Who is a wife? A wife is one validly married to the deceased.
In Christine Male & anor v Namanda and Anor the deceased died intestate leaving behind
12
children from 4 women, the first plaintiff had 3 children the defendant had 4 children. The
defendant and her mother-in-law argued that the plaintiff having only three children would not
adequately care for other children and the defendant was a guarantor of the deceased’s loan,
Held
The court held that the first plaintiff as a person who was legally and validly married, she was
the only one who would apply for letters of administration. The defendant had never been
validly married to the deceased. The mere fact that somebody had children with a woman does
not entitle her to have a share in the estate of the deceased.
Mugisha v kakuru..it was a customary marriage which had not been registered. Justice Mpagi
Bahigeine held against the widow arguing that the marriage had not been registered and
therefore incapable of proof itself. This is bad law because under the Customary Marriage
Registration Act failure to register does not invalidate the marriage but under S.10 a certificate
of marriage is conclusive evidence of that marriage in all matters.
In Best Kemigisha v Mabel Komuntale
In this case Kemigisha challenged a caveat lodged by the defendant against the property of her
deceased husband. The defendants claimed that under Toro custom, the queen could not
administer property of the kingdom. However, evidence showed that some of the property was
written in the names of her husband the king and was not property of the kingdom.
Held; that the custom that a married woman cannot inherit the property of her deceased
husband was held to be repugnant to justice.
Justice katutsi said “A widow is the most suitable person to obtain representation to her
deceased husband‟s estate. In the normal course of events, she is the person who would
rightfully, properly and honestly safeguard the assets of the estate for herself and her children.
It would be going back to a mediaeval conception to cling to a tribal custom by refusing her a
grant which is obviously unsuited to the progressive society of Uganda in this year of grace. A
legal system ought to be able to march with the changing conditions fitting itself into the
aspirations of the people which it is supposed to safeguard and serve.
Omella and anor v Etieng, two co-wives applied for letters of administration jointly. This was
challenged by the brother and father of the deceased because these women could not apply
without the permission of clan members. Court held that it was not contrary to morality, equity
and justice for widows to apply for letters of administration. Court however appointed an elder
as a co-administrator to ensure that also other children were taken care of.
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Farasia Rwabaganda V Donato Bahemurwabusha
The deceased had in 1964 got married to the defendant in church but they separated in 1965.
Though they were not legally divorced, the defendant never returned to the matrimonial home
till the death of the deceased. The deceased made a will in 1966 and in 1970 married the
plaintiff customarily (under the Kikiga custom).
HELD;
That the deceased was validly married to Farazia under customary marriage. This marriage
would have been invalid since the first marriage was still subsisting, however, such marriage
having been contracted before October 1973, it was validated by S.11(1) of the Customary
Marriages (Registration Decree) which came into force on October 1, 1973 and was to the
effect that ‘where a person was married under the marriage Act but subsequently contracted a
customary marriage in the subsistence of the prior marriage before the coming into force of the
decree, the subsequent marriage was valid’.
Therefore, since a will is revoked by the marriage of the maker, the will of 1966 stood revoked
when the deceased married the plaintiff in 1970 and being no subsequent will, the deceased
would be regarded as having died intestate.
The defendant having been separated from the deceased till his death could not take any interest
in the estate as provided for in S. 30(1). The plaintiff being an industrious woman who kept the
deceased’s business going to the extent of completing one of the buildings left unfinished by
the deceased, it was fit and proper to be granted the letters of administration of the deceased’s
estate
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