Wakilii

Zadjiya Hassan v Hadija Noor and Mrs. Nsungwa Constance (Civil suit No. 1 of 1992)

High Court · [1994] UGHC 115 · 1994 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application under section 265 of the Succession Act for removal of caveats lodged against grant of probate
Decision
Application dismissed; Administrator General appointed to administer the estate

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held: the will did not comply with section 50 of the Succession Act because it was not properly attested by two witnesses in the testator's presence. The deceased died intestate. The application for probate was incompetent as the plaintiff applied singly, excluding four co-executors named in the will. Both defendants remained lawful wives of the deceased under Islamic law at his death. The plaintiff was not a fit person to administer the estate, having shown no care for all beneficiaries. The Administrator General was appointed to administer the estate.

Outcome

Application dismissed; Administrator General appointed to administer the estate

Facts

The plaintiff, Zadjiya Hassan, brought an action under section 265 of the Succession Act to remove caveats lodged by the defendants against the grant of probate to the estate of the late Noor Hussein Gamukama, who died on 21 June 1991. The plaintiff claimed she was a lawful wife religiously wedded to the deceased on 5 October 1978 and was named executor in his will. The first defendant, Hadija Noor, averred she was officially wedded to the deceased in August 1983 under Mohammedan law and challenged the will's validity, alleging undue influence and improper attestation. The second defendant, Constance Nsungwa, married the deceased on 26 May 1971 according to Islamic law and had seven children. She also contested the will's validity, alleging it did not make reasonable provision for dependants and that the deceased lacked mental capacity. The deceased left a will naming five executors, but the plaintiff applied for probate alone. Evidence showed the will was signed by only one witness in the testator's presence.

Issues

  1. Whether the application for probate is competent.
  2. Whether the will dated 23rd April 1991 is valid.
  3. Whether the first and second defendants were wives of the deceased at the time of his death.
  4. Whether the plaintiff is capable of administering the estate.
  5. In the case there is any short coming, who should administer the estate.

Orders

  • Application for probate dismissed with costs.
  • The Administrator General is appointed to administer the estate of the late Noor Hussein Gamukama.
  • The powers of the interim caretaker cease upon the Administrator General taking over administration.
  • The interim caretaker must make an inventory and pass the same to the Administrator General.
  • Copy of judgment to be sent to the Administrator General for necessary action.

Rules and key headnotes

Wills — Execution — Attestation by Two Witnesses — Section 50 Succession Act
For a will to be valid under section 50(1) of the Succession Act, it must be attested by two witnesses each of whom must have seen the testator sign or affix his mark or have received personal acknowledgement of his signature, and each witness must sign in the presence of the testator, though not necessarily at the same time as each other.
Wills — Acknowledgement of Signature — Requirements
Where a testator acknowledges his signature on a will, the acknowledgement must be made in the actual presence of both attesting witnesses, and the witnesses must have the opportunity of seeing the testator's signature at the time of attestation.
Probate — Application by Joint Executors — Competency
Where a will appoints several persons as executors to work jointly, an application for probate by one executor alone without evidence that the others have renounced, refused to prove, or died, is incompetent and will not be granted.
Marriage — Islamic Law — Divorce by Talak — Effect
Under Islamic law, a marriage may be dissolved by pronouncement of 'talak' by the husband, but if three months expire after the talak without sexual intercourse between the parties, the dissolution becomes effective; if they reconcile and resume sexual relations within that period, the talak ceases to have effect.
Administration of Estates — Appointment of Administrator General
Under section 251A(b) of the Succession Amendment Decree 22 of 1972, the court may grant letters of administration to the Administrator General where the estate is complex, beneficiaries are divided, and a proposed administrator is not a fit and proper person.

Legislation cited (9)

Cases cited (6)

  • In the Estate of Pardoe [1951] 2 All ER 20
  • In Re Chalcraft [1943] Ch 222
  • In the Estate of Keigwin [1945] Ch 7
  • Brown v Skirrow [1902] Probate 130
  • Blake v Blake [1988] 2 All ER
  • In the Estate of Holland [1933] JLR LT 417

Full judgment

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Zadjiya Hassan v Hadija Noor and Mrs. Nsungwa Constance (Civil suit No. 1 of 1992) [1994] UGHC 115 (25 July 1994)
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.