Where a Grant is Found to Have Been Obtained Through Proceedings that Were Defective in Substance, Subsequent Grants, Inventories, Accounts, and the Estate Distribution are a Nullity. High Court Rules

Snapshot.

The High Court at Kabale in Ngabirano David Turwomwe v Susan Turomwe & 2 Others has considered, among other matters, whether beneficiaries of an estate could, by consent or through the invocation of the inherent powers of court, replace executors appointed under a will in a manner inconsistent with the Succession Act.

The Court held that succession matters are principally governed by the Succession Act, and that the inherent powers of the court under section 98 of the Civil Procedure Act cannot be invoked to validate a grant that was made contrary to the substantive provisions of the Succession Act.

Lastly, the Court found that where a grant is obtained through proceedings that are “defective in substance”, the grant may be revoked or annulled for just cause. The Court further held that subsequent grants and acts founded upon the defective grant, including the filing of inventories, accounts and purported distribution of the estate, could not acquire legal validity merely because they had already been undertaken.

Facts.

The Plaintiff, Ngabirano David Turwomwe, and the three Defendants, Susan Turomwe, Brenda Naturinda and Atwine Rodger, were children and beneficiaries of the estate of the late Winifred Turwomwe (“the deceased”). The deceased died on 13 December 1993 at Kitovu Hospital, in what is now the City of Masaka.

The deceased had left a will. On 18 November 1994, the High Court, in MKA No. 43 of 1994, granted probate to the executors named in the will. Subsequently, in 2012, the High Court, through Miscellaneous Cause No. 003 of 2012, dealt with the administration of the estate following the death of two of the original executors. The Court substituted the executors and appointed the Defendants in their place.

The grant was subsequently renewed by the High Court on 9 January 2024 in Miscellaneous Cause No. 016 of 2023. The Plaintiff later challenged the legality of the subsequent grants and the manner in which the executors had been substituted.

Among other things, the Plaintiff contended that the appointment of the Defendants had not complied with the Succession Act and that various estate properties had either been omitted from or wrongly included in the estate inventory.

The Plaintiff therefore sought, among other reliefs, revocation of the grant of probate issued in Miscellaneous Cause No. 016 of 2023; removal of the Defendants as executors of the deceased's estate; a fresh grant of letters of administration; a declaration that the deceased's will was null and void; a declaration that the Plaintiff had been unlawfully evicted from estate property; a permanent injunction restraining the Defendants from evicting him or otherwise dealing with estate property; General damages; and Costs of the suit.

Issues before the Court

At the conclusion of the hearing, the Court framed the following issues under Order 15 rule 3 of the Civil Procedure Rules;

1. What was the effect of a defective grant of probate?

2. What was the effect of a distribution, inventory and account filed under a defective grant?

3. What remedies were available to the parties?

The Court explained that it had framed the issues to promote judicial efficiency by identifying only the triable questions necessary to resolve the dispute making reference to NIC General Insurance Company Limited v Uganda Revenue Authority, Miscellaneous Application No. 1513 of 2025, as an example of that approach.

LEGAL REPRESENTATION

1. The Plaintiff was represented by Rev. Ezra Bikangiso of Bikangiso & Co. Advocates.

2. The Defendants were represented by Mr. Christopher Bumpenje of Bumpenje & Co. Advocates.

SUBMISSIONS OF THE PARTIES

Plaintiff's Submissions

The Plaintiff submitted that the grant issued to the Defendants in Miscellaneous Cause No. 016 of 2023 was illegal and ought to be annulled. The Plaintiff relied on the principle established in Makula International Limited v His Eminence Cardinal Nsubuga & Another (1982) HCB 11, where the Court held that

“An illegality once brought to the attention of the court overrides all pleadings and the court cannot sanction an illegality.”

The Plaintiff's case was that the substitution and subsequent grants had not complied with the substantive provisions of the Succession Act. The Plaintiff further argued that the fact that some beneficiaries had participated in or consented to the process could not cure an illegality.

Although the Plaintiff admitted in rejoinder to having participated in the Memorandum of Understanding through which the original executors were replaced, he maintained that such participation did not amount to consent to the subsequent administration of the estate in an unlawful manner.

Defendants' Submissions

The Defendants defended the impugned grant and submitted that the grant had not been obtained solely through consent but through a Notice of Motion supported by an affidavit, brought under section 98 of the Civil Procedure Act.

The Defendants further argued that the Plaintiff himself had participated in introducing the new administrators to the family and had therefore benefited from the grant. It was submitted that the impugned grant had received the consent and approval of the beneficiaries following the renunciation or inability of the previous administrators/executors to continue administering the estate.

The Defendants further contended that there was no law prohibiting the replacement of executors named in a will, provided that the process was sanctioned by the Court.

The Defendants therefore urged the Court to uphold the grant.

COURT'S FINDINGS

The Succession Act is the Governing Substantive Law in Succession Matters

The Court considered the relationship between the Succession Act and the Civil Procedure Act. It was noted that the deceased had left a valid will and had therefore died testate rather than intestate. The Court referred to section 1 of the Succession Act, which provides that, subject to the Act and other applicable laws, the Succession Act constitutes the law applicable to cases of both intestate and testamentary succession.

The Court reiterated the principle in David Sejjaaka Nalima v Rebecca Musoke, Civil Appeal No. 12 of 1985 [1986] UGSC 16, in which the Supreme Court considered the relationship between general and specific legislation.

The Court quoted Odoki JA, as he then was, as stating that;

“That general provision must however, be read subject to the specific provisions of the Ordinance which is also a later enactment.”

The Court accordingly held that where a specific statutory provision governs succession, that provision must prevail over a general procedural provision.

Regarding the application of Section 98 of the CPA

The Defendants had relied heavily upon section 98 of the Civil Procedure Act, which preserves the inherent powers of the court to make orders necessary for the ends of justice or to prevent abuse of the process of the court.

The Court, however, rejected the proposition that section 98 could be used to determine the legality of a grant in disregard of the Succession Act.

The Court stated that;

“I find that Section 98 of the Civil Procedure Act cannot be invoked to determine the legality of a grant of probate in the face of the clear language of the application section, Section 1 of the Succession Act.”

The Court further held that:

“The relevant substantive law is the Succession Act, and the procedural law is the law relating to civil procedure. Jurisprudentially, the latter cannot oust the former.”

The Court recognised that civil procedure governs how succession disputes may be litigated, but procedural powers cannot be used to defeat or circumvent substantive succession law.

Regarding the validity of the Original Grant of Probate

The Court distinguished the original probate granted in MKA No. 43 of 1994 from the subsequent grants. It found that the initial probate had been properly granted. The Court noted that probate had been granted within one year of the deceased's death, thereby complying with section 240(2) of the Succession Act, which requires an application for probate to be made within one year from the date of death of the testator.

The Court also found that the will, having been written in Rukiga, had been translated and that this complied with the requirements of section 241 of the Succession Act.

The Court therefore found no basis for invalidating the original grant. It was further held that a challenge to the original grant should ordinarily have been brought through the procedure prescribed by the Succession Act, including a caveat under section 249.

The Court observed that the Plaintiff had been listed as one of the children of the deceased and that, in the absence of a timely challenge to the original grant, there was no basis for reopening the validity of that initial grant after the statutory period had passed.

Regarding the Substitution of Executors which was not in accordance with the Succession Act.

The Court examined the proceedings in Miscellaneous Cause No. 003 of 2012. The deceased's will had appointed three executors. Following the death of two of the executors, six of the eight children of the deceased consented to the appointment of the Defendants in their place. However, the Court found that this substitution was contrary to section 183 of the Succession Act.

The court reiterated Section 183 which provides:

“When probate has been granted to several executors or executrixes, and one of them dies, the entire representation of the testator or testatrix accrues to the surviving executor or executrix or executors or executrixes.”

The Court consequently found that the surviving executor or executors, rather than the beneficiaries through a consensual arrangement, were to continue the representation of the deceased's estate in accordance with the statutory scheme.

The Court agreed with the Plaintiff's position that a grant made outside the statutory framework could not be sustained through the inherent powers of court.

On the Consent of beneficiaries that could not cure the illegality

The Court acknowledged that the Plaintiff had participated in the MOU that resulted in the replacement of the original executors. Nevertheless, the Court held that such participation did not cure the illegality.

The Court stated that;

“Participation by an interested party in an illegal act, does not cure any act of its illegality.”

The Court further rejected an argument based upon Article 126(2)(e) of the Constitution, concerning undue technicalities.

It stated that;

“Article 126(2)(e) of the Constitution refers to undue technicalities. This article does not authorise abridgment of any substantive law.”

The Court consequently drew a clear distinction between procedural technicalities and substantive statutory requirements.

Consent, acquiescence, participation or even an order of court cannot, according to the judgment, be used to defeat a mandatory substantive statutory requirement.

Regarding The Fact That Subsequent Grants Were Also a Nullity

Having found that the 2012 proceedings were defective, the Court considered the legal consequences for the subsequent grant made in Miscellaneous Cause No. 016 of 2023.

The Court held that the subsequent grant was founded upon the defective proceedings and therefore could not stand independently.

The Court stated that;

“Having made this finding, the subsequent grant in Misc. Cause No. 16 of 2023 and any actions made thereunder are also a nullity, and of no legal effect.”

The Court accordingly concluded:

“I find that the proceedings in Probation Cause No. 003 of 2012 were defective in substance and are subject of annulment for just cause.”

The first issue was therefore resolved in favour of the Plaintiff.

On the Meaning of ‘MAY’ in Section 230 of the Succession Act

The Defendants had argued that the use of the word “may” in section 230(1) of the Succession Act gave the Court a discretion whether or not to revoke or annul a grant.

Section 230(1) provides:

“The grant of probate or letters of administration may be revoked or annulled for just cause.”

The Court rejected the argument that the provision gave it an unrestricted discretion to leave an invalid grant in place once just cause had been established.

The Court held that;

“I find this legislative sentence complete and unambiguous in its cause and effect.”

It further explained:

“It offers court only two options, revocation or annulment.”

According to the Court, revocation applies to an active grant, whereas annulment applies to a grant that has lapsed.

The Court therefore held that once “just cause” is established under section 230(2), the Court must either revoke or annul the grant.

Regarding the effect of distribution, Inventory and Accounts under a Defective Grant.

The second issue concerned acts already undertaken by the Defendants under the impugned grant. The Court considered section 230(2)(a) of the Succession Act, which identifies as just cause circumstances where

“the proceedings to obtain the grant were defective in substance.”

The Court had already found that the grant was obtained through proceedings that were fatally defective. The Court considered that the subsequent filing of inventories, accounts and distribution of estate property could nevertheless remain valid.

The Court stated that;

“Any filing of inventory, account or distribution under Section 273 of the Succession Act, similarly, would be invalid as it was made without legal authority.”

The Court went further and stated:

“I hold that no distribution absent validation can occur under a defective grant.”

As such, the implication is that an administrator or executor cannot rely merely on the fact that distribution has already taken place to argue that an otherwise defective grant has acquired validity.

Regarding the validity of the Will Which Was Distinguished From The Validity of Subsequent Grants

The Court made an important distinction between the validity of the deceased's will and the legality of the later grants. It found that there was a valid will and that the original grant of probate was valid. Consequently, the Plaintiff's challenge to the validity of the will could not succeed simply because later proceedings concerning the administration of the estate were defective.

The Court held that the cause of action challenging the validity of the will was limited by the statutory period within which the will could be admitted to probate. The Court therefore treated the disputes remaining in the estate as principally concerning particular estate properties rather than the validity of the entire testamentary instrument.

Proper route for unresolved estate-property disputes

The Court reportedly found that the will itself was valid and that the initial 1994 probate grant was valid. It therefore held that the remaining disputes concerned particular properties rather than the estate in its entirety. Those disputes included allegations that assets had been omitted from the estate and allegations that assets not belonging to the deceased had been wrongly included.

The Court stated that all beneficiaries could apply for letters of administration if all executors had since died, referring to section 4(1) of the Administrator General’s Act. It also explained that the Administrator General had powers to inquire into and ascertain the deceased’s property.

The Court further referred to the certificate of no objection under section 5(1) of the Administrator General’s Act and stated that the inquiry connected with that process could assist in determining the true extent of the estate. Once a valid grant was made, the administrators would be required to exhibit an inventory and account under section 273(1) of the Succession Act and final accounts under section 273(2).

Holding

The Court ordered as follows;

1.The plaintiff’s suit partially succeeded.

2.Probate Grant No. 003 of 2012 was annulled.

3.The probate grant in Miscellaneous Cause No. 016 of 2023 was annulled.

4.Miscellaneous Application No. 002 of 2026 was struck out as having been overtaken by events.

5.The plaintiff was awarded one third of the taxed costs of the suit.

The Court gave the reduced costs award because the plaintiff had consented to the illegal substitution and appeared to have benefited from the estate. At the same time, the Court reportedly criticised the defendants for continuing to defend the defective arrangement after the illegality had been brought to their attention, stating that they should have taken immediate steps to correct it.

REMEDIES

Having resolved the three issues, the Court concluded that the Plaintiff's case succeeded only in part. The Court annulled the defective grants but did not grant every relief sought by the Plaintiff.

The Court further considered the Plaintiff's own conduct and noted that the Plaintiff had participated in the illegal substitution of the executors and appeared to have benefited from the estate.

For that reason, the Court declined to award the Plaintiff the entirety of the costs.

The Court nevertheless considered that the Defendants ought to have taken steps to correct the illegality once it had been brought to their attention.

The Court stated that

“upon the illegality being pointed out the defendants should have taken immediate steps to correct the illegality rather than continue defending it in court.”

david ngabirano v susan turwomwe.rtf

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KEY TAKEAWAYS

The Succession Act is the primary substantive law governing succession

The judgment reinforces that succession disputes must be determined principally under the Succession Act. Procedural legislation may supplement the Succession Act but cannot override its substantive requirements.

Inherent powers cannot be used to validate an illegal succession process

The inherent powers of court under section 98 of the Civil Procedure Act cannot be invoked to circumvent mandatory provisions of the Succession Act.

The Court held that:

“The relevant substantive law is the Succession Act, and the procedural law is the law relating to civil procedure. Jurisprudentially, the latter, cannot oust the former.”

Beneficiaries cannot cure an illegality through consent

Even where beneficiaries agree to a particular arrangement, their consent does not automatically validate an act that is prohibited by substantive law.

The Court expressly held:

“Participation by an interested party in an illegal act, does not cure any act of its illegality.”

The death of one executor does not automatically justify appointment of new executors by beneficiaries

Where probate has been granted to several executors and one dies, section 183 of the Succession Act provides for the representation to accrue to the surviving executor or executors.

Any departure from the law must have a proper legal foundation.

A defective grant may invalidate subsequent acts

Where a grant is found to have been obtained through proceedings that were defective in substance, acts undertaken pursuant to that grant may equally lack legal effect. This includes inventories, accounts and purported distribution.

Distribution under a defective grant does not become valid merely because it has occurred

The Court held that;

“I hold that no distribution absent validation can occur under a defective grant.”

Consequently, parties dealing with estate property should establish the validity of the underlying grant before undertaking substantive transactions or distribution.

There is a distinction between an invalid will and an invalid grant

The Court found that the deceased's will and the original probate grant were valid while subsequent grants were defective.

The invalidity of a subsequent grant therefore does not necessarily render the underlying will invalid.

Section 230 provides for revocation or annulment for just cause

Once just cause within section 230(2) is established, the Court held that it has two statutory options: revocation of an active grant or annulment of a lapsed grant.

Undue technicalities cannot be used to defeat substantive law

Article 126(2)(e) of the Constitution should not be understood as giving courts or litigants authority to disregard substantive statutory requirements.

As the Court observed that;

“This article does not authorise abridgment of any substantive law.”

Conclusion

The judgment carries an important practical warning for executors, administrators and beneficiaries. Where a defect in the administration of an estate is brought to the attention of the parties, continuing to rely upon the defective process may expose subsequent acts to challenge and may have adverse consequences on costs.