A will was defined in the case of Lemage v Goodban (1865) 1 P & D 571 P & D 57 as ‘the
aggregate of a man’s testamentary intentions, so far as they are manifested in writing, duly
executed according to statute.’ The making of wills is governed by the provisions of Section
29 (1) of the Succession Act Cap 268.
Significance of the case: The validity of the will
Name of the court: High Court of Uganda at Jinja.
Judge: Hon Lady Justice Irene Mulyagonja Kakooza.
Case no. Cause No 0039 of 2008
Parties: Johan John Kyeswa vs Administrator General
Material Facts:
The Appellant brought in application on 17/08/2009 which was supported by an affidavit
stating that he was the only surviving nephew of the deceased who was his uncle, the brother
to his father. Further that under a will of the late Yokana Kyeswa, he was appointed the heir
to his estate, a copy of a will was attached, and the applicant’s advocates later supplied a
translation in English to court. He on 8/08/2008 filed an application for grant of CONO with
the office of the Administrator General. The Administrator General’s office established that
he was the only surviving descendant of the deceased. The applicant averred that inspite of all
this, the Administrator general declined to grant him with the certificate to indicate that he did
not object to his application for letters of administration. His lawyers even served a notice on
the Administrator General to grant the certificate to the applicant within 14 days but he still
declined to do so. He thus prayed that this court grant him letters of administration without
requiring him to produce a certificate of no objection.
Counsel for the Applicant:
Counsel appeared and prayed to proceed ex parte, which he was granted. He submitted
repeating the contents that the notice was served on the Administrator General under Section
5 of the Administrator General’s Act and prayed that this court is empowered to grant letters
of administration to the applicant without the certificates of no objection.
He also stated that the Administrator General’s failure to respond to the notice given the
applicant’s advocates showed that he was inconsiderate to the applicant.
He later submitted that the deceased’s will had named the applicant as the heir of the
deceased that he had the locus to bring this application and there was no just cause to deny
him the office of administrator of his uncle’s estate. He thus prayed that letters of
administration be granted to him.
Holding:
I perused the file. It showed that the applicant first applied for a grant of letters of
administration by a petition that was filed in this court on the 27/03/2008. On 28/04/2008,
his Advocates wrote to the Assistant Registrar to inform him that a will of the deceased had
been found and the applicant wanted to amend his application and instead apply for probate
to that will. However, perusal of the will revealed that it did not name an executor. The
Registrar thus advised the applicant’s advocates to pursue a certificate of no objection to the
application and pursue the grant for letters of administration. I also perused the translation
of the will that was supplied to court in this application. Though the applicant stated that he
was the son of the deceased in his petition for the grant, it turns out from the will and this
application that the applicant is really not the son of the deceased but a nephew, being the
son of his brother Sebudde.
It would be imprudent of this court to grant letters of administration to the applicant herein
in light to discrepancies that I have pointed out above without a certificate of no objection
from the Administrator General and without any information about the other beneficiaries
to the estate.
The will itself presents a problem. Though the applicant stated in his application that his
application was for a grant of letters of administration in respect of the estate of one Yokana
Kyeswa, the testator of the will was without a doubt a person called Yokana Kamyuka
Mugalu.
Court Decision; the application was dismissed.
