Salient features of a valid will in Uganda
The making of wills in Uganda is mainly governed by the succession Act of Uganda, Cap 162.
“Except as provided by this Act, or by any other law for the time being in force, the provisions in this Act shall constitute the law of Uganda applicable to all cases of intestate or testamentary succession”
Persons capable of making wills.
- Every person of sound mind and not a minor may by will dispose of his or her property.
- A married woman may by will dispose of any property which she could alienate by her own act during her life.
- A person who is deaf or dumb or blind is not thereby incapacitated for making a will if he or she is able to know what he or she does by it.
- A person who is ordinarily insane may make a will during an interval in which he or she is of sound mind.
- No person can make a will while he or she is in such a state of mind, whether arising from drunkenness or from illness or from any other cause that the person does not know what he or she is doing.
where a person, by his or her will, disposes of all his or her property without making reasonable provision for the maintenance of his or her dependent relatives, Where a person dies domiciled in Uganda leaving a dependent relative, then, if the court, on application by or on behalf of the dependent relative of the deceased, is of opinion that the disposition of the deceased’s estate effected by his or her will is not such as to make reasonable provision for the maintenance of that dependent relative, the court may order that such reasonable provision as the court thinks fit shall, subject to such conditions or restrictions, if any, as the court may impose, be made out of the deceased’s estate for the maintenance of that dependent relative.
“dependent relative” includes— (i) a wife, a husband, a son or daughter under eighteen years of age or a son or daughter of or above eighteen years of age who is wholly or substantially dependent on the deceased; (ii) a parent, a brother or sister, a grandparent or grandchild who, on the date of the deceased’s death, was wholly or substantially dependent on the deceased for the provision of the ordinary necessaries of life suitable to a person of his or her station;
“child”, “children”, “issue” and “lineal descendant” include legitimate, illegitimate and adopted children;
It is not necessary that any technical words or terms of art shall be used in a will, but only that the wording shall be such that the intentions of the testator can be known from the wording.
Implied inclusion of illegitimate and adopted children.
In the absence of any intimation to the contrary in the will, “child”, “son” or “daughter” or any word which expresses those relationships is to be understood as including an illegitimate child and an adopted child.
Legal Capacity
The person making the will must be of sound mind at the time of the creation of the will. The test to determine if the person has the requisite capacity is if the testator knows that he or she has made a will, understands its effect, understands the nature and extent of the
The will must have been executed free of fraud, duress, undue influence or mistake
- Fraud involves false statements of material facts, known to be false by the party making the statements, Made with the intention of deceiving the testator who is actually deceived and that cause the testator to act in reliance on the false statements.
- Fraud can also take the form of the testator being deceived as to the contents of the document he is signing.
- Fraud can also be inferred from the testator making a will or writing a provision that relies upon a false representation of a material fact made to him by one who knows it to be false
- The standard of proof for undue influence is that it must be beyond mere suggestion, innuendo or suspicion. Merely having a motive, the opportunity or even the ability to exert undue influence is not sufficient to prove it actually happened.
- Fraud can also be inferred if there exists a confidential relationship between the testator and a beneficiary especially if the beneficiary played an active role in procuring the will. However no presumption of undue influence arises from the confidential relationship that normally exists between a husband and wife.
- If a testator somehow signs a document purporting to be his/her will but it is the wrong document then there is no will.
- A testator’s will cannot be amended after his death to include anything he/she could have omitted.
- A provision included in a will by mistake may be omitted and separated from the rest of the will just in the same way that an illegal or conflicting provision in a contract can be eliminated leaving the rest of the contract valid.
- Attorneys or Lawyers are held at a higher standard when it comes to undue influence claims. A bequest to an attorney is particularly susceptible to a claim of undue influence because of the confidential and fiduciary nature of the attorney-client relationship. However if the will was prepared by another attorney, whereby the testator received independent legal advice then no presumption of undue influence arises.
- Ultimately, it is the testator’s duty to ensure that his/her will accurately reflects his/her intentions. This is crucial because once the testator dies; there is usually no way to rectify any problems with the will. Even Courts will not step in to re-write someone’s will.
- A will shall not be considered as insufficiently attested by reason of any benefit given by the will, either by way of bequest or by way of appointment, to any person attesting it, or to his wife or her husband, but the bequest or appointment shall be void so far as concerns the person so attesting, or the wife or husband of that person, or any person claiming under either of them.
- A legatee under a will shall not lose his or her legacy by attesting a codicil which confirms the will.
- No person, by reason of interest in, or of his or her being an executor of, a will, is disqualified as a witness to prove the execution of the will or to prove the validity or invalidity of the will.
- A witness must be aware that the instrument they are witnessing is a will although it is not necessary to know the contents of the will or document he or she is signing.
- Even if a will is handwritten, there must still be witnesses who see the testator sign his or her will. The witnesses may also need to attest that they saw the other witness sign. The witnesses sign and date the will. They may also sign an affidavit that states their authentication of the will and their signature.
Owned Property
A will must dispose of only the property that is part of the decedent’s estate. It may list all property and assets that the testator owned at the time the will was created as part of the text of the will or in a separate schedule that is referenced in the will.
Beneficiaries
The will should state that the property is being disposed of by transferring it to a particular person or entity that is ascertainable. This may be to a person, business, group of people (such as my children or my living grandchildren) or charitable organization.
Executor
An executor should also be named in a will. This is the individual who follows the instructions of the will. If an executor is not listed, the court may appoint one.
Unprivileged wills.
Except as provided by the Succession 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—
- 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;
- 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;
- 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 acknowledgment 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.
Incorporation of papers by reference.
If a testator, in a will or codicil duly attested, refers to any other document then actually written, as expressing any part of his or her intentions, that document shall be considered as forming a part of the will or codicil in which it is referred to.
Privileged wills.
Any member of the armed forces being employed in an expedition or engaged in actual warfare, or any mariner being at sea may if he or she has completed the age of eighteen years, dispose of his or her property by a will made as is provided in section 53 (hereafter referred to as a “privileged will”).
Mode of making privileged wills.
(1) Privileged wills may be in writing or may be made by word of mouth.
(2) The execution of a privileged will shall be governed by the following provisions—
- the will may be written wholly by the testator with his or her own hand, and in that case it need not be signed nor attested;
- the will may be written wholly or in part by another person, and signed by the testator, and in that case it need not be attested;
- if the instrument purporting to be a will is written wholly or in part by another person, and is not signed by the testator, it shall be considered to be his or her will if it is shown that it was written by the testator’s directions, or that he or she recognised it as his or her will; but if it appears on the face of the instrument that the execution of it in the manner intended by the testator was not completed, the instrument shall not, by reason of that circumstance, be invalid, if his or her nonexecution of it can be reasonably ascribed to some cause other than the abandonment of the testamentary intentions expressed in the instrument;
- if the testator has written instructions for the preparation of his or her will, but has died before it could be prepared and executed, such instructions shall be considered to constitute his or her will;
- if the testator has, in the presence of two witnesses, given verbal instructions for the preparation of his or her will, and they have been reduced into writing in his or her lifetime, but he or she has died before the instrument could be prepared and executed, such instructions shall be considered to constitute his or her will, although they may not have been reduced into writing in his or her presence, nor read over to him or her;
- A testator may make a will by word of mouth by declaring his or her intentions before two witnesses present at the same time;
- A will made by word of mouth shall be null at the expiration of one month after the testator has ceased to be entitled to make a privileged will.
