Bwerere & 2 Others v Nayebare (Miscellaneous Application 110 of 2023)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

Held that an executor jointly appointed under a will may be removed from a probate petition where he admits to participating in an unlawful distribution of estate property without grant of probate, and engages in competing processes to obtain letters of administration contrary to the existing will. Such conduct demonstrates unfitness for the office of executor or administrator. A caveat lodged over three months after the expiration of the court-prescribed notice period without prior application for enlargement of time is improperly before court and inconsequential.

Outcome

Respondent removed as executor and declared unfit for future appointment; interlocutory grant of probate issued to applicants subject to confirmation of will execution

Facts

The late Ezekiel Rwabucuju appointed the applicants and respondent as joint executors in his will dated 20 February 2020. The parties jointly petitioned for letters of probate in Probate Cause No. 123 of 2023. On the day scheduled for executor identification, the respondent was hospitalised and unable to attend. After his discharge, he repeatedly failed to appear for identification despite requests from the applicants. The applicants alleged the respondent was frustrating administration and illegally selling estate cattle in his capacity as heir. The respondent denied the allegations, claimed he was misled into signing the petition, and alleged the will was a forgery. He admitted on oath that together with other beneficiaries, he had participated in distributing estate properties without lawful authority, and that he was pursuing competing letters of administration through the Administrator General's office. Two beneficiaries lodged a caveat on 8 December 2023, over three months after the 14-day notice period expired.

Issues

1. Whether there are justifiable grounds for removal of the Respondent from Probate Cause No. 123/2023?

Orders

• The Respondent is hereby removed from the petition as executor.
• The Respondent is further found to be unfit to be a joint executor or Administrator in any future petition touching the suit estate for his own admission of intermeddling in the estate of the Late Ezekiel Rwabucuju by purporting to have distributed it without lawful authority.
• The Respondent is further directed to make good any loss occasioned to the estate through his purported distribution of the estate property without lawful authority.
• An interlocutory order issues granting the Applicants probate of the Will of the Late Ezekiel Rwabucuju subject to confirmation (proof) of execution of the same by any one of the attesting witnesses before me on the 15th day of April, 2024.

Rules and key headnotes

Legislation cited (15)

• Succession Act Cap. 162 s.180
• Succession Act Cap. 162 s.185
• Succession Act Cap. 162 s.189(1)
• Succession Act Cap. 162 s.189(2)
• Succession Act Cap. 162 s.189(3)
• Succession Act Cap. 162 s.191
• Succession Act Cap. 162 s.192
• Succession Act Cap. 162 s.238
• Succession Act Cap. 162 s.262
• Succession (Amendment) Act 2022 s.38(b)
• Succession (Amendment) Act 2022 s.52
• Succession (Amendment) Act 2022 s.255(2)
• Administrator General's Act s.4
• Civil Procedure Act s.96
• Civil Procedure Rules Order 51 r.6

Cases cited (1)

• Makula International v His Eminence Cardinal Nsubuga & Anor (Civil Appeal No. 4 of 1981)

The original judgment as reported. Read the original PDF before relying on any passage.