[2024] UGHCFD 86

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

#### (FAMILY DIVISION)

# CIVIL SUIT NO.0084 OF 2021 CONSOLIDATED WITH CIVIL SUIT NO.15 OF 2021

#### C. S NO. 84 OF 2021

ETHEL MAKUMBI::::::::::::::::::::::::::::::::::::

#### **VERSUS**

<table>

NABATANZI MAUREEN:::::::::::::::::::::::::::::::::::

#### C. S NO. 15 OF 2021

1. NABATANZI MAUREEN

- 2. PEARL JOY NAMULEME MAKUMBI - 3. GOLDMAN KATO SSENTAMU - 4. PRIME ROSE BABIRYE NAMAGEMBE (SUING THROUGH A NEXT FRIEND - <table>

NABATANZI MAUREEN):::::::::::::::::::::::::::::::::::

#### **VERSUS**

- **1. ETHEL ESDRAS KAKIBURARA** - 2. BELINDA NANYANZI TEBAGGWA MAKUMBI - 3. MARGARET

KYEGOMBE::::::::::::::::::::::::::::::::::::


## BEFORE: HON. JUSTICE JOHN EUDES KEITIRIMA

#### **JUDGMENT**

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1]. The Plaintiff Ethel Makumbi in H. C. C. S No. 84 of 2021 is a widow of the late Patrick Makumbi to whom she got married on the 2^nd September 1972 at Namirembe cathedral. After their marriage they were blessed with one daughter Belinda Makumbi. The marriage certificate was tendered in court and marked as exhibit P.1.

2]. The said Patrick Makumbi died on 1^st November 2020. The Plaintiff's claim in Civil Suit No. 84 of 2021 against the defendant is for the following:

- A declaration that the defendant and her children illegally lodged a caveat i. on an application for letters of administration vide Administration Cause No. 173 of 2021 and prays for the removal of the said caveat. - A declaration that the defendant has intermeddled in the estate of the late ii. Patrick Makumbi. - That the defendant and her children are not the rightful beneficiaries of iii. the estate of the late Patrick Makumbi. - A permanent injunction restraining the defendant and her agents from iv. intermeddling with the estate of the late Patrick Makumbi, distribution, selling or disposing of the estate and holding out as a widow of the late Patrick Makumbi until the disposal of the main suit. - An order compelling the defendant to render accounts and accountability v. of the estate of the late Patrick Makumbi. - Letters of Administration for the estate of the late Patrick Makumbi be vi. granted to the plaintiff.


General damages and costs of the suit. vii.

3]. The facts constituting the cause of action as stated by the plaintiff in her case vide H. C. C. S No. 84 of 2021 are as follows:

- The plaintiff claims that the late Patrick Makumbi died intestate on the î., 21^st November 2020. The death certificate was tendered in court and marked as exhibit P.2. - That the deceased allegedly left a Will but the said Will is null and void as ii. it was not signed by the deceased and witnesses on the same day and that the Will indicates that it was witnessed before the date of its signature by the deceased. The translated copy of the impugned Will was tendered in court and marked as exhibit P.3. - iii. That in the impugned Will, Margaret Kyegombe was named as the executrix of the Will but that the said executrix who is a resident of the United Kingdom never applied for the grant of Probate to administer the estate of the deceased. - That on the 17^th February 2021 the Plaintiff applied for Letters of iv. Administration vide Administration Cause No. 173 of 2021. - That before the Letters of Administration could be granted, the $V$ . defendant together with her children lodged a caveat protesting the grant of letters of administration for the estate of the late Patrick Makumbi to be given to the plaintiff. - That in the supportive affidavit the defendant falsely alleged that she got vi. married to the late Patrick Makumbi in 2013 vide Ganda customs.

- That the defendant has never married the late Patrick Makumbi and that vii. the said deceased only expressed willingness to marry the defendant in what is commonly known as "kukyala" which does not suffice as a marriage. - That the Plaintiff has never been divorced from the late Patrick Makumbi. viii. - That it has been previously alleged that the late Patrick Makumbi was ix. survived by five children to wit: - a. Raymond Kajiwa Matsiko Makumbi. - b. Belinda Rosemary Nanyanzi. - c. Pearljoy Namuleme Makumbi. - d. Babirye Makumbi. - e. Kato Makumbi

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4]. The Plaintiff stated that upon the directions of Margaret Kyegombe the deceased's doctor at Kampala hospital took blood samples from the deceased which was used to carry out DNA /paternity tests that revealed that Belinda Rosemary Nyanzi was the only biological child of the deceased. The report was tendered in court and marked as exhibit P.7.

5]. That the deceased at the time of his death did not have any dependent relatives and left the following properties:

- Land and premises in Kiwango Mukono on Block 111, Goma Sub –county, Ĭ. Mukono District. - Land at Buikwe-Bulunda, Namukuma Sub County on Block 440 Plots 26, 27 ii. and 28 at Bulunda LC1. - Land and House in Bukoto on Block 120 Plot 119. iii. - iv. Uganda shillings Account in Stanbic Bank Mukono branch.

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- Uganda shillings account in Centenary Bank, Mukono branch. $\mathsf{V}.$ - Uganda shillings account in Centenary Bank, Mukono branch. vi. - Uganda shillings account in Housing Finance Bank, Mukono branch. vii. - Account in Halifax Bank, Stratham High Road, London. viii. - 38 shares in Mukono Diocese Sacco. ix. - Motor vehicle Harrier UBD 272M. $X.$ - xi. 2 Motorcycles.

6]. The Plaintiff further avers and contends that the defendant and her children have no claim whatsoever or interest as the alleged Will of the late Patrick Makumbi is invalid. The plaintiff listed the particulars of the invalidity of the said Will as follows:

- That the said Will was not signed by the deceased and the witnesses on the i. same day. - That the Will indicates that it was witnessed before the date of the ii. signature by the deceased. - The alleged bequeathing of property to some children under the mistaken iii. belief that they were children of the deceased.

7]. The Plaintiff contends that the defendant's actions unless restrained shall cause irreparable loss to the estate of the late Patrick Makumbi and to the rightful

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beneficiaries. The Plaintiff is therefore seeking for remedies as stated in paragraph 2 of this judgment.

8]. In her amended written statement of defence and counter claim the defendant states inter alia:

- That the Plaintiff's petition for letters of administration vide Administration i. Cause No. 173 of 2021 upon which the plaint is premised was improperly brought before this court as the same was not verified in accordance with the law. - That the Plaintiff is trying to mislead court in claiming that the defendant ii. and her children illegally lodged a caveat on her application for letters of administration vide Administration Cause No. 173 of 2021. - The defendant contends that the Plaintiff did not have any right to apply for iii. Letters of Administration as she is not a beneficiary to the estate of the late Patrick Makumbi as she had separated from him in 1995 following the Plaintiff's petition for divorce and the two never reconciled again. - That at the time of the death of Patrick Makumbi, the plaintiff had iv. separated with him for twenty-five years without any reunion. - That she and her children are the rightful beneficiaries to the estate to the V. estate of the late Patrick Makumbi. - That the late Patrick Makumbi was customarily married to the defendant vi. and together they begot children. - vii. That the defendant and the late Patrick Makumbi started cohabiting in 2009 and in 2013 the late Patrick Makumbi accompanied with some relatives visited the defendant's parent's home to officiate their relationship.

9]. The defendant contends that she has never intermeddled with the estate of the late Patrick Makumbi bur rather it is the Plaintiff and her daughter Belinda Nanyanzi Tebaggwa Makumbi with the support of Margaret Kyegombe who have on various occasions intermeddled with the said estate as a result of which the defendant and her said children were compelled to institute Civil Suit No. 15 of **2021** for intermeddling with the estate among other things.

10]. That the late Patrick Makumbi left a Will wherein he bequeathed several properties to the defendant and her children and that the said Will has never been challenged and or declared null and void by any court in Uganda or anywhere else.

11]. That the Plaintiff had no right to apply and be granted Letters of Administration and that the defendant and her children are the rightful beneficiaries to the estate and have every right in law and equity to caveat the process thereof.

12]. The defendant contends that in the divorce proceedings between the Plaintiff and the late Patrick Makumbi they reached a settlement agreement wherein the late Patrick Makumbi compensated the plaintiff with forty million shillings for the plaintiff to relinquish her interest in the property comprised in Bukoto Block 120 Plot 119.

13]. That the Plaintiff did not claim any interest in the aforementioned property at Bukoto or any other property belonging to Patrick Makumbi from the time of compensation in 1995 until recently when she learnt of the late Patrick Makumbi's demise that she came out to purport to have an interest in the estate.

14]. The Plaintiff further stated that for the entire time she was with the late Patrick Makumbi, the plaintiff was aware of their union with the late Patrick Makumbi but never came out to challenge them in anyway and hence the plaintiff is now a self-seeker, greedy, selfish and an inward looking individual who seeks to unjustly benefit and or enrich herself after the demise of the late Patrick Makumbi.

15]. The defendant contended that the children she begot with the late Patrick Makumbi are his biological children and that he loved and cherished them and that the purported DNA test that was orchestrated, engineered and conducted by

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the plaintiff and her daughter Belinda and Margaret Kyegombe was inadmissible, unreliable and biased as the same was done in circumstances that were questionable and unacceptable.

16]. The defendant contends that she never willfully consented to the plaintiff, her daughter and the said Margaret Kyegombe or any of their agents to extract blood samples from her children who are minors. That a day after the burial of the late Patrick Makumbi, the plaintiff's daughter Belinda Makumbi and some other unknown persons invaded the defendant's home in Mukono and forcefully collected the blood samples from the minors.

17]. The defendant contended that the DNA test report is irregular as the same indicates that the blood sample of the deceased was collected on 26^th November 2020 a day after the late Patrick Makumbi had been buried which was on the 25^th November 2020.

18]. The defendant further contended that the late Patrick Makumbi's Will is valid and was well executed and hence the Plaintiff's allegations of invalidity are fictitious. The defendant further contends that the plaintiff's allegations are fictitious and hence the plaintiff is not entitled to the prayers she is seeking for and hence her claim should be dismissed with costs.

19]. The defendant raised a counter claim where she states inter alia:

- That she is the wife of Patrick Makumbi and a beneficiary to his estate. i. - That she is the biological mother and next friend of Pearl Namuleme ii. Makumbi, Goldman Kato Ssentamu and Primrose Babirye Namagembe, the children of Patrick Makumbi and beneficiaries to his estate. - That the counter claimant being the wife of the late Patrick Makumbi, iii. mother and next of friend of the minors, she is the rightful person to be granted letters of administration to administer the estate of the late Patrick Makumbi on behalf of and in the interests of the minors /beneficiaries in the event of the Will or the codicils are declared invalid by this court.

20. The counter claimant further contends that the counter defendant having separated from the late Patrick Makumbi in 1995 without ever reuniting, disqualifies her as a beneficiary of his estate and thus cannot apply and is not entitled to the letters of administration for the said estate.

21]. The counter claimant further contended that upon the demise of Patrick Makumbi, the counter defendant in corroboration with her daughter Belinda Makumbi and Margaret Kyegombe took over the administration of the estate without obtaining any grant to administer the same.

**22].** The counter claimant is praying for judgment in the following terms:

- A declaration that the late Patrick Makumbi left a Will and died testate. Ĭ. - A declaration that the counter claimant and her children are beneficiaries ii. to the estate of Patrick Makumbi. - A declaration that the counter defendant is not entitled to letters of Ш. administration to the estate of the late Patrick Makumbi. - In the alternative in the event that the Will is declared invalid, an order iv. appointing the counter claimant as the administrator of the late Patrick Makumbi's estate on behalf of and in the interests of the minors. - An order directing the counter defendant to provide an inventory of the v. late Makumbi's estate. - General damages and costs of the suit. vi.

The issues in Civil Suit No. 15 of 2021 where all considered in Civil Suit No. 84 of 2021 when the defendant in the latter case raised a counter claim. For purposes of resolving this case we shall classify the parties as either plaintiff or defendant as reflected in Civil 84 of 2021 involving the parties herein.

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23]. In their joint scheduling memorandum, the following issues were raised for determination:

- Whether the defendant/counter claimant was legally married to the late i. Patrick Makumbi and if not if she is entitled to any share in the estate of the Late Patrick Makumbi. - Whether the Plaintiff /Counter defendant can be granted Letters of ii. Administration to administer the estate of the late Patrick Makumbi. - iii. Who are the rightful beneficiaries of the estate of the late Patrick Makumbi? - Whether the estate of the late Patrick Makumbi has been intermeddled iv. with and if so by whom? - Whether the Will of the late Patrick Makumbi is valid and/or legally v. enforceable. - Remedies available to the parties. vi.

**24].** The parties and their witnesses proceeded by way of witness statements from which they were cross examined. The details of their evidence is on record. The parties then filed written submissions which I have considered in determining this case.

Issue One: Whether the defendant /counter claimant was legally married to the late Patrick Makumbi, and if not whether she is entitled to any share in the estate of the late Patrick Makumbi.

25]. Marriage is defined in Black's Law Dictionary as a "Legal union of a couple as spouses. The essentials of a valid marriage are:

- Parties legally capable of contracting to marry; *I.* - $\mathcal{U}$ *Mutual consent or agreement;* - An actual contracting of the marriage in the form prescribed by law. $III.$

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26]. It was the defendant/counter claimant's evidence that the late Patrick Makumbi went to her home and was introduced by her in what is locally known as "Kukyala". The defendant/counterclaimant stated that she began a romantic relationship with the late Patrick Makumbi in the year 2009 and eventually got "married" to him in 2015 according to the Kiganda traditions and customs.

27]. There is undisputed evidence on record that the late Patrick Makumbi got legally married to the Plaintiff on 2^nd September 1972 at St. Paul Cathedral Namirembe. The marriage certificate was tendered in court and marked as exhibit $P.1.$

28]. Sometime in 1995 the Plaintiff developed some disagreements with her late husband which caused them to separate until his death. Much as the plaintiff filed for divorce, the divorce proceedings were never concluded and therefore at the time of his death, the late Patrick Makumbi was still married to the plaintiff although they were not staying together for quite some time.

29]. Section 36 of the Marriage Act (as it applied then) provided that "Any person who is married under this Act, or whose marriage is declared by this Act to be valid, shall be incapable during the continuance of that marriage, of contracting a valid marriage under any customary law, but except as aforesaid, nothing in this Act shall affect the validity of any marriage contracted under or in accordance with any customary law, or in any manner applied to marriages so contracted".

30]. The purported customary marriage between the late Patrick Makumbi and the defendant (Nabatanzi Maureen) that was subsequent after the church marriage between the late Patrick Makumbi and the plaintiff was void and hence the defendant was not legally married to the late Patrick Makumbi. They were just cohabiting.

# Issue 2: Whether the late Patrick Makumbi left a valid Will

31]. Section 50 of the Succession Act Cap 162 (as it applied then) provided as follows, "Except as provided by this Act or other law for the time being in force, every testator not being a member of the armed forces employed in an expedition or engaged in actual warfare, or a mariner at sea, must execute his or her will according to the following provisions-

(a) the testator shall sign or affix his or her mark to the will, or it shall be signed by some other person in his or her presence and by his or her direction;

(b) the signature or mark of the testator or the signature of the person signing for him or her shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will;

(c) the will shall be attested by two or more witnesses, each of whom must have seen the testator sign or affix his or her mark to the will, or have seen some other person sign the will in the presence and by the direction of the testator, or have received from the testator a personal acknowledgement of his or her signature or mark, or of the signature of that other person; and each of the witnesses must sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."

32]. Counsel for the plaintiff submitted that the purported witnesses to the will Godfrey Masagazi (DW3), Paul Mugambe (DW2) and Mubiru Fred (DW4) gave contradicting evidence with regard to the will. Counsel for the plaintiff submitted that DW3 during cross-examination stated that he had seen the deceased sign the will and after he himself had signed it and that both events happened on the same day.

33]. Counsel for the plaintiff contended that DW3 signed the will on the 25^th September 2016 while the late Makumbi signed it on 11^th November 2016. That this significant gap of close to three months between the dates raises doubts as to the credibility of DW3's testimony. That DW3 also admitted during cross examination that he could not read or write and hence this raised the question about how he could have signed a will as a witness.

34]. That DW2 also stated that he signed the will on the 25^th September 2016 and that he admitted that the late Patrick Makumbi signed the will on 11^th November 2016 which leaves a gap of three months. That DW2 confirmed that he could not read nor write. That during cross examination he stated that he did not see the testator sign the alleged will and as the deceased's personal assistant he could not identify the deceased's handwriting. That this cast a doubt on whether the deceased actually made or signed the will.

35]. Counsel for the plaintiff also submitted that DW4 testified that they signed on different occasions with him signing on the 25^th September 2016 and the deceased signing on a different date. That he also admitted that he was asked to sign and not told what he was signing for. He contended that according to the Law dictionary, an attesting witness is someone who signs a document at the maker's request and certifies its identity and existence.

36]. Counsel for the plaintiff submitted that basing on the evidence of the said witnesses, the will that was tendered in court did not conform to the provisions of Section 50 of the Succession Act Cap 162 (as it applied then)and lacks merit on the ground of lack of proper execution and hence the will should be declared invalid.

37]. The rationale of Section 50 of the Succession Act (as it then applied) was to ensure that the will presented is valid and eliminate a possibility of forgery or fraud. The section is designed to obviate the possibility of fraud.

Section 50 of the Succession Act Cap 162 (as it applied then) provided as follows:

"Except as provided by this Act or other law for the time being in force, every testator not being a member of the armed forces employed in an expedition or engaged in actual warfare, or a mariner at sea, must execute his or her will according to the following provisions-

- (a) the testator shall sign or affix his or her mark to the will, or it shall be signed by some other person in his or her presence and by his or her direction; - (b) the signature or mark of the testator or the signature of the person signing for him or her shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will; - (c) the will shall be attested by two or more witnesses, each of whom must have seen the testator sign or affix his or her mark to the will, or have seen some other person sign the will in the presence and by the direction of the testator, or have received from the testator a personal acknowledgement of his or her signature or mark, or of the signature of that other person; and each of the witnesses must sign the will in the presence of the testator, but it shall not be necessary that more than one

#### witness be present at the same time, and no particular form of attestation shall be necessary."

38]. In her plaint vide Civil Suit No. 84 of 2021 the Plaintiff (Ethel Makumbi) stated that the purported will left by the said deceased was null and void as it was not signed by the deceased and the witnesses on the same day and that the will indicated that it was witnessed before the date of its signature by the deceased. In the Plaintiffs submissions, the plaintiff contended that DW2, DW3, and DW4 admitted during cross examination that they never witnessed any signing of the will by the deceased and that the will presented before this court did not conform to the provisions of Section 50 of the Succession Act and lacks merit on ground of lack of proper execution and that the same should be declared invalid.

39]. In cross examination, Paul Mugambe, DW2, who stated that he was a personal assistant to the said deceased, stated that he saw the deceased's Will and signed on it. This was after the said deceased requested him to sign the will. He stated that he never saw the said deceased sign on the Will. Godfrey Masagazi, DW3, stated that he knew the deceased for 18 years and that he had witnessed on his will. That this was after the said deceased requested to sign his will which he accepted to do. He stated on cross examination that he never saw the deceased sign on the will. That he knew the deceased's handwriting as well as his signature and that he could confirm it was his will.

40]. DW4 Mubiru Fredrick also stated that he worked with the said deceased for about 22 years. He stated that he never saw the deceased sign on his will but saw him write on it. He stated that he was with the deceased when he signed on his will as a result of the deceased requesting him to sign the will.

41]. What is clear from the evidence of the said witnesses is that they were all called by the deceased and he requested them to sign on his will. They therefore appended their signatures on the will the deceased claimed was his. They however did not see the deceased sign the will. It is also apparent that the testator and the witnesses never signed the Will on the same day. It is basing on the said anomalies that the plaintiff contends that the Will should be invalidated.

42]. I agree with the submission by counsel for the defendant that the rationale for the strict application of the provisions of Section 50(1) of the Succession Act Cap 162(as it applied then) was to eliminate any possibility of a forgery or fraud

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and to ensure that what is being presented as the Will of the deceased testator indeed represents the wishes and desires of the deceased or how he or she intended to dispose of his or her property upon demise. If the circumstances are clear that the deceased is the one who wrote the will and there was no forgery or fraud, the reasons for strict applications of the condition are diminished.

43]. It was held in the case of In the Estate of Mann -[1936-1942] 2 All ER 146 that "the rule as to attachment physically or other wise of the documents, is clearly designed to obviate the possibility of fraud ... where the circumstances are so plain and so well ascertained as to preclude all possibility of fraud, the reasons supporting the strict application of the rule are greatly diminished. I do not say that they altogether disappear, for there is always a safeguard against possibilities of fraud in the preservation of an unvarying rule..."

44]. Indeed, the law under Section 50 (c) of the Succession Act Cap 162 (as it applied then) provided that each of the witnesses must sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. It is therefore inconceivable how all witnesses can see the testator sign the will if the law provides that they need not all be present at the time the testator is signing the will.

In this particular case, the testator wrote the impugned Will in his own handwriting and there is no evidence to the effect that the said handwriting was forged

45]. It is therefore by implication not mandatory that witnesses to the will have to sign it on the day the testator signed it and nor do they have to read the will before they can attest to it. No evidence has been adduced that the will was never authored by the said deceased nor was his handwriting challenged. Indeed, in paragraph 18 of her witness statement, the plaintiff acknowledges that her sister in law Margaret Kyegombe was the executor of her late husband's will. The plaintiff can't therefore be seen to deny her own evidence which corroborates what the defendants stated.

I therefore find that the late Patrick Makumbi left a valid Will.

### **ISSUE 3: Whether the Plaintiff (Ethel Makumbi) can be granted Letters of** Administration.

46]. Having resolved that the late Patrick Makumbi left a valid will in which he named an executor, there is no way the plaintiff can administer his estate.

The above notwithstanding, the Plaintiff acknowledges that at the time of the deceased's death, she had separated with the deceased and at some point even filed divorce proceedings. They had lived separately for twenty-five years a fact that is acknowledged by the plaintiff. Even if the said deceased had died intestate, the plaintiff could not have been eligible to administer the deceased's estate.

47]. Section 30 of the Succession Act Cap 162 (as it applied then) provided that " No wife or husband for an intestate shall take any interest in the estate of an intestate if ,at the death of the intestate , he or she was separated from the $% \left( \mathcal{L}\right)$ intestate as a member of the same household."

The said provisions of the law could at the time not be applied in the following circumstances:

(2) This Section shall not apply where such wife or husband has been absent on an approved course of study in an educational institution.

(3) Notwithstanding subsection (1), a court may, on application by or on behalf of such husband or wife, whether during the life or within six months after the death of the other party to the marriage, declare that subsection (1) shall not apply to the applicant."

48]. It was held in the case of *Elizabeth Nalumansi versus Jolly Kasande and* others -S. C. C. A No. 010 of 2015 by Hon. Justice Dr. Lillian Tibatemwa that "My understanding of Section 30 is that it deals with cases where although the legal relationship between an intestate deceased and his/her partner was that of wife and husband at the time of death, the parties were not living as members of the same household. I also opine that the section deals with separation as a factual issue and does not limit its application to legal separation resulting from a court order i.e judicial separation. Had the enactors of the law intended to limit the section to parties living separately as a result of a court order, they would have specifically said so.

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I must also state that my interpretation of Section 30 is that subsection 1 creates a general rule that a spouse who is prima facie separated from the other as a member of the same household is not entitled to any interest in the estate in case the other spouse dies intestate... consequently by virtue of the provisions of Section 30 of the Succession Act, I am in agreement with the Court of Appeal decision that the appellant cannot take any interest in the estate of her deceased husband. Having made a finding that the appellant cannot take interest in the estate of the deceased, I hold that she cannot be granted Letters of Administration."

Therefore, even if the applicant had died intestate, the plaintiff could not have qualified to apply for letters of administration as she never fell in the ambit of the said exceptions.

### Issue four: Who are the rightful beneficiaries to the estate of the late Patrick Makumbi.

49]. The Black's Law Dictionary Ninth Edition defines a beneficiary as "A person for whose benefit property is held in trust especially one designated to benefit from an appointment, disposition, or assignment (as in a will, insurance policy etc) or to receive something as a result of a legal arrangement or instrument.

The rightful beneficiaries of the late Patrick Makumbi are therefore those mentioned in his will.

50]. It is therefore even irrelevant to determine the paternity of the impugned children. Since they were mentioned in the deceased's will as beneficiaries the outcome of any DNA results would be irrelevant to the determination of this case. A testator is at liberty to determine the beneficiaries to his or her estate even if he or she is not related to them. I should hasten to add that the plaintiff had no locus standi to challenge the paternity of the impugned children since she is not even a beneficiary to the estate.

Issue five: Whether the estate of the late Patrick Makumbi has been intermeddled with by the defendants in Civil Suit No. 15 of 2021 (Ethel Makumbi, Belinda Nanyanzi Makumbi and Margaret Kyegombe)

51]. The Black's Law Dictionary, ninth edition defines an intermeddler as "a person who confers a benefit to another without being requested or having a

legal duty to do so, and who therefore has no legal grounds to demand restitution for the benefit conferred".

52]. Section 268 of the Succession Act Cap 162 (as it applied then) provided that "A person who intermeddles with the estate of the deceased or does any other act which belongs to the office of executor, while there is no rightful executor or administrator in existence, thereby makes himself or herself an executor of his or her own wrong, except that-

(a) intermeddling with the goods of the deceased for the purpose of preserving them, or providing for his or her funeral, or for the immediate necessities of his or her own family or property; or

(b) dealing in the ordinary course of business with goods of the deceased received from another,

# does not make an executor of his or her wrong.

52]. The evidence on record shows that PW2 and the proposed executor of the will according to the plaintiff's evidence, evicted non paying tenants at Bukoto Plots 119 and 120 and replaced them with paying tenants. Evidence was adduced that the said properties are well maintained and have not been disposed of. I find that the actions of PW2 and the proposed executor were meant to preserve and protect the estate of the deceased though at one point they will be expected to account to the appointed administrator of the estate.

### **Issue Six: Remedies available to the parties.**

53]. Civil suit No. 84 of 2021 will be dismissed with the following orders:

- 1. Letters of Administration (with a will annexed) of the estate of the late Patrick Makumbi will be granted to the Administrator General to distribute the said estate according to the will since the appointed executor has never showed interest to apply for probate. - 2. This resolves the issues that were raised in Civil Suit No. 15 of 2021 which was consolidated with Civil Suit No. 84 of 2021.

3. This being a family related matter, I will give no order as to costs to promote reconciliation between the parties.

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Hon. Justice John Eudes Keitirima

22/10/2024.