in estate litigation and affirms the non-delegable nature of executorial responsibilities under Ugandan succession law

Disposition

The High Court issued the following orders:

The Plaint is struck out, and the suit is dismissed for want of locus standi.
Each party is to bear their own costs, in the spirit of fostering reconciliation between the two estates.

Key Takeaways

✅ Executors/Executrices Cannot Abdicate Core Duties via Power of Attorney

Once granted probate, the responsibility to administer the estate cannot be delegated wholesale to a third party. Any such attempt is a legal nullity.

✅ Standing Must Be Derived from Law or the Estate

Only a grantee of probate or, in limited cases, a beneficiary acting to protect the estate, may institute suit on behalf of the deceased.

✅ Terminological Errors (Executrix vs Administratrix) Are Not Always Fatal: Courts will not elevate typographical errors into substantive defects if the factual and legal basis is clear.

✅ Courts Uphold Substantive Justice

The ruling reaffirms that procedural irregularities cannot override substantive breaches of law such as instituting a suit without standing.

Read the full case