Wakilii

John Katende and Another v Dan Byamukama (Administration Cause 201 of 1992)

High Court · [1992] UGHC 99 · 1992 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by originating summons to set aside caveat lodged against grant of probate
Decision
Caveat set aside and probate to be sealed in favour of plaintiffs as executors, subject to directions not to deal with properties not belonging to the estate

Observed later treatment

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Holding

A caveat lodged before grant of probate is sealed is not lodged too late, even if filed after the executors have been identified and the grant is due to be sealed. The court cannot inquire into the ownership of specific properties bequeathed in a will at the probate stage. Disputes over whether property included in a will belongs to the deceased are matters for action against the executors after appointment. The caveat was set aside and grant of probate ordered to be sealed, with directions that executors not intermeddle with properties not belonging to the estate.

Outcome

Caveat set aside and probate to be sealed in favour of plaintiffs as executors, subject to directions not to deal with properties not belonging to the estate

Facts

The plaintiffs, named as executors in the will of late Jane Rwomwiju dated 3/1/91, applied for probate in Administration Cause No. 201 of 1991. The defendant, Dan Byamukama, lodged a caveat on 20/8/92, claiming an interest in the estate as an executor named in the will of late Ambrose Rwomwiju, who had predeceased Jane Rwomwiju. The deceased persons were allegedly husband and wife. The caveat was lodged after the petition had been advertised in newspapers on 29/5/1991 and after executors had been identified and grant was due to be sealed. The defendant contended that the will of Jane Rwomwiju included property belonging to the estate of Ambrose Rwomwiju, particularly plot 10 Bunga Hill and property in Ibanda. Plaintiffs argued the caveat had no justifiable cause and that the estate was suffering, with one beneficiary needing medical treatment in London and a property scheduled for sale on 5/12/92 due to an unpaid loan.

Issues

  1. Whether the deceased left a valid will dated 3/1/91 appointing the plaintiffs as executors.
  2. Whether the plaintiffs as executors of the deceased's will and testament are entitled to apply for probate.
  3. Whether the matters deponed to by the defendant have any relevance to a grant of probate to the plaintiffs who are executors of the last will of the deceased.
  4. Whether the defendant's caveat was lodged without justifiable cause and ought to be set aside and/or vacated.

Orders

  • Caveat lodged by the defendant on 20/8/92 against the plaintiffs' petition for grant of probate set aside.
  • Grant of probate to be sealed in favour of the plaintiffs/executors.
  • Plaintiffs directed not to intermeddle with properties which do not belong to the estate of late Jane Rwomwiju although they may be in her will.
  • Each party to bear its own costs.

Rules and key headnotes

Succession & Estates — Caveats — Timing of Lodgment — Effect of Delay Before Grant Sealed
There is no hard and fast rule when a court can refuse to entertain a caveat on the ground that it was lodged late, provided it is lodged before the grant of probate is sealed. A caveat is lodged too late only when it is filed after the grant has been sealed, at which point the grant is complete and the caveat is of no effect.
Succession & Estates — Grant of Probate — Scope of Inquiry at Probate Stage — Contents of Will
At the stage of considering a petition for grant of probate, the court investigates only the validity of the will as far as its execution is concerned—whether it was signed by the maker and attested, whether the maker was of sound mind, and whether executors were properly appointed. The court cannot embark on inquiring about the contents of the will or the ownership of specific properties bequeathed without the deceased being legally represented by duly appointed executors.
Succession & Estates — Grant of Probate — Effect on Disputed Property — Remedy Against Executors
Granting probate to executors does not mean that properties included in the will which do not belong to the deceased are allowed to be taken by the executors. A person claiming ownership of property included in the will can bring an action against the executors after their appointment or lodge a caveat on the specific properties.
Succession & Estates — Executors — Locus Standi Before Appointment
Persons seeking to be appointed as executors have no locus standi to represent the deceased legally before they are appointed. No right as executor or legatee can be established in any court unless a court of competent jurisdiction has granted probate of the will or letters of administration.

Legislation cited (11)

Cases cited (1)

  • Re the Estate of Petit (deceased) (1958) EA 671

Full judgment

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John Katende and Another v Dan Byamukama (Administration Cause 201 of 1992) [1992] UGHC 99 (3 December 1992)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.