THE UNITED REPUBLIC OF TANZANIA

LS 109:
PROBATE AND
ADMINISTRATION OF
ESTATES
Tuesday, November 19, 20
24
(c) 2020 Mr. Justice R.V. Makaramba 1
 * PROBATE AND
ADMINISTRATION OF
ESTATES: LAW,
PRACTICE & PROCEDURE

By
Robert Vincent
Makaramba,
Judge (Retired)
 CONTENT

Part I Part II Part III

• Introduction • Practice and • The
• Probate and Procedure in Concept
Administrati Courts of
on of • Powers and Islamic
Estates: Duties of Waqf
Introduction Legal • General
& Basic Representati Conclusi
Concepts ves on
• Closing • Referenc
probate e
 CONTENT
Part I: Probate and
Administration of Estates

 Introduction
 Basic Concepts
 Before You File and
Probate Case Preparation
 Commencing Probate
 CONTENT
Part II: Practice and Procedure in
Courts
 Applicable Laws and Courts’
Jurisdiction
 Primary Courts
 District Court
 “District Delegate”
 High Court

 Procedure in Contentious Matters

 Determining Validity of a Will
Part III: The Islamic Concept of Waqf

 Introduction and Overview

 What is Waqf?
 The Historical Evolution of the Islamic
Waqf
 The Four Pillars of a Waqf
 Essentials of a Valid Waqf
 Main Elements of a Waqf
 Categories, Kinds and Types of Waqfs
 The Administration of Waqf Property on
Tanzania
 The Office Of Mutawalli
 Conclusion
 General Conclusion
 Adoption of Uniform Law
of succession
 Reform of the Law of
Marriage
 Repeal and/or Amend
Discriminatory Customary
Laws
 Reference Materials
 Areas of focus
Concepts, Applicable
Laws and Succession
Regimes
Courts in Probate and
Administration Cases

The Concept of Waqf in

Islamic Law
The Seven Lamps of  Honesty
 Courage
 Industry
 Wit
 Eloquence
Advocacy

 Judgment
 Fellowship
 (7+1) Tact
 *
Part I:
Introduction: Concepts,
Applicable Laws &
Succession Regimes
 INTRODUCTION AND BACKGROUND
INFORMATION

What is new in legal practice?

i) Advocates and Public

Prosecutors now may practice
in Primary Courts.

 See The Written Laws

(Miscellaneous
(4) “…an advocate or public
prosecutor may appear or
act for any party in a
primary court presided over
by a resident magistrate.”
(5) “…procedures applied in
the proceedings in a
primary court shall apply in
cases where an advocate or
public prosecutor appears or
(ii) Kiswahili is the
language of all laws and of
all courts in Tanzania
Mainland.

See The Written Laws

(Miscellaneous Amendments)
Act, 2021, Act No. 1 of 2021
Assented on 15th April 2021:
PART II AMENDMENT OF THE
(iii) All matrimonial and probate and
administration causes in Dar es Salaam
Region now have to be filed at the Temeke
OSJIC.

 See The Magistrates’ Courts (Variation

of the Designation of the District Court
for Matrimonial Matters and Probate and
Administration Causes) Order, 2021,
G.N. No. 641 published on 27/8/2021.
 See The Judicature and Application of
Laws (One-Stop Judicial Centre of
Temeke) (Establishment) Order, 2021,
iv) Proceedings in Primary Court which
may require assessor

 See The Written Laws (Miscellaneous

Amendments) (No. 3) Act, 2021, Act
No.5 of 2021, amended the
MAGISTRATES’ COURTS ACT, (CAP. 11),
by repealing sections 7, 8 and 9 thereof
and replacing section 7 in so far as
“Proceedings which may require
assessor” - proceedings in the primary
court which involves customary or
Islamic law, where the court considers
 See The Magistrates’ Courts
(Appearance of Advocates and Public
Prosecutors in Primary Courts) Rules,
2022 (not yet gazetted).

 The law governing practice and

procedure in primary Courts.

 Written Notice and commitment by

private advocate as per form A and
by Public prosecutor as per Form B in
the Schedule to the Rules.
v) Surviving spouse or child given
priority to collect death
certificate.

 The Written Laws

(Miscellaneous Amendments)
(No. 3) Act, 2021, Act No.5 of
2021 Assented on 28th
September, 202: PART III
AMENDMENT OF THE BIRTHS
AND DEATHS REGISTRATION
vi) Matrimonial property part
of inheritance.
 See THEOFRIDA MHAGAMA vs.
NJENGAFIBILI MPONJOLI
MWAIKUGILE, As the legal
representative of Jackson
Reuben Mwaikinda, CIVIL
APPEAL NO. 160 OF 2020 (CAT)
(Coram: MUGASHA. J.A..
KWARIKO, J.A.. And KENTE, J.A.
(Judgment dated 5 November
vii) Pension money is part of
inheritance.
CLASS ACTIVITY
 Search for the decision in the High
Court.
 Write a Case Note pointing out:

I. Facts:
II. Issues:
III. Law:
IV. Arguments:
V. Reasons for the decision:
CLASS ACTIVITY
viii) Non-citizen heirs could own land by
way of inheritance.

 Emmanuel Marangakis as Attorney of

Anastasios Anagnostou vs The
Administrator General, Civil Case No. 1
of 2011 (HCT)(DSM)(unreported) (Dr
Fauz Twaib, J. as he then was)

 The Court interpreted that what was

prohibited by the Land Act was direct
grant or allocation of land to non-
citizens and not ownership by way of
 On 14 November 2019, the Written
Laws (Miscellaneous Amendments)
Bill 2019, Act No 8 of 2019 (the Bill)
proposed to amend several laws
including the Probate and
Administration of Estates Act, Cap.
352 (the Act).

 The amendment to the Act initially

proposed to impose a restriction on
Administrators and Executors in
distributing the estate of the
 As per the Bill, non-
citizen heirs would only
be allowed to benefit
from the proceeds
realized from the
disposition of the said
landed property after the
Administrator or Executor
disposes off the property.
 After the Bill went through
parliamentary debate, the Government
shelved amending the Act meaning that
heirs who are non-citizens can continue
to inherit property, not necessitating for
administrators or executors to dispose
of the property for distribution of the
proceeds.

 The Written Laws (Miscellaneous

Amendments) Act, 2020, which came
into force on 21 February 2020, now
contains no amendment disallowing
 The laws of Tanzania through the
provisions of section 20 of the
Land Act Cap. 113 R.E. 2002
prohibits foreigners to acquire land
unless it is for investment
purposes under the Tanzania
Investment Act (TIA).

 TIA makes it clear that a non-

citizen can only acquire land if it is
for investment purposes and that
investment must be under the
ix) Under Tanzanian law, money
or property inherited by a
beneficiary of a deceased’s estate
is tax exempt.

 International tax law

distinguishes between estate
tax and inheritance tax—
the former is assessed on the
assets of the deceased,
while the latter is assessed on
 See THE INCOME TAX
ACT, CAP 332 R.E.
2008

 https://www.tra.go.tz/t
ax%20laws/Income%2
0Tax%20Act%20Revise
d%20Edition%202008.
"The earth belongs in usufruct to
the living; the dead have neither
powers nor rights over it." "If one
generation could bind another,
the dead and not the living would
rule.”
Thomas Jefferson

3rd U.S. President

 The rationale for
probate law and
administration of
estate of deceased’s
property:
“the dead continue
to dictate for us
 The law of succession
tasks courts of law with
the inherently difficult
problem of trying to
figure out the wishes of
the dead as to how
they wished their
property to be dealt
 BASIC CONCEPTS
 When people die owning
property, the property must be
distributed according to a
preordained scheme.

 One method is to distribute the

property according to the
wishes of the deceased as
expressed in his or her will.
This method of distribution is
 However, there will be
cases where the
deceased has not
executed a will, or
has failed to execute
a will that disposes
of some or all of his
or her property
 The property that has not
been dealt with effectively
by will is usually
distributed according to a
regime established by
statute or customary or
religious rules.

 This method of distribution is

 Issues of inheritance and
succession arise when a
person dies with regard to
the distribution of his/her
property.

 If deceased left a Will –

testate succession rules
apply; or
 If no Will – prescribed set
 Succession is an estate
planning tool. It is one of the
Four Pillars of Estate
Planning, which are the
following:
(1)A Will (testament)
(2)An Enduring Power of Attorney
(3)An Enduring Power of
Guardianship
(4)And, if you have
superannuation, a Binding
 The passing of a person’s
property can happen either
through a Will or by way of a
Trust.
 A Trust is a legal entity to
which you transfer all your
assets and formally title them
in your Trust instead of your
individual name.
 Your assets are held by you as
 Upon your death, your
designated successor
Trustee steps in your shoes
and manages and
distributes the assets
owned by your Trust to the
Beneficiaries which you
have designated in the
Trust to inherit from you.
 As such, your Trust — and not
your Will — should
According to
Merriam
Webster
dictionary to
“step into
(someone’s)
shoes” means
“to take on a
particular role
or task that
 Assets owned in Trust
avoid Probate, with its
staggering expense and
court delays.

 The terms and structure

of your Trust will be
customized to fit your
specific circumstances
 Because your Trust is
revocable, you can change
the terms of the Trust at
any time during your life.

 And, because you are in

full control of your
assets, the Trust reports to
you and your income tax
It is also possible to have
testamentary trusts,
which are trusts formed
under a will.

The terms of the trust are

contained in the will, but
the trust is not formed
Superannuation
is also a form of
trust - and in most
cases is not an
asset which you
can pass to your
Because superannuation
is not an asset which you
can leave under your will,
it is important that you
leave instructions to the
superannuation trustee as
to how you want your
superannuation distributed
- Binding Death Benefits
What is superannuation?

 It is regular payment made into

a fund [e.g. NSSF or PSSSPF]
by an employee towards a
future pension.

 It is a pension paid to a
retired employee who has
 The law of succession to
property upon death (testate
and intestate), tasks courts of
law with the inherently
difficult problem of trying to
figure out the wishes of the
dead, who continue to
dictate for us from the
grave long after they have
departed from this world,
 Succession is the right a
person or people have to
receive a deceased’s
persons assets (also called
the estate) based on the legal
relationship between the
people (by birth – blood
relationship (nasab – children
and decedent’s relatives), or
 The law of succession is
the system of rules that
governs who gets a
person’s property when
they die.
 Any person born or
conceived prior to the
decedent’s death can be
successor.
 But the law does not force
 Succession to property after
the death of the estate
owner (de cujus) is
therefore the legal process
of passing the
deceased’s property
(estate) from one
generation (or, more
broadly, from one person) to
If for example, you own a
piece of land as a joint
tenant with another
person, say your
wife/husband, your interest
in that land will pass to the
surviving joint tenant
when you die.
It will not form part of
 The decedent’s or de cujus
death is therefore a condition
precedent for applying for a
grant of probate (testate
succession) or of letters of
administration (intestate
succession).

 The fact of death has to be

proved, either through
registration (death
 “Administration of
estate” refers to the
whole process of the
personal
representative
(administrator or
executor) getting the
power by the court to
administer the
 The legal representative of a
deceased person’s estate gets
the power by the court to
administer the deceased’s estate
through a “grant of
representation”:
 If there is a Will (Testate
Succession), the EXECUTOR
applies for “Grant of Probate”
 If Executor is Unwilling or Unable,
court appoints “personal
administrator.’
 A “grant of representation”
is a document, generally
issued by a court, that
officially recognizes the right
of an executor or
administrator to administer
an estate.
 Our focus in this instruction
will be on the practice and
procedure in:
 “Letters of administration”
authorize an administrator to
administer an estate, where the
deceased died without
leaving a Will (i.e. he/she died
intestate).
 “Administrator“ is therefore a
person appointed by the
court to administer the estate
of a deceased person when
there is no executor or no
 A court grants letters of
administration where the
deceased does not leave a
will and grants letters of
administration with the
will annexed where the
deceased leaves a will that
does not appoint an
executor or appoints
executors who are unable or
 Three situations under which
a court may grant Letters of
Administration under
Cap.352 R.E. 2002;

 i) Letters of Administration with

the Will annexed [Section
29(a)–(c)];
 ii) Letters of Administration on
Intestacy [Section 33]; and

 “Probate" means the
copy of a will, or, in
the case of an oral will,
a statement of the
contents thereof,
certified under the seal
of the court, with a
grant of administration
 “Will" (testamentum) means
the legal declaration of the
intentions of a
testator/testatrix with respect
to his/her property, which
he/she desires to be carried
into effect after his/her
death.

 “Executor" means a person to

whom the execution of the
 “Codicil” is an addition or
supplement that explains,
modifies, or revokes a will or
part of one.

 It is a testamentary or
supplementary document that
amends an existing will,
but does not replace it.

 It allows its maker to change

 Section 26 of Cap. 352
stipulates thus:
“Where, after probate has been
granted, a codicil of the will is
propounded, probate may be
granted of the codicil.”
Provided that where the codicil
expressly or imliedly revokes the
appointment of any executors to
whom probate has been
 Section 23 of cap. 352 stipulates
that; “Probate or letters of
administration shall not be granted
to any person who is minor or of
unsound mind.”
 See exceptions under sections 36
and 37 of Cap. 352 respectively –
role of “guardianship.”

 Section 24(1) of Cap. 352 states:

“Probate may be granted only to
As per section 28 of
Cap. 352:

“Probate of a will when

granted establishes
the will and evidences
the title of the
According to Section 44 of
Cap. 352:

“….letters of administration
entitle the administrator to
all rights belonging to
the deceased as if the
administration had been
 In “probate practice”, legal
practitioners may have to deal
with systemic problems
includingthe following:

 Lack of a uniform law of

succession;
 Existence of multiple
succession regimes
(customary, Islamic, Hindu
and state;
Things to do before you file and
case preparation

 Satisfy yourself as to the original

or certified copy of the
deceased’s death certificate or
a judicial order, if presumed
death.

 Inquire on deceased’s domicile at

time of his/her death; his/her tribe
and religion, if any; situs of
 Inquire whether deceased left a
will or died without leaving a
will; and inspect the Will to satisfy
that it is the original copy.

 Be certain if there are no any

other Wills or if there are any
Codicils.

 Satisfy yourself as to personal

standing of
petitioner/applicant; and if he or
 Although not a legal
requirement, if a Clan
Meeting has been
convened and any
minutes thereof.

 Be certain on the
procedure to be followed
when applying/petitioning
for a grant of representation;
 Peruse the applicable laws and
case law, if any, on the subject
matter of your case.

 Just Remember:

 “What any person in the world

can learn, almost all persons
can learn if provided with
appropriate prior and current
conditions of learning.” –
 Decedent’s
Death

Will No Will
(Testate) (Intestate)

Competent
Court

Grant of Deceased’s Grant of

Probate estate Letters of
Administration
Legal Heirs
Process of administration
Tuesday, November 19, 2024(c) 2021 R.V. Makarambaof
J Rtd deceased’s estate 69
 Applicable Laws and
Succession Regimes

Tuesday, November 19, 2024 (c) 2021 R.V. Makaramba J Rtd 70

 Under our “probate laws’,
whether intestate or testate
succession, the “competent
court” has to be moved by
application for a “grant”:

 For intestate succession: a

“Petition for a Grant for
Letters of Administration.”

 For testate succession:

Tuesday, November 19, 20 (c) 2021 R.V. Makaramba J Rtd
24
a
71
 PRACTICE AND PROCEDURE
Kick-starting the process of administration
of estate:
– Proof of Death
– By Certificate of Death (issued by
RITA) or
– By Court order (presumption of death
u/LMA)
– Where to go?
– If deceased’s estate is governed by
Islamic law or customary law: Primary
Court
 What are the Applicable
Laws?
 The Local Customary Law
(Declaration) (No.4) Order, G.N.
No.436/1963, Second Schedule,
Laws on Inheritance [Sheria za
Urithi & Mirathi]; First Schedule -
Laws on Guardianship (Sheria za
Ulinzi)

 The Local Customary Law

(Declaration) Order, G.N. No.
 The Judicature and Application of
Laws Act, Cap. 358 R.E. 2019 –
s.11(c)(ii) “law of a tribe”, “law of
a community” and s.2(3) – on
application of the principles of the
common law and equity.

 The Statements of Islamic Law;

G.N. No. 222/1967 made under
the Islamic Law Restatement Act
s.48(1)(c), [Cap. 375 R.E. 2002] –
This GN has never been brought
 The Probate and Administration
of Estates Act, s.88(1)(a) and
88(2) Cap.352 R.E. 2002 – on
conflict of law test for “small
estates”, and the PROBATE
RULES, G.N. No. 10 of 1963 as
amended by G.N. No. 107 of
1963 and G.N. No. 369 of 1963
 Succession (Non-Christian
Asiatics) Act, s.6(1), Cap.28
R.E. 2002 - the law of the
 The Hindu Wills Act, 1870
- this has been disapplied
by the Judicature and
Application of Laws Act,
Cap.358 R.E. 2002 [now
Cap.358 R.E. 2019]

 The Indian Laws

(Application) Ordinance
• The Indian Succession Act, 1865
[Act No. X of 1865) – Parts XXIX
to XL (inclusive) and section 333 of
the Act were disapplied under
section 165 of the Probate and
Administration of Estates Act, Cap.
352 R.E. 2019.

• Some of the common law

principles on the law of wills
codified under the Wills Act of
1837 of England are also found in
 The Wills Act of 1837, CHAPTER 26
7 Will 4 and 1 Vict. [3rd July 1837].
Available at
 https://
www.legislation.gov.uk/ukpga/Will4
and1Vict/7/26/data.pdf

• This Act codifies common law

principles on law of wills as
applicable in England, some of
which are still relevant to
 Subject matter jurisdiction
 Original jurisdiction over
probate of wills and
administration of estates.
 Grant of probate or refuse to
probate wills
 Appointment of personal
representatives
 Revocation of appointment
 Administering and settlement
of the affairs and the estates.
 Determinants of jurisdiction

 If deceased professed Islam

religion (Islamic Law) or if he
led customary way of life
(Customary Law) - Primary
Court.

 If deceased professed
Christian religion – the Indian
Succession Act will apply -
 If the gross value of estate
does not exceed one
hundred million shillings
(Tshs.100,000,000/=) –
District Court presided
over by District Delegate.
 Section 6(1) of Cap.352 R.E.
2002].
 See also The Written Laws
(Miscellaneous Amendments)
Act, 2020, No. 1 of 2020.
Assented to on 14th February,
2020]

 PART XIII: AMENDMENT OF THE

PROBATE AND ADMINISTRATION
OF ESTATES ACT, (CAP. 352)
 Section 43. Construction and
Section 44. Amendment of
 PART XV:AMENDMENT OF
THE TRUSTEES’
INCORPORATION ACT,
(CAP. 318)

 Section 61. Construction;

section 62. Amendment
of section 2; and Section
63. Amendment of
 PART XII:I AMENDMENT OF THE
PROBATE AND ADMINISTRATION OF
ESTATES ACT (CAP. 352) -
Amendment of section 107
 44. The principal Act is amended in
section 107(3), by deleting the
words “to a fine not exceeding two
thousand shillings or to
imprisonment for a term not
exceeding six months” and
substituting for them the words “to
a fine not exceeding two
 PART XV: AMENDMENT OF THE
TRUSTEES’ INCORPORATION ACT,
(CAP. 318) - Amendment of Section
2
 62. The principal Act is amended
in section 2, by adding
immediately after subsection (3)
the following:
 “(4) The Administrator-General
may, before a trust is incorporated
or at any later stage after
incorporation, require disclosure of
 Amendment of section 8 of
Cap. 318

 63. The principal Act is

amended in section 8(1), by
adding the words “finance,
shares, monies, securities,
stock or other property
after the word “land,”
wherever it appears in
The Written Laws (Miscellaneous
Amendments) (No. 3) Act, 2021, Act No.5
of 2021 Assented on 28th September,
2021

PART III: AMENDMENT OF THE BIRTHS AND

DEATHS REGISTRATION ACT, (CAP. 108) -
Amendment of section 17

“(2) Notwithstanding subsection (1), a death

certificate shall be collected by the surviving
spouse or child, or if for any reason the spouse
or child is incapable of collecting the certificate,
next of kin of the deceased.
PART IX AMENDMENT OF THE
MAGISTRATES’ COURTS ACT,
(CAP. 11)

 Repeal of sections 7, 8 and

9 and replacement of
section 7

 Proceedings which may

 7.-(1) In any proceedings in the
primary court which involves
customary or Islamic law the court
shall, where it considers necessary
in the interest of justice or upon
application by any party to the
proceedings, sit with not less
than two assessors: Provided
that, in deciding matters, the
Magistrate shall not be bound by
the opinion of the assessors.
(3) Without prejudice to generality of subsection
(1), the rules made under subsection (2) may
prescribe for-
(a) qualifications of assessors;
(b) procedure for selection and
appointment of assessors;
(c) manner of summoning assessors;
(d) remuneration of assessors;
(d) procedures for summing-up of
evidence to the assessors;
(e) procedures for delivery of opinion by
assessors; and
(f) any other matter as the Chief Justice
may consider appropriate.”; and (b)
Repeal of section 13

53. The principal Act is amended by repealing

section 13
Amendment of section 33

54. The principal Act is amended in section 33

by adding immediately after subsection (3), the
following:

“(4) Notwithstanding the

provisions of this section, an
advocate or public
prosecutor may appear or act
 (5) Subject to
subsection (4),
procedures applied
in the proceedings
in a primary court
shall apply in cases
where an advocate
or public prosecutor
Amendment of Third Schedule

55. The principal Act is amended in

paragraph 37(2) of the Third Schedule by
deleting the words “and the assessors”

The Written Laws (Miscellaneous

Amendments) Act, 2021, Act No. 1 of
2021 Assented on 15th April 2021

PART II AMENDMENT OF THE

INTERPRETATION OF LAWS ACT, (CAP. 1) -
Amendment of section 84
4. The principal Act is amended in section
84, by

a) deleting subsection (1) and

substituting for it the following:
“(1) The language of laws of the United
Republic shall be Kiswahili.”;
b) adding immediately after subsection
(1) as amended the following:

“(2) Laws of the United Republic that are

currently in the English language shall be
translated into Kiswahili.
(3) Without prejudice to subsection (1), where
circumstances so require, laws enacted in
Kiswahili may be translated into English
language.”;
c) renumbering subsections (2) to (4) as
subsections (4) to (6) respectively;
d) deleting subsections (5) and (6) as
renumbered and substituting for them the
following:
“(5) Where a written law is translated and there
occurs a conflict or doubt as to the meaning of
any word or expression, the language of the
enacting version shall take precedence.
(6) The Minister responsible for legal affairs may
make regulations prescribing circumstances
Addition of section 84A

5. The principal Act is amended by adding

immediately after section 84 the
following: Language of courts, etc.
84A.-(1) Notwithstanding any other
written law, the language of courts,
tribunals and other bodies charged with
the duties of dispensing justice shall be
Kiswahili.

(2) Without prejudice to subsection (1),

courts, tribunals and other bodies charged
(3) Where English language is used in the
proceedings and decisions, such
proceedings and decisions shall be
translated and authenticated in Kiswahili
language.
(4) Where proceedings or a decision is
translated in Kiswahili language and
there occurs a conflict or doubt as to the
meaning of any word or expression, the
language which the proceedings or
decision was recorded shall take
precedence.
(5) The Chief Justice may, in consultation
 Primary Courts’
Jurisdiction
 i) The Magistrates’ Courts
Act, s.18(1)(a)(i) and Fifth
Schedule s.1(1), [Cap.11
R.E. 2019], s.7(3) on
assessors and various Rules
made under it.
 ii) The Primary Courts
(Administration of Estates)
 As per section 19(1) of the
Magistrates’ Courts Act,
the practice and
procedure shall be
regulated under the Fifth
Schedule to the Act.
 See also the case of
Scolastica Benedict v.
Martin Benedict Benedict
 Rule 1(1) of the Fifth Schedule provides
for the specific jurisdiction of the
Primary court in administration of
estate where the applicable law is
Islamic law or Customary Law. See the
decision in Ibrahimu Kusaga v. Emanuel
Mweta [1986] TLR 26.

 The general jurisdiction of Primary

Courts is provided for under section
18(1)(a)(i) of the Magistrates’ Courts
Act under which a Primary Court is
vested with jurisdiction to entertain civil
 In exercising its specific jurisdiction
in administration of estate of a
deceased person, a Primary court is
vested with powers under Rule 2(a),
(b) and (c) of the Fifth Schedule to
appoint administrators or
revoke such appointment.
 The decision in Sekunda Mwambo v.
Rose Ramadhani [2004] TLR 439
demonstrates the powers conferred
on a primary court in appointing or
revoking the appointment of an
 The decision in Sekunda Mwambo
v. Rose Ramadhani [2004] TLR 439
was quoted at length by Hon.
Amour S. Khamis J in PROBATE
AND ADMINISTRATION CAUSE NO.
7 OF 2019 IN THE MATTER OF THE
ESTATE OF THE LATE LEONARD
SHANGALI BURETA AND IN THE
MATTER OF AN APPLICATION FOR
LETTERS OF ADMINISTRATION BY
DENIS LEONARD BURETA, (HCT)
(Tabora)(unreported) dated
 In Sekunda Mwambo v. Rose
Ramadhani, the High Court
summarized the law on
appointment of administrator of
the estate and pointed out
qualities and duties of an
administrator. See pp.3-5 of the
typed judgment, which is
available at https://
media.tanzlii.org/files/judgment
s/tzhc/2020/3829/2020-tzhc-38
 The Fifth schedule to the
Magistrates’ Courts Act is to be
read together with the Primary
Court (Administration of Estates)
Rules, G.N. No. 49/1971 – the Rules.
 Rule 5 provides for the powers and
role of the administrator.
 Rule 6 confers the administrator
with the powers to sue and be sued
on behalf of the estate.
 Rule 8 provides for accountability of
the administrator in event of
The Rules provide for the six
basic forms in the process of
administration of estate in the
Primary Court:

Form No. I
Form No. II
Form No. III
Form No. IV
Form No. V
Form No. VI
 iii) The Judicature and
Application of Laws Act
(JALA)- s.11(3) – courts “to
apply the customary law
prevailing within the area of
its local jurisdiction.”
 “If there is more than one
such law, the law applicable
in the area in which the act,
 The Magistrates' Courts
(Primary Courts) (Judgment of
Court) Rules, G.N. No. 2 of
1988.

 The Probate and Administration

of Estates Act, Cap.352 R.E.
2002 – section 3
 The Magistrates' Courts (Rules
of Evidence in Primary Courts)
Regulations GNs. Nos.22 of
 The Magistrates' Courts
(Civil Procedure in
Primary Courts) Rules.

 The Magistrates' Courts

(Limitation of Proceedings
Under Customary Law)
Rules, G.N. No. 311 of
1964
 The Magistrates Court
(Approved Forms for the
Primary Court) Rules, 2020,
G.N. No. 943 Published on
6/11/2020

 Magistrates’ Courts (Powers of

the Primary Court in
Matrimonial Matters and
Probate and Administration
Causes) Rules, 2021, G..N. No.
 Magistrates’ Courts (Variation
of the Designation of the
District Court for Matrimonial
Matters and Probate and
Administration Causes) Order,
2021, G.N. No.641 published on
27/8/2021.

 Judicature and Application of

Laws (One-Stop Judicial Centre
of Temeke) (Establishment)
 High Court Registries
(Amendment) Rules, 2021,
G.N. No.638 Published On
27/8/2021

 The Judicature and Application

of Laws (Criminal Appeals and
Revisions in Proceedings
Originating from Primary
Courts) Rules, 2021, G.N.
No.390 published on
 The Probate and
Administration of Estates
Act provides a system for
appointing an
administrator when an
estate is a “small estate”
and the scheme for the
ADMINISTRATION OF
SMALL ESTATES is
 In terms of section 92(1) of Cap.
352, which falls in part IX of the
act regarding estates administered
in accordance with customary law,
custmon and Islamic law, it allows
for the application o the Act in a
primary court where either there is
a gazetted ministerial order
(s.92(1)(a) or where the High
Court of its own motion or upon
application of a district court, or
where the estate is not a small
 (c) A district court
presided over by a
district magistrate of
its own motion or upon
application of an
interested party,
directs that part VIII
shall apply to any
 As per section 92(2) of Cap.
352, where the High Court
directs that the Act shall
apply it may either exercise
jurisdiction itself or order a
district delegate to exercise
jurisdiction, or where the
estate is a small estate,
directs that a District court
presided over by a District
 In case of larger estate,
administrator may be
“any person who,
according to the rules for
the distribution of the
estate …would be
entitled to the whole or
any part of such
deceased’s estate” [Sect.
 In cases of conflict, the
court “shall take into
account greater and
immediate interests in
the deceased’s estate
in priority to lesser or
more remote
interests.” sect.33(2)
 The Administrator
General Office can
distribute estates in cases
where there are no
candidates for
administration or where
there is a disagreement -
Administrator-General
 Choice of Law Rules
 The Law Applicable to the
Administration and Devolution
of Estate of Deceased Person,
where there is a High court
order that the Act applies in
Primary Court under the PART
IX: ESTATES ADMINISTERED IN
ACCORDANCE WITH
CUSTOMARY LAW, CUSTOM
AND ISLAMIC LAW [ss. 92-93]
The law applicable to the
administration of small
estates:

 Section 88(1) - estate of a

member of a tribe shall be
administered according to
the law of that tribe
unless the deceased at any
 Section 88(1)(b) - The estate of
a Swahili shall be administered
according to Islamic law.

 Section 88(2) - If at any time any

person to whose estate this Act
applies by virtue of an order, or
direction under Part IX thereof
professed the Christian
religion, law applicable in
Tanzania to the administration
of the estates of persons
 A Primary Court lacks jurisdiction in
administration of estate of a person
dying professing Christianity.

 See Misc. Civil Application No.1 of

2017, Jeremiah L. Kunsindah vs.
Leila John Kunsindah, High Court of
Tanzania, Mwanza (unreported)
dated 11/07/2017.
 See PC. Probate Appeal No. 2 of
2014 Between Rev. Florian Katunzi
vs. Goodluck Kulola & 7 Others,
 In terms of section 88(2) of
Cap. 352, the law applicable in
Tanzania to the administration
of the estates of persons
professing the Christian
religion is the Indian
Succession Act, No. X of
1865.

 In India, the Act has undergone

several amendments, and has
 See The Indian Succession
Act, 1865 (Act X of 1865)
With a Commentary, and
the Parsee Succession Act,
1865, Acts XII and XIII of
1855, and the Acts Relating
to the Administrator
General, with Notes , Part
38 (1865) [Reprint]
[Softcover], India , Whitley
A copy of the Indian Succession Act
can be accessed at the following web
addresses:

 https://
babel.hathitrust.org/cgi/pt?id=hvd.h
l68cf&view=1up&seq=303

 https://
www.indiacode.nic.in/repealed-act/r
epealed_act_documents/A1865-10.p
See The Probate and Administration of Estates
Act, CAP 352 R.E. 2002 available at https://
rita.go.tz/eng/laws/probate%20act.pdf

• Section 165. Certain Acts disapplied

• The Acts specified in the First Part of the

Third Schedule are disapplied to Tanzania to
the extent specified in the fourth column of
that Schedule.

• (2) [Repeals various Ordinances.]

• THIRD SCHEDULE: ENACTMENTS DISAPPLIED
(Section 165) - PART I - The Indian
Succession Act, 1865 Act No. X, Parts XXIX to
Test for Choice of Law – The
Manner or Mode of Life Test

 The court exercising jurisdiction

over the deceased’s estate has to
be satisfied from the written or
oral declarations of the deceased
or his acts or manner of life
that the deceased intended
his/her estate to be administered,
either wholly or in part, according
to a certain law – customary, or
Religion is not a bar to
succession:
 Section 88 (4) of Cap. 352 -
Notwithstanding any
customary or Islamic law to the
contrary–
(a) ….
(b) a person shall not be
deprived of a right to
succession to property by
 Conflict of Law Rules
The Judicature and
Application of Laws Act
(JALA), cap. 358 R.E. 2002
 A. Application and
Recognition of Laws (Ss.
9-21)
 B. Application of
Customary Law (Ss. 11-
Sec. 11(1) Customary law is
applicable only in matter of
civil nature:
 (b) relating to any matter of
status of, or succession to,
a person who is or was a
member of a community in
which rules of customary
law relevant to the matter
are established and
 S.11 (3) In any proceedings
where the law applicable is
customary law, the court shall
apply the customary law
prevailing within the area
of its local jurisdiction, or if
there is more than one such
law, the law applicable in the
area in which the act,
transaction or matter occurred
or arose, unless it is satisfied
 Provided that the court shall not
apply any rule or practice of
customary law which is
abolished, prohibited,
punishable, declared unlawful
or expressly or impliedly
disapplied or superseded by
any written law.

 S.11(4) Notwithstanding the

provisions of this Act, the rules of
customary law and the rules of
Relevant Case Law on Choice of
Law and Conflict of law Rules

 Re Innocent Mbilinyi, deceased

[1969] HCD No. 283 (Ngoni married
to Chagga under Christian rites &
living in Dar).

 Re Estate of The Late Suleman

Kusundwa [1965] E.A. 247
(Nyamwezi married 4 wives in
Islamic form, wrote will leaving a
 Hussein Mbwana vs. Amir
Chongwe, Civil Appeal No. 1
of 1963 (T) (unreported)
(Spry, J.) – African Muslim
Community

 The Estate of the Late

Salum Omari Meremi [1973]
LRT No. 80 – Hehe Moslem
 George s/o Kumwenda vs.
Fidelis Nyirenda [1981] TRL
211
 Abdalla Shamte vs. Mussa
[1972] HCD No. 9
 Tatu Abdallah vs. Waziri
Mussa [1975] LRT No. 7;
 Sharifa Said vs. Rajabu
Said [1976] LRT No. 52.)
*Courts in Probate
and Administration
Cases
*Procedures in Primary
Court
• Section 18(1)(a)(i) of the Magistrate
Court Act, [Cap.11 R.E 2002] vests a
Primary Court with jurisdiction in all
proceedings of a civil nature, where the
law applicable is customary law or
Islamic law.

• In terms of the Fifth Schedule to the

Magistrates’ Courts Act, Cap.11 R.E.
2002 and the Judicature and
Application of Laws Act, Cap.358 R.E.
2002, a Primary Court has exclusive
jurisdiction in the administration of the
• Ibrahim Kusaga v. Emmanuel Mweta
[1986] T.L.R. 26
• Rev. Florian Katunzi vs. Goodluck Kulola
& 7 Ors. PC. Probate Appeal No. 2 of
2014 (HCT)(Mwanza)(unreported)
(03/06/2016)

• In granting letters of administration of

estates, the jurisdiction of a Primary
Court is limited where the law
applicable is Customary and Islamic
Law.
Gibson Kabumbire v Rose
Nestory Kabumbire, Probate
Appeal No. 12 of 2020 (HCT)
(Mwanza)(unreported)(F.K.
Manyanda J.)(13/08/2021).

Among the grounds of appeal

was that the trial court had no
jurisdiction to entertain the
Probate Cause because the Late
Rev. Florian Katunzi vs. Goodluck
Kulola and Others, PC Probate
Appeal No. 02 of 2014
(unreported) (Hon. Makaramba, J.
as he then was) cited.
 Who may apply for grant of
probate and letters of
administration?
 Section 33(1) of Cap. 352 - “any
person who, according to the
rules for the distribution of the
estate …would be entitled to the
whole or any part of such
deceased’s estate.”

 Rule 2(a) of GN 49/1971 –

“persons interested in the
 In case of conflict the court tom
look at the “greater and immediate
interests in the deceased’s estate
in priority to lesser or more remote
interests.” [sect.33(2) of Cap. 352]

 The Administrator General Office

can distribute estates in cases
where there are no candidates
for administration or where
there is a disagreement -
Administrator-General (Powers and
 The purpose of a clan meeting is
to “nominate” a person to take
out letters of administration.

 Minutes of clan meeting not

a legal requirement, only
“good practice.”

 It is the duty of the Court to

appoint an administrator,
absent of any person
 Sub-paragraph (2)(a) and (b) of
paragraph 1 of the Fifth Schedule
to the MCA prohibits a PC from
dealing with matters for which
Cap.352 applies or of which the
administration is undertaken by
the Administrator General’s Power
and Functions Act unless directed
by the High Court.

 See Violet Ishengoma & Jovin

Mutabuzi v The Administrator-
 Relevant applicable laws
 The Magistrates’ Courts Act,
Cap.11 R. E. 2019- s. 18(1) –
civil matters;

 The Fifth Schedule to the

Magistrates’ Courts Act, Para
2(a) & 2(b);

 The Primary Courts

• The Fifth schedule to the MCA is
to be read together with the
Primary Court (Administration of
Estates) Rules, G.N. No. 49/1971
(The Rules).

• The Rules provide for the six

basic forms in the process of
administration of estate in the
Primary Court, namely: Form
No. I; Form No. II; Form No.
 Form No. I: for
providing the basic
and necessary
information
regarding the
deceased’s
property, his heirs
 Form No. I provides critical
information pertaining to
the jurisdiction of the
court and the law
applicable: date of
death, religion and tribe
of the deceased, fixed
place of abode (domicle),
and situs of the
 Form No. II: is Notice
(citation) issued by the court
on the basis of the
information contained in
Form No. I.

 In terms of Regulation 5(2)

and (4) of the Rules – it
provides all interested
parties with information of
 The practice previously
was for the Notice to
the general public
(citation) to remain in
force for ninety days
(90) but as per the
Principal Judge Circular,
the period was reduced
 Upon expiry of the notice
period, the court will
proceed to determine the
application including
objection(s), if any.
 In the course of the
hearing, the trial
Magistrate has to
ascertain certain
 Form No. III: provides for a
bond.

 Form IV: is grant of

administration.

 Form No. V: inventory to

be filed by the administrator
within 4 months of his
appointment.
Procedure for Applying for Grant
of Probate or Letters of
Administration under G.N. No. 49
of 1971

(1)Rule 3 – application for

appointment of administrator vide
Form No.1 – para 2(a) and 2(b) of
Fifth Schedule.

(2)Whether Minutes of Clan Meeting

should accompany Form No. I – not
(3)Court issues notice in
appropriate form to all
persons who are known
or alleged to be near
relative of the
deceased requiring
their appearance in
court on the hearing
 The notice has to be
posted at a conspicuous
place on the courthouse
and published in local
newspapers having
substantial circulation –
See Hawa Mabruky v.
Veronica Clara Esanga,
Civil Appeal No. 111 of
(4) Matters to be considered
by the Primary Court in
exercise of its jurisdiction in
probate and administration
matters – See Rule 8(a) to (h)
of gN 49/1971

(5) Appointment of an
(6)Within 4 months of
the grant, the
administrator must file
an inventory in court
Form No. V being a
complete statement of
all assets and liabilities
of the deceased
 The requirement for the
administrator to file an inventory
is not discretionary, but a legal
duty.

 See Godbless Mathew Naibala v.

Anneth John M.N. Lukumay, Civil
Application no. 119/142 of 2008
(CAT)(DSM)(unreported;
 Naftali Joseph Kalatu v. Angela
Madshirima, PC Civil Appeal No.
(7)At such other
intervals, the
administrator has to file
in court Form No.VI
showing moneys
received, payments
made and property or
other assets sold or
(8) The filing in Court of
Form No. VI by the
administrator technically
signifies the manner in
which the assets of the
deceased’s estate have
been dealt with marks
the finalization of the
Note:

 The Rules do not specifically

provide the procedure for
closing of the probate and
administration cause file.

 However, the filing of Form VI

may serve as evidence of end
of the process of administration
of the deceased’s estate.
Note:
 The duty of the court in
administration of estate of a
deceased person is only to oversee
and determine matters pertaining
to grant of letters of administration
and grant at large to a particular
administrator.

 The court has no business and

ought not to have distributed the
estate of the deceased, fore that is
Applications for revocation of grants
and grounds thereto

 Applications for revocation of

grants and grounds thereto under
rule 9(1)(a) to (e); and the orders
after revocation of grant are under
rule 9(2)(a) to (e) of GN 49/1971.

 An application for revocation of

grant of administration of estate
has to be filed in the court
 A District court does not
have power to revoke
grant of administration of
estate.

 See Ally Omari Abdi v.

Amina Khalil Aly Hildid (As
Administrator of the Estate
of the Late Kalil Ally
 Procedural Steps: Summary

 Filing Form No.1[Rule 3 of G.N.

No.49/1971]
 Issuance of Notice by Court
(citation) [Rule 5(2)]
 Court hears the applicant, and if
no objection, appoints him/her as
administrator [Rule 6] – Forms No.
III and IV
 In case of objection, the rules do
not provide for the procedure to
 Objection Proceedings in
Primary courts

 Rule 8(a) – (h) of GN

No. 49 of 1971
provides for matters
which a PC may deal
with an thus constitute
the basis for
 The procedure for
hearing of such
objection
proceedings is
regulated by the
Magistrates’
Courts (Civil
Revocation of Grants in Primary
Courts

 The grounds for revocation of the

grant are provided under
regulation 9(1) of GN 49/1971

 See Reg.9(1)(a) to (e) of GN

49/1971

 The consequences for the

revocation of the grant are
 Recent Jurisprudence
Powers of PC to appoint and
replace administrators – a
“judicial duty” enshrined in the
law.

 See P.C Probate Appeal No. 2

of 2019, Abdul Aziz Hussein
Ntumiligwa vs Yunus Hussein
Ntumiligwa, HCT, District
Registry of Kigoma (A.
Cases Referred to:
 Mohamed Hassani vs.
Mayasa Mzee and
Mwanahawa Mzee (1994)
TLR 225
 Seif Marare vs Mwadawa
Salum [1985] TLR 253
 Safiniel Cleopa v. John
Kadeghe [1984] TLR 198
 See P.C Probate and
Administration Appeal
No.1 of 2019, Elias
Madata Lameck vs
Joseph Makoye Lameck,
HCT District Registry at
Musoma (30/04/2020)
(Kahyoza J)(unreported)
Cases referred to:

 Hadija Said Matika v.

Awesa Said Matika, P.C.
Civ. Appeal No. 2/2016
(HCT)(Mtwara) (Mlacha J.)
(unreported)
 See P.C. Civil Appeal No.6
of 2020, Oliver Bernard
vs. Kornel Bernard, HCT,
District Registry at
Arusha (18/09/2020)
(Masara J. (unreported)
Cases Referred to:
 Sekunda Mwambo vs. Rose
Ramadan [2004] TLR 439
 Naftary Petro vs. Mary Protas,
Civil Appeal No.103 of 2018
(unreported)(CAT)
 Angela Philemon Ngunge vs.
Philemon Ngunge, Probate
and Administration Appeal
No.45, HCT(unreported)
(Chocha J.)
 A CASE STUDY

Civil Appeal No. 51 of

1999, Waziri Maneno
Choka vs Abasi Choka
[Coram: Ramadhani, J.A,
Kaji, J.A and Kileo, J.A)
(30/10/2006 (CAT)
(DSM) (unreported).
 Facts of the case:

Maneno Choka (dcd) was Abas Choka

eldest brother. Waziri Maneno Choka
is the son of the late Maneno Choka.
Abas Choka, applied for letters of
administration of the estate of the
late Maneno Choka in the Primary of
Bagamoyo. Waziri Maneno Choka
resisted the application. Waziri's
mother is Salma Mbaraka. There was
no marriage solemnized between the
The late Maneno Choka left a will
bequeathing all his property to
Waziri Maneno Choka. The
Bagamoyo Primary Court found
Waziri Maneno Choka to be
entitled to be appointed
administrator of the estate of his
father instead of Abasi Choka.
The Primary Court also found that
Waziri Maneno Choka was
entitled to inherit his father's
 Abas Choka was aggrieved and
appealed to the District Court. The
District Court held that the Primary
Court was justified in appointing
Waziri Maneno Choka administrator
of his father's estate. But found him
to be a stranger to the estate. That
under Islamic law if a person makes
a will in favor of a stranger the
bequest to the stranger should not
exceed one third of the testator's
estate. Waziri was dissatisfied with
 The High Court found that
Mohamedan law permits a man to
acknowledge another as his
legitimate child, which proceeds on
assumption of existence of a lawful
union between the parents of the
acknowledged child. The deceased
was not married to Waziri Maneno
Choka’s mother. So his
acknowledgment by the deceased as
his son did not have a legitimating
effect to entitle the appellant to
 Found further that the Waziri
Maneno Choka could only be
entitled to one third of the
estate of the deceased
according to Islamic Law.
 Dissatisfied with the High
Court decision (Mwita, J.),
Waziri Maneno Choka
approached the Court of
Appeal of Tanzania.
 High Court Noted:
 Waziri Maneno Choka was
acknowledged by his deceased
father in his will as his son.
 Waziri Maneno Choka’s deceased
father lived and cohabited with
Waziri Maneno Choka’s mother
under the same roof over thirty
year.
 Therefore Waziri Maneno Choka
was entitled to inherit the
deceased's whole property in the
 Findings by CAT

Both the District Court and the High

Court did not award the
respondent two thirds of the
estate. They said that Waziri Maneno
Choka could only be entitled to one
third of the estate in consideration of
the fact that there was a will left by
the late Maneno Choka. The
remaining two thirds was to be
distributed amongst lawful heirs of
 The appointment of Waziri
Maneno Choka as
administrator of his late
father's estate has not yet
been revoked. He is the one
entrusted with the
responsibility of distributing
the estate, that is, he is the
one who is to decide how
much each one who is
 Issue for determination by CA:

 Whether Waziri Maneno Choka

should be entitled to the whole
estate in accordance to the will
of the late Maneno Choka.

 Maneno Choka was a Moslem.

 No marriage solemnized
between Maneno Choka (dcd)
and Salma (Waziri Maneno
Choka’s mother).
Salma at the trial admitted
that:

"Marehemu pamoja na
kuishi muda wote huo lakini
hatukuwahi kufunga ndoa
yoyote ile si ya Kiislamu
wala kimila ila tulielewana
na tukaishi hadi umauti
The settled position under
Islamic law:

 Testamentary disposition may not

exceed a third of the estate.
This rule applies irrespective of
whether the disposition is to an
heir recognized under
Mohamedan law or a stranger.

 CAT’s Holding: No reason to fault

 Lessons Learnt

 Religion as ground for application of

inheritance rules.
 Marital status and blood relationship as
basis for entitlement to a share in
deceased’s estate.
 Limitation to freedom of testamentary
disposition - the 1/3rd and 2/3rd rule in
Islamic law.
 Inheritance rights of legal heirs vis-à-vis
strangers.
 The doctrine of “acknowledgment
Note:
 For Tanzania Mainland, religion is not a
bar to succession to property. See
Section 88 (4) of Cap. 352 which
stipulates that;

 “Notwithstanding any customary or

Islamic law to the contrary–
 (a) ….
 (b) a person shall not be deprived of a
right to succession to property by
reason of that person having renounced
or having been excluded from the
Procedures in District
Court
• The jurisdiction of a
district court in
administration of
estates vis-à-vis that of
a “district delegate”
is rife with some
controversy,
particularly on the
 Under Cap. 352 R.E 2002 as
recently amended, a “District
Court” presided by “district
magistrate” has jurisdiction in
administration of estates where the
estate is a “small estates”,
meaning an estate whose gross
value does not exceed one
100,000,000/=.

 A “District Delegate” is a
“Resident Magistrate” appointed
As per the Written Laws
(Miscellaneous Amendments)
(2) Act, 2016, Act No. 4 of
2016 assented on 7th July 2016

• PART XVIII: AMENDMENT OF

THE PROBATE AND
ADMINISTRATION OF ESTATES
ACT, (CAP.352) - Amendment of
section 2
https://tanzlii.org/tz/legislation/
 55. The principal Act is
amended in section 2 by
deleting the definition of the
term “small estate" and
substituting for it the following
definition- ’‘small estate"
means an estate the gross
value of which a court,
district court or other
authority having
jurisdiction in probate or
 Previously, the law
defined a small estate to
mean “an estate the
gross value of which a
court, district court of
other authority having
jurisdiction in probate or
administration is satisfied
does not exceed ten
 Section 6(1) of Cap. 352
provides that: “a district court
presided over by a district
magistrate shall have
jurisdiction in the
administration of small
estates, with powers to
appoint administrators of
small estates using Form
specified in the Fourth
Schedule to this Act, where
• In terms of Section 6(2) of the
Act, “the jurisdiction of a
district court shall be
exercised in accordance with
the provisions of Parts VIII
and IX.”

• Part VIII of the Act section [A]

deals with “Practice and
Procedure in Appointing, and
Revoking the Appointment of,
 Section 73(1) of the Act which
falls under Part VIII of the Act
talk of a “district court
presided over by a district
magistrate.
 Section 5(1) of the Act on the
jurisdiction of District Delegate,
states:
 “The Chief justice may, from
time to time, appoint such
resident magistrates as he
Section 5(2) of the Act states as
follows:

 “A District Delegate shall

have jurisdiction in all
matters relating to probate
and administration of
estates with power to grant
probate and letters of
administration of estates if the
deceased, at the time of his
“(a) non-contentious cases;

(b) contentious cases, if the

Delegate is satisfied that the
gross value of the estate
does not exceed fifteen
thousand shillings, or the
High Court authorizes the
Delegate to exercise
jurisdiction in such
 The mere fact that a
district delegate has
exercised jurisdiction in
the administration of an
estate the gross value of
which exceeds fifteen
thousand does not
make such exercise of
powers invalid.
 But where the District
Delegate becomes aware
of such circumstances in
any contentious case,
he shall report the matter
to the High Court which
shall either direct the
transfer of the proceedings
to itself or authorize the
Delegate to exercise
 Section 5(4) of the Act
categorically bars a
District Delegate from
exercising any of the
powers expressly
conferred on the High
Court.

 Such powers include for

example, resealing grants
 Note the law still provide
for a District Court
presided over by a
District Magistrate,
which a dying cadre,
since all judicial officers
who preside over both
civil and criminal matters
in subordinate courts are
 According to section 6(1)
of Cap.352, a district
court presided over by a
district magistrate has
jurisdiction in the
administration of small
estates, where the
deceased died within
the jurisdiction of the
 On the other hand, a
District Delegate
who is a Resident
Magistrate
specifically appointed
by the Chief Justice
has jurisdiction in all
matters relating to
 A District Delegate can
exercise jurisdiction if
the deceased at the
time of his death, had
his fixed place of
abode within the area
for which the Delegate
is appointed.
 However, powers of a
District Delegate in
administration of estates
in contentious matters
are limited.
 Where the gross value of
the estate exceeds
fifteen thousand shillings,
the District Delegate has
 Rule 83 of the Probate
Rules provides for the
procedure on how the
High Court is to deal with
a contentious case
reported to it by a District
Delegate, where the gross
value of the estate
exceeds fifteen thousand
 Whereas the jurisdiction of a
District Court presided
over by a District
Magistrate is limited only
to “small estates”, the
jurisdiction of a District
Delegate presided over by
Resident Magistrate
extends to all matters
subject to certain powers
 The law limits the jurisdiction of
a district court in
administration cases to the
gross value of a small estate –
previously 10,000/=, now
100,000,000/=.
 There seems to be gloss over
on the amount of gross value of
estate above which a District
Delegate cannot exercise
jurisdiction in contentious
 Pecuniary jurisdiction of
subordinate courts

 The Written Laws

(Miscellaneous Amendments)
Act, 2016 Act No.3 of 2016
assented on 7th July 2016:

 Primary Courts (s. 18 of MCA)

50,000,000/= and 30,000,000/=
respectively.
 The procedure applicable
in a District Court
presided over by a
District Magistrate in
appointing and revoking
appointment of
administrators of small
estates is provided for in
Part VIII of Cap. 352
*Procedures in District
Delegate
 Stay of proceedings

Section 54(1) of Cap. 352

 (a) Application in respect of an
restate the gross value exceeds
fifteen thousand shillings, and
if it is opposed; or
 (b) it otherwise appears to the
District delegate that probate or
letters of administration ought not
to be granted
 Stay the proceedings and report
 54(3) of Cap. 352
 Application, with any documents
filed to be returned to the
applicant for the same to be
presented to HCT, unless DC
decided to impound them and
send them to the HC.

 See also Part VIII: A: Practice and

Procedure in Appointment and
Revocation of Administrators of
Small Estates - Sections 73 – 87
 Under section 54(2) of Cap. 352:
The High Court may order DC to
proceed or forbid any further
proceedings.

 As per section 54(3) of Cap.352,

where the District delegate forbids
and further proceedings, may
either return the application, with
any documents filed may be
returned to the person by whom
the application is made in order to
In terms of Rule 83 of the Probate
Rules:
"Where an application for grant of
probate or letters of administration
has been made to a District Delegate
in respect of an estate the gross
value of which exceeds fifteen
thousand shillings and a person who
has filed a caveat against such
application has entered an
appearance, the District Delegate
shall upon receipt of the appearance
 As per Rule 83 a District
Delegate does not have
jurisdiction to entertain a
contentious matter where
the value exceeds fifteen
thousand.
 Rule 83 was considered in
the case of Ashura M.
Masoud vs Salma Ahmad,
PC Civil Appeal No. 213 of
Procedures in the High Court
Petition for Grant of Probate & Letters of
Administration
Under Cap.352
Petition for Probate [s.55]
R.E. 2002
Petition for Letters of
Administration [s.56]
Petition with the will annexed Application for letters of
administration
Contents under s.55(1)(a) – (e) Contents under s.56(1)(a) – (f)
Fixed place of abode & no other Fixed place of abode within the
probate proceedings in place jurisdiction
Letters of Administration for
Special Purposes [ss.35, 36, 37,
38, 39, 40, 41, 42, 43]
Establishes the will and Entitle administrator to all
evidences title of executor from rights belonging to deceased as
death of testator [s.28 of cap. if administration had been
352] granted at moment after
deceased’s death. [s.44 of Cap.
352]
The jurisdiction of the High Court
in administration of estates is
curved under section 3 of Cp. 352
as follows:
 The High Court shall have
jurisdiction in all matters
relating to probate and
the administration of
deceased’s estates, with
powers to grant probates
 Furthermore, section 4 of
Cap. 352 stipulates that:

 The High Court shall have

jurisdiction to re-seal
grants of probate and
letters of administration
made by a court of probate
in any part of the
Commonwealth in
Applicability of the Probate
and Administration of Estates
Act:

 “Subject to the provisions of

section 87 and Part IX, this Act
shall apply to the
administration of the estates of
all persons dying domiciled,
or leaving property, in
Tanzania whether before, on or
“All persons dying
domiciled in Tanzania”:
 A person’s domicile is the
place where he or she is
permanently resident,
requiring both the fact of
residence and an actual
intention to remain
permanently (animus).
 The provisions of the Act do not
apply to the administration of any
estates for the administration of
which a primary court has
jurisdiction unless [s.92(1) of
Cap. 352

 (b) the High Court, either of its

own motion, or upon the
application of a district court,
or where the estate is not a small
estate, of an interested party,
 (2) Where the High
Court directs that the
Act is to apply, it may
itself exercise its
original jurisdiction
in respect of that
estate, or order that a
District Delegate shall
 Time Limit in Filling
Application
(1) In any case where probate or
administration is for the first time
applied for after expiration of
three years from the death of the
deceased, the petition shall
contain a statement explaining
the delay.

(2) Should the explanation in the

petition be unsatisfactory, the
Form and Content of Petition
[Rule 33]

 Appropriate form prescribed in

Forms 18, 20, 21 and 22 set
out in the First schedule.
 Accompanied by the following
documents:
 (a) the last will of the
deceased and all codicils
thereto and, when necessary,
 (b) subject to the
provisions of rule 63, a
certificate of death of
the deceased signed
by a competent
authority;
 (c) an affidavit as to the
deceased’s domicile at
the time of hos death;
Form and Content of Petition
for Letters of Administration
[Rule 39]

 Appropriate form prescribed in

Forms 26 or 27 set out in the
First schedule.
 Accompanied by the following
documents:
 (a) subject to the provisions of
rule 63, a certificate of death
 (b) an affidavit as to the
deceased’s domicile at the
time of hos death [Rule 64];
 (c ) an administrator’s oath;
[Rule 65, 67].
 (d) subject to the provisions pf
rule 66, an administration
bond; [rule 66, 68]
 (e) a certificate as to the
financial position of the
sureties; [Rue 69]
 (f) subject to the
provisions of rules 71
and 72, consent of the
heirs;
 (g) in the case of an
application for a grant of
sole administrator, an
affidavit as required by
rule 32.
 Requirement as to consent
[Rule 71]

 Petition for an application for the

grant of letters of administration
made on an intestacy, the petition
has to be supported by written
consent of all those persons, who,
according to the rules for the
distribution of the estate of an
intestate applicable in the case of
 Written consent of the universal or
residuary legatee and such
persons or persons, being
beneficiaries under the will, as
would have been entitled to the
whole or part pf the testator's
estate had the testator died
intestate, is also required where
the deceased died testate and
an application is made for the
grant of letters of
administration with the will
Application to High Court or
District Delegate for a Grant
 Area in which the deceased at the
time of his death had his fixed
place of abode [s.53(1) of Cap.
352]
 Executor Appointed by Will – s.24
of Cap. 352
 Letters of Administration with
the Will Annexed – s.29 (i) –
(v) of Cap. 352
 Letters of Administration on
Procedure in Non-contentious
Matters

 Petition for Grant of Probate

and/or Letters of
Administration

 Verification of Petition [s. 57

of Cap.352]
 Oath to faithfully
administer the estate and to
account [s.66 of Cap. 352]

 Bond with one or more

surety or sureties, engaging
for the due collection,
getting in, and
administering the estate of
the deceased [s.67of Cap.
 According to section 52(a)
of Cap. 352, the
proceedings of the court
relating to the grant of
probate and letters of
administration shall be
regulated, so far as the
circumstances of the case
admit, by the Civil
Procedure Code, or any
 Procedure in Contentious
Matters
[Rule 82]

 Caveats [s.58 of Cap. 352]

 Proceedings Subsequent to
Caveat [s.59] & s. 52(b) of
Cap. 352
 Lodgment and Form of
Caveat:

 R. 82(1) - In prescribed Form

62 set out in First Schedule,
attested by person before
whom an affidavit may be
sworn.
 R.82(2) - An application under
section 59(2) of the Act for a
citation to a caveator in
• Rule 82(2A) – Petitioner is required
to make application under section
59(2) of the Act within thirty
days after the petition or the
caveat has been lodged.
• If he fails to do so, the Registrar
shall cause a notice in
prescribed Form 63A in First
Schedule to be served upon the
petitioner requiring him to lodge
such application within a further
period of twenty-one days
 Rule 82(2B) – If petitioner fails
to lodge the application within
the extended period of 21
days, the petition shall be
deemed to have been
withdrawn.

 Rule 82(2C) – Service shall be

by personal service either on
the petitioner or his advocate
through whom the petition was
• Rule 82(2D) It is open to a
petitioner whose petition has
been deemed withdrawn, to
apply to the court for
restoration of the petition
and where it appears to the
court that it is just and
equitable to restore the petition
it shall make an order restoring
the petition upon such terms as
to costs or otherwise as it
 Provided that no petition
shall be restored under
this paragraph so long as
any grant by any court in
Tanzania of probate or
letters of administration
of the estate concerned
in favour of any other
 Rule 82(2E) An application
for the restoration of a
petition shall be by
chamber summons
supported by an affidavit
giving reasons why the
order applied for should be
made and shall be
accompanied by an
application under section
 Rule 82(2F) A copy of an
application for the
restoration of a petition and
a copy of the affidavit
lodged in support thereof
shall be served upon the
caveator.

 Application for a citation to

 Rule 82(3) Upon receipt of the
application, Registrar issues a
citation in prescribed Form 64
in First Schedule to the caveator
calling upon him to state, within a
period of thirty days from the date
of the service of the citation upon
him, whether he supports the
grant of probate or letters of
administration to the
petitioner, and, if he does not,
requiring him to enter an
 Rule 82(4) Appearance by
a caveator shall be in
prescribed Form 65 in
First Schedule and shall be
accompanied by an
affidavit stating the right
and interest of the
caveator and the grounds
of the objection to the
 Rule 82(5) A copy
of the appearance
and the affidavit
filed under the
preceding rule shall
be served upon the
petitioner.
 Rule 82(6) Where a
caveator enters an
appearance the
proceedings shall be
numbered as a suit and
the Registrar shall appoint a
date upon which the suit
shall be listed before a
Judge in Court for such
 In Nuru Hussein vs. Abdul
Ghani Ismail Hussein [2000]
TLR 217 at page 218 the Court
of Appeal held that;

 “The filling of a caveat in a

probate or administration
proceedings changes the
proceedings into an ordinary
civil suit, the Petitioner
becoming the Plaintiff and
In Nuru Hussein vs. Abdul Ghani
Ismail Hussein [2000] TLR 21, the
Court of Appeal of Tanzania
observed:
 That it has become aware of
instances where two decisions
have been rendered, that is, a
decision on a supposedly sui-
within-a-suit, followed by a
decision on the application for
letters of administration,
 Whether there is a need
to file afresh the case in
the court where the
caveat has been lodged
or the hearing will
proceed by relying on the
affidavit and counter-
affidavit filed by the
petitioner and the
 See Maulid Hassan
Mwanyiro & Zainabu
Dachi v Jabir Hassan
Mwanyiro & Wasinawiya
Hassan Mwanyiro, Civil
Case no. 136 of 2006
(HCT)(DSM)(unreported).
Facts
 The suit originated from
Probate and
Administration cause
No.27 of 2006 filed in the
High Court in which the
plaintiffs had applied to
be appointed Executor of
the Will of the late
 Before appointment was granted,
the defendants filed a CAVEAT
oppossing their appointment as
executors and questioned the
validity of the Will. The High Court
(Kalegeya, J.) ordered parties to
initiate civil proceedings. The
usual Plaint and Written
Statement of Defence were filed,
followed by a First Pre-trial and
Scheduling Conference. Mediation
was unsuccesful and the matter
 This procedural quagmire is
mots probably rooted in
difficulty inherent in the
provisions of sections 52(2) of
Cap. 352 as regards the “filing
of special pleadings” and “…
the proceedings shall take, as
nearly as may be the form
of a suit in which the
petitioner for the grant shall be
the plaintiff and any person
 The life span of a caveat: four (4)
months – See section 58(5) Cap
352:
 "A caveat shall remain in force for
four months after the date upon
which it was lodged (unless sooner
withdrawn) but, subject to the
provisions of section 59, may be
renewed."
 See Eva Ndimangwa Mrutu vs.
Mkunde Peter Kitunga Civil Case
No. 68 of 2017 (HCT)(DSM)
 Where a caveat has been lodged,
the petitioner has to apply for
citation to the caveator calling
upon him to state, whether he
supports the grant of probate or
letters of administration to the
petitioner. If he does not, to require
him to enter appearance to the
petition.

 See Re Estate of Joseph Saroni

Tarimo, Probate and Administration
 In the absence of any prescribed
time for filing an application for
citation in Cap. 445 (352), resort
should be had to Part III of the First
schedule to the Law of Limitation
Act, which provides for a limitation
period of 60 days in respect of
other written laws for which no
period of limitation is not provided.
The Court held that a lapse of one
year could not save the pleadings
for being time barred.
 Where a party has dully applied for
the issue of citation to the
caveator, but the Registrar omits
to issue citation to the caveator as
required by rule 82(3) of the
Probate rules, the omission would
derail the rest of the trial and as
such the respondent would fail to
enter an appearance which have
rendered the matter contentious
and thus bring it within the ambit
of section 59(3) of cap. 445
 Under section 59 (3) of the Probate
and Administration of Estates Act,
Cap 352 once a caveator enters
appearance, the Court shall
proceed with the petition in
accordance with paragraph (b)of
section 52 whereby “the
proceedings shall take, as nearly
as may be the form of a suit in
which the petitioner for the grant
shall be the plaintiff, and any
person who appears to oppose the
Issue: whether the hearing of a
caveat shall proceed in the same
case file or the matter should be
heard in a separate case file.

In Re Ramadhani Mohamed
Kalingonji (dcd) and Kalingonji
Ramadhani Kalingonji (Petitioner),
Probate And Administration Cause
No. 1 of 2020 (HCT)(Tabora)
(unreported) Bahati J. (Ruling dated
15/12/2020)
“Having considered the above-cited
provisions of law, this case seems to be
controversial. I am of the considered view
that there is no need for opening a
separate file. That is, the same file
should be retained but the
subsequent proceedings therefrom
should proceed in a form that is as
nearly as may be the form of a suit.
The import of the cited provision of the
law is not to turn the whole matter into a
suit which commences with the filing of
pleadings, plaint, the written statement of
• See Professor (Mrs) Esther Mwaikambo
v. Davis J. Mwaikambo & 4 Others, Civil
appeal No. 52 of 1997 (CAT)(DSM)
(unreported).

• In an application for revocation of a

grant pendent lite, the trial Judge
proceeded to determine application for
grant of letters of administration, where
in fact there was a caveat and
application for citation to the caveators.
The Registrar had not issued a citation
to the caveator. Proceedings a nullified.
 Revenanth Eliawory Meena vs
Albert Eliawory Meena and
another, Civil Revision No. 1 of
2017, Court of Appeal of Tanzania
at Arusha (unreported), at page
18:

 “It is worthy pointing out that, the

stages as set out by the law in
rule 82 of the Probate Rules were
made with a purpose and as such,
compliance is mandatory and
 RESEALING OF GRANT

 The law in Tanzania allows

resealing of grant of probate
or letters of administration
in respect of the estate of a
deceased person ranted by a
court of probate in any
commonwealth country
[section 95 of Cap. 352].
Procedures in Resealing of
Grant
Under section 95 of Cap. 352
R.E. 2002:
 Where a court of probate in
any part of the
Commonwealth, has, either
before or after the passing
of this Act, granted
probate or letters of
 …the probate or letters so
granted may, on being
produced to, and a copy
thereof deposited with the
High Court, be sealed with
the seal of that court, and
thereupon shall be of the like
force and effect, and have
the same operation in
Tanzania as if granted by
 Resealing therefore is
the process by which
a probate or letters of
administration granted
by a court in any
Commonwealth
country is sealed with
the seal of the High
 Conditions precedent – [s.96 of
Cap. 352]
 The High Court shall, before sealing
a probate or letters of
administration under this Part, be
satisfied in the case of letters of
administration, that security has
been given in a sum sufficient in
amount to cover the property, if
any, in Tanzania to which the letters
of administration relate, and may,
in any case, require such
 Dealing with missing Executors
 Executor’s legal duty: to pay all the
debts of the deceased and
distribute the estate according to
the terms of the Will.

 If no backup executor was selected

by the deceased person, the court
will appoint someone who is
appropriate. Usually, this is another
close relative of the deceased. The
appointed person will be called a
What happens when an executor is
also named in the Will as a
beneficiary.

 If a claim is brought then that

person will have two hats to
wear – his/her neutral executor
hat and his/her beneficiary hat.

 Only in that person’s capacity as a

beneficiary that person can be
entitled to defend any claims that
Executor’s conflict of interest: Heath
v Heath case
 Timothy Heath was an executor and
beneficiary of his late mother’s
estate, Rachel Heath. In her last
will Rachel left her substantial
estate to her 3 sons equally.

 Tim brought a claim under the

Inheritance Act and said he
deserved more because he had
looked after his mum for many
 The brothers were
successful and an
independent solicitor was
appointed. Although this
decision was unusual, the
Court thought there was a
conflict of interest because
Tim was responsible for
administering an estate in
accordance with his late
Determining the Validity of a
Will

 If someone is challenging
the validity of a will then
he/she may apply for a
Caveat to be placed on the
estate which will prevent
the applicant from taking
out a Grant of Probate if he
 “Formal validity” of a will
is determined on the basis
of the rules under which it
was made, namely:
i. Customary law
ii. Islamic law
iii. Indian Succession Act, 1865
iv. The Probate and
Administration of Estates
 Wills of members of tribe
under Cap. 352 – by virtue of
order or direction under part IX
 Section 89(1)(a)(i) “disposition
recognized as valid by such
customary law;”
 (b) Disposition made in
accordance with the provisions
of the Indian Succession Act,
1865 relating to wills;
 (c) Disposition recognized as
valid by Islamic law
 Section 89(2): declaration of
validity by court
 Section 89(3): original of will to
be preserved by court, copy to
be given to administrator of
the estate
 Section 89(4): disposition of
oral will to be reduced to
writing, copy to administrator
Part IX: Estates
Administered in
Accordance with
Customary law, Custom
and Islamic Law
S.92(1): Application of the
act to PC subject to:
(a) Gazetted ministerial
order
i. Validity of a Will under
Customary Law
 Under G.N. No. 436/1963 – a
will can be oral or written.
 If oral will – it must be
witnessed by fur witnesses;
two clan members and two
non-clan members
 See Deusdedit Kashanga v. Bi.
Baite Rwabigene (1967) HCD
Written will –
 Must be witnessed by
witnesses who know how to
read and write – item 16 of GN
436/63.

 If testator know how to read

and write, two witnesses are
required, one from the clan
members, and one from non
 See Abdul sadiki v. Wilfred
Rutakunikwa (1988) TLR 167 –
on rules 19 and 21 of GN.
436/63 – held that testator was
illiterate, will not properly
attested.
 A will must be written in
permanent ink and not pencil –
Item 17, preferably printed or
typed.
 The date of the will must be
Impediments to inheritance
under customary law

 See Item 31 – serious reasons to

disinherit.
 See Paulo Ferdinand v. Frugence
Bigutu (1967) HCD 182 – testator
to give reasons. Disinheritance
justified.
 See Bigwomunda Mulaula vs
Bahanda Rwojo (1967) HCD 71 –
ii. Validity of a Will under
Islamic law (wasiyyah)
 See Salma Moshi Athumani v.
Aisha Kimolo Probate and
Administration Cause No.37 of
2007, HCT, District registry at
Dar es Salaam (unreported).
 See Said Seleman Masuka v
Anwar Z. Mohame, Civil Appeal
No.5 of 1997 (CAT)(DSM)
Conditions
 Testator must be adult Moslem.
 Make the will with his free will.
 Can be Oral – See Ali Mohamed
Rashid v. Hamisi Said Alawi [1959]
EA 877 – on the 3 conditions to be
met:
 (i) Plead terms or effect of will
with precision
 (ii) Proof
 (iii) Promptness
 Written Will
 On oral will (nuncupative
will) see Mohamed Thabet
Ali Maktari v Rageh
Mohamed Saleh Maktari and
Others [1966] EA 35 – based
on Quran Verse106 – oral will
must be proclaimed by
testator in presence of just
(adil) adult male Moslems
from the testator’s relations.
 See Administrator
General Zanzibar v.
Nassor Bin Fazil Bin
Nassor & Others [1957]
EA 159 – it is immaterial
whether or not a written
will is signed by the
testator or formally
attested. It suffices if
 Witnesses (oral will) – Asha
Shemzigwa v. Halima A.
Shekigenda [1998] TLR 258 –
whether there are special
formalities required in making a
will under Islamic law. Mwaikasu
J (ahtw) cited Fais Badrudin
Tyabji’s book “Principles of
Muhamadan Law in British India
held that the rules of Islamic
law are immutable and they
Asha Shemzigwa v. Halima A.
Shekigenda
The appellant challenged her
deceased’s husband’s oral will, made
by the deceased in his last breath
before his eldest son, Rajabu
Shekigenda (RS) – that the disputed
land should be given to and inherited
by the deceased’s daughter
(respondent), born out of wedlock;
that RS should pay dowry for the
other son, Rajabu Ally Shekigenda –
 Bequest is limited to only
1/3 of the deceased’s
property – this is based on a
Prophetic Hadith reported
by Saad bin Abi Waqqaas
[See Mayanja, S.J, Islamic
law of Succession: A
Practical Guide, University
College Printing Press,
Chukwani, Zanzibar, 2012,
 Waziri Mohamed Choka v.
Abas Choka, Civil Appeal
No.51 of 1999 (CAT)(DSM)
(unreported) – testamentary
disposition may not exceed
1/3 of the testator’s estate,
irrespective of whether the
disposition is to the heir
recognized under Islamic
law or a stranger.
 No bequest to a legal heir,
unless by consent of the
other heirs – See Re The
Estate of the Late Suleiman
Kusundwa [1965] EA 247

 A Moslem may bequeath his

or properties to a stranger –
See Tatu Abdallah v Waziri
Statutory Exceptions
 Section 88(1)(a) of Cap.352
R.E. 2002: “deceased’s written
or oral declarations or manner
of life’; and Section 88(1)(b) –
estate of a “Swahili” – not
bound to strictly apply Islamic
law. Customary law may apply.

 Renunciation or
excommunication from religion
 A Moslem who does not
want his/her estate to be
administered according to
Islamic principles should
expressly state so in the
will – see Naima Ibrahim
v. Isaya Tsakiris Civil
Appeal No. 119 of 2009
(CAT)(DSM) (unreported)
iii. Validity of a Will under the
Indian Succession Act, 1865

 Formalities for a valid will are

prescribed in s. 50 of the Act
(similar to section 9 of the Wills
Act, 1837-UK):
 A Will has to be in writing;
 Requires the signature of the
testator; and attestation by two
or more witnesses.
Joint Will
 Where two or more people
use the same instrument to
dispose of their assets after
death and such instrument
must be signed by each
person whose assets it is to
govern.


 See Re the Estate of the Late Prof.
Hubert Clemence Mwombeki
Kairuki, Probate and Administration
Cause No.4 of 2005 (HCT)(DSM)
(unreported).
 The deceased had two wills, one his
own will and the second joint will
between himself and his wife.
 Application for Probate was denied
on ground that the photocopy of
the annexed will was defective; and
even if validly executed, it was bad
Problematic and contradictory
preambular statements:
 “I hereby revoke all former wills an
codicils made by me and declare
that this is my last will made this
29th day of December 1998.”

 “I declare this to be the

SUPPLEMENTARY WILL. This Will is
supplementary because, my wife,
…. And myself, …. Have a JOINT
WILL. It’s that joint will which
 His own WILL was made on
29 November, 1988 and it
th

was titled
“SUPPLEMNTARY WILL
(CODICIL).” The word
codicil was handwritten and
not typewritten like the resr
of the will.

 Issue: Whether the former

 The Doctrine of Dependant
Relative Revocation
 By the statement “…It’s that
joint will which matters
more than anything else”,
the testator intended the Joint
Will to prevail over his own Will.

 The Petitioner should have been

allowed to apply to probate the
 Legal practitioners be
advised:

 If there is a Last Will and

Testament which has already
been dully executed and
safely stored, physical
destruction of any earlier
wills should be performed to
avoid such future confusion.
A will becomes effective after
the death of the testator
(posthumous)

See Constantin Hamanya v. Elias

Kayoza (1968) HCD 67 – the
Plaintiff was successor in interest by
bequeath, to a shamba formerly
owned by an old lady. Before her
death, a descendant of the lady had
incurred a debt to the first
defendant, which he had honoured
 The lady learned of this
arrangement, and gave
her verbal approval. After
her death, the plaintiff
sued both defendants in
the Primary court in
Bukoba district, for the
value of the coffee
removed from the
 Mustafa J. (as he then was)
held;

 “Plaintiff was not the owner

of the shamba until after the
lady’s death, and therefore
has no right to the value of
coffee removed from it
during her life-time…Plaintiff
would be entitled to
Effect of marriage and
divorce on inheritance
 Marriage of the testator
automatically revokes any
will or codicil made prior to
the marriage [Musyoka, W.
M., Law of Succession,
LawAfrica, Nairobi (2010)
p.74
 Divorce does not ipso facto
RE: BIRD DECEASED [1970] E.A. 289,
PLATT, J.

The testator left all his property to his "wife

Margaret Bird." The Will also provided for
the devolution of the estate if the wife did
not survive the testator. The testator
divorced his wife. Later she remarried and
became known as Margaret Fox. The
testator had made one alternation in the
Will due to the death of his mother but the
clause bequething all his property to "my
wife Magaret Bird" was not altered.
HELD:
1. Divorce does not ipso
facto revoke a Will.

2. As the applicant was the

person referred to in the
Will as Margret Bird she was
entitled to the testator's
property.
 Under the common
law, the will of a
woman was revoked
when she married,
the rationale being
that a women lost
testamentary
 In contrast, revocation of
a man’s will was tied to
common law rules that
presumed an intention to
revoke a will in certain
circumstances.

 Marriage followed by the

birth of an heir was one
 In 1833, the report which
formed the basis of the
England Wills Act of 1837
recommended that the
presumption of an
intention to revoke should
be abolished in all
circumstances.
 See The Fourth Report Made to His Majesty
by The Commissioners Appointed to Inquire
 The England Act abolished
the presumption of an intent
to revoke in all
circumstances apart from
marriage.

 Marriage by the testator

revoked a will except when
the will was made in
contemplation of marriage
 The England Act did not
mention divorce. It is
probable that the effect of
divorce on wills was not an
issue that was considered.

 Therefore, divorce did not

revoke a will and the issue
of the impact of divorce on
wills was only considered
Some other procedural
matters
 Deposit of All Original Wills with
Registry of High Court [s. 69 of
Cap. 352]

 Conclusiveness of Probate and

Letters of Administration [s. 70
of Cap. 352]

 Grantee alone to act as

Revoking or Annulling Grant
of Probate and Letters of
Administration

 Grounds - [s.49(1)(a) – (e)

of Cap. 352

 Surrender of Revoked
Grants [s.51 of Cap. 352]
* Challenging the Validity of a
Will
Gibson Kabumbire v Rose Nestory
Kabumbire, Probate Appeal No.
12 of 2020 (HCT)(Mwanza)
(unreported)(F.K. Manyanda J.)
(13/08/2021).

Among the grounds of appeal was

a challenge to the validity of the
will.
The relevant factual background
was that the deceased
The Rose Nestory Kabumbire
went through a civil marriage
with the Late Nestory
Rwechungura in 1978 and latter
celebrated a Christian marriage
ceremony in 1996. Apparently it
seems that then deceased left a
will in which he bequeathed
among others a registered landed
property located at Plot No. 50
Block "W", Capir Point, Mwanza
Whether section 18(l)(a)(i) of the
Magistrates' Courts Act, [Cap. 11
R. E. 2019] ousts the jurisdiction
of primary courts in probate
matters involving registered
landed properties [Christina
Alexander Ntonge vs. Limi
Mbogo, PC Civil Appeal No. 11 of
2017 (unreported) (Munisi, J. as
she then was cited).
Whether the trial court had
jurisdiction to entertain the
Probate Cause where the
deceased died professing
Christianity.

Wherher the "will" was valid for

listing properties which did not
belong to the testator.
 (i) Failure of the will to be
witnessed by the wife which
violates Rules 5 and 6 of the Third
Schedule to the Local Customary
Law Declaration Order, GN No.
4 of 1963.

 The case of Hyasintha Kokujuka

Felix Kamugisha versus
Deusdedith Kamugisha,
Probate Appeal No. 04 of 2018
(unreported) was cited where the
 (ii) The will was not
witnessed in accordance
with the law as provided
under Rule 19 of the Third
Schedule to the Local
Customary Law
Declaration Order, GN
No. 4? of 1963 which
require a "will" to be
witnessed by two
 (iii) Some lawful heirs were
excluded from inheritance in
the "will" with no reasons and
were not given opportunity to
be heard.

 This violated Rules 35 to 39 of

the Third Schedule to the
Local Customary Law
Declaration Order, GN No. 4
of 1963. He again relied on
Chief Justice order, Government
Notice No. 320 of 1964 conferred
jurisdiction on primary courts in
matters of administration of estates
regardless of whether the subject-
matter is land registered under the
Land Registration Ordinance,
provided the applicable law is
customary or Islamic law, other than
matters falling under the Marriage,
Divorce and Succession (Non-
Christian Asiatics) Ordinance.
Section 19(l)(c) of the MCA did
not specify the particulars
relating to the administration of
estates, then, it means the said
primary courts have jurisdiction
to entertain probate causes
concerning registered land.
 Dickson Jimmy Kombe
(Administrator of the
Estate of the late
JimmyJacob Kombe) vs.
Ruwaichi Jimmy Kombe,
PC Civil Appeal No. 14 of
2019 (unreported)
(Mewenempazi j).
“While section 15(l)(c) of the Magistrates
Courts Act 1963 (now s. 19 of the
Magistrates' Courts Act 1984) did not
specify the particulars relating to the
administration of estates, the order of
the Chief Justice published as
Government Notice No. 320 of 1964
conferred jurisdiction on primary courts in
matters of administration of estates
regardless of whether the subject-matter
is land registered under the Land
Registration Ordinance, provided the
applicable law is customary or Islamic
“….merely being a Christian does
notmean one has been detached from his
or her customary life, there must be
evidence to support the same. There is a
distinction between Christians who live
and practice normal customary life and
those who have professed Christian
religion and either by a declaration or by
his acts or manner of life is evident that
they have professed as such and
intended that their estate will be
administered under the applicable law to
Christians. It is the mode of life which
Benson Benjamin Mengi and 3
Others vs. Abdiel Reginald Mengi
and Another, Probate and
Administration Cause No. 39 of
2019 (unreported)(Mlyambina J)

Whether there is evidence

establishing that the Late Nestory
Rwechungura Kabumbile
abandoned his customary
lifestyle.
Apart from re-celebrating
marriage with the Respondent in
Christian rituals after a prior civil
marriage, the Late Nestory
Rwechungura Kabumbile lived a
normal life of his kinsmen, and
erected a house at Bukoba where
he had intended to be buried
under normal Haya customs only
that he changed his mind after
the Appellant demolished the
“…in the absence of
evidence that the deceased
had abandoned the
customary way of life in
favour of Christian way of
life, the primary court had
jurisdiction to entertain the
matter because the
applicable law is customary
Validity of the "will" three defects:
 Firstly, it was not witnessed by the
wife;
 Secondly, it was not witnessed by
two witnesses one of them must
be a relative; and
 Thirdly, some lawful heirs were
excluded from inheritance in the
"will" with no reasons and were
not given opportunity to be heard.
 THERE WAS NO “WILL” ON THE
COURT RECORD!!
Validity of a Will
 The challenge of the validity of
a Will is done through objection
which is to be by way of a
caveat lodged in the court in
which the Will is sought to be
probated.

 A Caveat has a life limit, as it

will normally remain in place for
four (4) months, unless
extended by application. But
 If the challenge is
successful, the Will
is revoked and the
estate will devolve
according to the
applicable rules on
 See Salma Moshi Athumani vs
Asha Kimolo Probate
Administration Cause No.37 of
2007 (HCT)(DSM)(unreported)
(Judgment dated 12/05/2010).

 See Probate and Administration

Cause No.39 of 2019, Benson
Benjamin Mengi & 3 Ors vs. Abdiel
Reginald Mengi & 2 Ors (HCT)
(DSM)(unreported) Judgment
dated 18/05/2021(This case
Requirements to the formation of
a valid will:
i) Testamentary Intent (animus
testandi)
ii) Testamentary Capacity (per
Cockburn LCJ test in Banks
v. Goodfellow case)
iii) Knowledge and approval of
the contents off the will.
iv) Not induced by fraud, duress,
or undue influence or
Testamentary Intent
“I, Musa, do hereby declare this
instrument to be my Last Will and
Testament.”

Testamentary capacity: Four

pronged test – the testator must:
1. Know the nature of the act (of
making a will)
2. Know the “natural objects of his
bounty”
3. Know the nature and extent of his
Testamentary capacity:
- The testator must be of “sound mind”
and capable of executing a valid will
(competency)
- Minimum age requirements – age of
minority
- Signature – how and where to affix it –
in order to be valid it has to be done as
a volitional act by the testator.
- Witnesses – in addition to the testator
signing the will, it also has to be sined
by witnesses -competent, mature and
of sufficient mental capacity; not an
 Testamentary
capacity is
decided by
reference to the
classic formulation
of the test in Banks
v. Goodfellow
 Sir Alexander Cockburn CJ in Banks
v Goodfellow (1870) 5 QB 549,
at 565 stated thus:
 “It is essential to the exercise of
(testamentary) power that a
testator shall understand the
nature of the act and its effects;
shall understand the extent of
the property of which he is
disposing; shall be able to
comprehend and appreciate the
 “…and with a view to the latter
object, that no disorder of the
mind shall poison his
affections, pervert his sense of
right, or prevent the exercise
of his natural faculties - and
that no insane delusions shall
influence his will in disposing
of his property and bring about
a disposal of it which, if the
 As per the decision in Banks v
Goodfellow (1870), to prove a
testator had testamentary capacity
the Court must be satisfied that
the testator:
 (a) understood the effect of
making a will;
 (b) was aware of the general
nature and value of the estate;
 (c) was aware of those who
would have a natural claim to the
estate; and
Absence of fraud and undue
influence

Fraud involves:
- False statements of material
facts,
- Known to be false by the party,
- Made with the intention of
deceiving the testator,
- Who is actually deceived, and
- That cause the testator to act
Absence of mistakes
 If a testator signs a document
purporting to be his will but it is
the wrong document; or

 If a testator omits some

provision in his will it cannot be
added postmortem (after
death), because a will cannot
be reformed or revised once the
testator has died.
 Conversely, a provision
included in a will by
mistake may be
omitted by the probate
court when the will is
admitted in probate, if
the mistaken inclusion
is separable from the
 Jurisprudence on validity
of a will

 As a rule of law, statutory

or judicial, that accepts the
validity of a fact until it is
rebutted, once accepted,
the burden shifts to the
other party to introduce
sufficient evidence to
 Following a person’s death,
there may be a dispute
about whether that
person’s last will is valid.
 There are several grounds
for challenging the validity
of a will or a lifetime gift,
two of which were recently
considered in the case of
Tociapski v Tociapski: Ch.D 20 Mar 2013
[2013] EWHC 1770 (Ch), [2013] WTLR
1821
https://
www.bailii.org/ew/cases/EWHC/Ch/2013/1
770.html

Making a Will
© Crown Copyright 2017
https://
s3-eu-west-2.amazonaws.com/lawcom-pr
od-storage-11jsxou24uy7q/uploads/2017/
07/Making-a-will-consultation.pdf
 The Parker v Felgate
exception provides that a
will is valid if the will-
maker had testamentary
capacity when giving
instructions for the will,
even if he or she lacked
capacity at the time of
signing.
 The Facts in Tociapski v
Tociapski

The deceased, Igor Tociapski,

died on 12 March 2010
leaving a will dated 13 May
2009 under which he
appointed his son, Boris, as
sole executor, and as sole
beneficiary of his estate.
 Mr. Tociapski had executed a
previous will on 20 June 2007
under which Boris had also
been appointed sole executor.
The key difference between the
two wills, however, was that
under the 2007 will the
deceased left his estate to be
divided equally between his two
sons, Boris and Paul. Paul was
not included as a beneficiary
 Paul clamed that the 2009
will was invalid on the
grounds that (1) Mr.
Tociapski did not know or
approve its contents at the
time that he executed it
and (2) when he executed it
he was subject to undue
influence exerted by the
defendant (Boris)
 Paul claimed that
the 2009 will should
therefore be set
aside and the estate
administered in
accordance with the
earlier 2007 will.
 Paul claimed additionally that Mr.
Tociapski’s transfer of property
known as Hillcrest Cottage to Boris
on 12 February 2010 (only a month
before he died) should also be set
aside on the grounds that when he
made the transfer he was subject to
undue influence by Boris. Paul also
claimed that this was a case of non
est factum due to Mr. Tociapski’s
lack of capacity at the time that he
made the transfer.
 The expert evidence of an old
age psychiatrist (which was
accepted by the court) was that
whilst it could not be concluded
that Mr. Tociapski lacked the
requisite capacity to execute
the 2009 will, his capacity was
impaired and this impacted
adversely on his ability to have
known and approved the
contents of his will.
 Lack of knowledge and
approval of the contents of will
– the original instructions for the
2009 will were given to solicitors by
Boris (as opposed to by Mr.
Tociapski) who was active and
instrumental in its preparation, and
the 2009 will was clearly in his
interests and some other factors
which were sufficient to excite te
vigilance and suspicion of the court
and therefore a very high degree of
 Undue influence
 The principles surrounding undue
influence claims in the context of
lifetime gifts were laid down in the case
of Royal bank of Scotland v Etridge
(N0.2)[2001[ UKHL 44, where the House
of Lords held that there were two forms
of undue influence: firstly: ‘improper
pressure or coercion, such as unlawful
threats” and secondly, a transaction
which “arises out of a relationship
between two persons, where one has
acquired over the other a measure of
 The Non est factum doctrine
 A successful plea of non est factum
enables a party to avoid an agreement
if that party was permanently or
temporarily unable, through no fault of
his own, to have any real
understanding of the meaning of
agreement irrespective of whether or
not this inability arises from any
incapacity.
 Saunders v Anglia Building Society
[1971] AC 1004
 Hackett v Crown Prosecution Service
 On Mental Capacity
Ramnik Vaghella v Mahendra
Vaghella [2000] TLR 227 (CA) –
Coram; Mfalila, samatta and
Lugakingira, JJJA.
 The parties to the appeal were uterine
brothers, the appellant being the elder
brother. The High court in Arusha had
granted the respondent probate of the
will of their late mother who died in
November 1992. In February 1993, the
respondent petitioned for probate
annexing the deceased’s will dated 18
 The appellant challenged
the petition alleging among
other things, that the will
was invalid as it was made
at a time the deceased was
so physically and mentally
incapacitated that she could
not understand the contents
thereof. The trial judge
found the will valid and
O appeal the issue turned on the
validity of the will, whereby the
court held that;

“…It is settled that in order for a

will to be legally enforceable it
has to be valid, and its validity in
turn derives from the capacity of
the testator and the
circumstances attending in its
making. A lunatic cannot make a
 Construction of wills

In Marley v Rawlings [2014] UKSC

2 - the correct approach to
interpretation of wills was set out
as mirroring that of the
interpretation of contracts. The
court will set out to find the
intention of the testator by
identifying the meaning of the
words used in light of the
 the ordinary meaning
 the purpose of the document,
considering it as a whole
 any other provisions of the
document
 the facts known or assumed by
the relevant parties at the time
of execution
 common sense
All of the above boil down to
 PRESUMPTIONS
Ordinary meaning

 This is a literal approach to

interpretation. It is presumed that the
words used in a will bear their ordinary
and natural meaning, unless there is an
evident contrary intention.

 Where a word has multiple ordinary

meanings, as is common in English, the
courts will consider the will as a whole
as well as any available extrinsic
Technical meanings

 Where a will includes technical or legal

language there is a rebuttable
presumption that the word or phrase
has been used properly and the
testator intended it to take its technical
meaning.

 If a professional drafter misuses

technical language and the result is
that the will does not fulfil the
testator’s intention, then the wording
Presumption against intestacy

 There is a presumption that

the testator did not intend to
die wholly or partly
intestate, so when the
meaning of a will is in doubt
it should be constructed in a
way that does not lead to an
intestacy, insofar as it is
Dealing with the same
words in different parts of
the will
 In English the meaning of
a word obviously changes
depending on the context
it is used in, so it is
possible for the same
word used throughout the
 Problems arise where a word
used is clear at one point, but
ambiguous elsewhere in the
will.

 In these cases the meaning of

the word at the ambiguous part
will be treated as holding the
same meaning as at the place
where it was used
unambiguously, as long as it
REFERENCES TO BENEFICIARIES

 There is presumption of when a

will speaks from, when it comes
to defining beneficiaries.

 The will speaks from the date

of its execution unless there is
any contrary intention.
 In Peasley v Haileybury and
ISC [2001] WTLR 1356 a will
gave the testator’s great-
niece “and her husband” a
right to occupy a property.

 It was held that the husband

in question was the husband
at the time the will was
executed.
 If a reference is made to a
beneficiary by description
and the will is later
republished by the
execution of a later codicil,
then the beneficiary will be
the person who fulfilled the
description at the time the
codicil was executed and
References to Children

 The term “children” could potentially

include the legitimate children of the
testator, illegitimate children, children
born as a result of fertility treatment or
surrogacy arrangements, adopted
children, and children conceived before
the testator’s death but born
afterwards.
 When drafting it is possible to define
exactly what any references to children
will mean so that the testator’s
REFERENCES TO ASSETS

 When referring to property the will

speaks from death. A gift in a will
of ‘all my motor vehicles’ would
therefore include any vehicles the
testator owned at the time the will
was executed, and all after-
acquired vehicles that they own at
their death.
 This means that the subject of a
specific legacy is susceptible to
References to land
 A gift in a will of “land” naturally
includes any property or buildings
built upon it.

 It also includes any incorporeal

hereditaments, for example rental
profits, titles associated with the
land, and profits à prendre.

 A gift of a “house” would include

the garden and outbuildings
Powers and Duties of Administrators and
Executors
• Prepare Inventory for inspection
• Within 4 months – If in Primary Court
• Within 6 months – If in DDC or High Court
• Submit Statement of Accounts within one
year
• Pay funeral expenses and debts first
• Then distribute residue of estate to heirs

• The case of the bonafide purchaser for value

• Breach of trust of confidence
• Criminal liability
POWERS AND DUTIES OF
EXECUTORS AND
ADMINISTRATORS- PART XI of
CAP. 352

99. Character and property

of executor or administrator
as such – deceased’s legal
representative for all
purposes, and all the
 Exception to the general rule
on vesting of deceased’s
property in the administrator or
executor:

 (a) any property of a deceased

person which would otherwise
pass by survivorship to some
other person; or

 (b) any property vested in a

 101. Power to dispose of
property, etc [bonafide
purchaser for value of
inheritance property]

 To dispose of movable
property, as he thinks fit, and
the powers of sale, mortgage,
leasing of and otherwise in
relation to immovable property
Section 107. Inventory and accounts by
executor or administrator

 Within six months from the grant of

probate or letters of administration, or
within such further time as the court which
granted the probate or letters may from time
to time appoint or require:

 Exhibit in that court an inventory

containing;
 a full and true estimate of all the property
in possession, and all the credits, and also

 all the debts owing by any person to which

 Within one year from the grant
or within such further time as the
court may from time to time
appoint:

 Exhibit an account of the estate,

showing:

 the assets which have come to

his hands and

 in the manner in which they

(2) If the administration is not completed
within one year from the grant of probate
or letters of administration, the executor
or administrator shall at intervals of not
more than six months, or within such
further time as the court which granted
the probate or letters of administration
may from time to time appoint or require,
and on the completion of the
administration, exhibit in the like
manner an account showing the
assets which have come into his
hands and the manner in which they
(3) If an executor or
administrator, on being required
by the court to exhibit an
inventory or account under this
section, omits to comply with the
requisition within the time limited
in the requisition for compliance
therewith, he commits an offence
and on conviction is liable to a
fine not exceeding two
thousand shillings or to
 The Written Laws (Miscellaneous
Amendments) Act, 2020, No.1 of 2020,
which was assented to by the President
on 14th February, 2020, in its PART XIII
amended THE PROBATE AND
ADMINISTRATION OF ESTATES ACT, Cap.
352 in section 107 by providing as
follows:
 “44. The principal Act is amended in
section 107(3), by deleting the words
“to a fine not exceeding two thousand
shillings or to imprisonment for a term
not exceeding six months” and
(4) If an executor or administrator
exhibits an intentionally false
inventory or account under this section
he commits an offence and on conviction
is liable to imprisonment for a term not
exceeding seven years.

(5) Any beneficiary under a will, person

entitled to a share under an intestacy or
unsatisfied creditor shall be entitled to
inspect the inventory and accounts
of an executor or administrator.
108. General duties of administration
(1) The executor or administrator shall, with
reasonable diligence, collect the property
of the deceased and the debts that were
due to him, pay the debts of the deceased
and the debts and costs of administration,
and distribute the estate to the persons or for
the purposes entitled to the same or to trustees
for such persons or for the purposes entitled to
the same or to trustees for such persons or
purposes or in accordance with the provisions
of this Act, as the case may be.

(2) Subject to the provisions of this Act, an

executor or administrator is not bound to
The Powers and Duties of
Administrators and Executors – under
GN 49/1971
 To file inventory and statement of
accounts of the assets and
liabilities of the deceased’s estate
– See Rule 10 of GN No.49/1971.
 To pay the costs of the funeral and
debts of the deceased
 To distribute the residual of the
estate to the legal heirs.
 To close the probate case file.
Powers and Duties of Administrators
and Executors under Cap. 325
General duties of administration
under s.108(1)
- Collect the property of the
deceased and the debts that were
due to him (see s.109(1)(a) to (c);
- Pay the debts of the deceased and
the dents ad costs of
administration; and
- Distribute the estate to the
persons or for the purposes
 An executor or
administrator is liable
to make good the loss
or damage
occasioned through
his or her misapplying
the estate of the
deceased or subject it
 Legal Conundrums and Quagmire

 “Child marriages” and “Child

widows”
A child is any person below the
age of 18 years – CRC; ACRWC; Law
of the Child Act, 2009, Cap.13 R.E.
2019

 Rebeca Z. Gyumi v. Attorney

General, Miscellaneous Civil Case
No.5 of 2016, (High Court of
“Legitimate” and
“Illegitimate” (bastard)
kids

 Judith Patrick Kyamba v.

Tunsume Mwimbe and 3
Others, Probate and
Administration Cause No. 50
of 2016 (HCT) (DSM)
Mlyambina J. (unreported)
“Children born in wedlock’ and
“Children born out of wedlock”
distinction

 Elizabeth Mohamed v. Adolph John

Magesa Administration Appeal
No.14 of 2011(HCT)(Mwanza)
(unreported) - reported in [2016]
TLS 114 – “children born out of
wedlock” can inherit from their
deceased father’s estate in view
of section 3, 5(2), section 9 and
 Entitlement to inheritance
rights
 Marital relationship - the case of
presumed marriages under s.160 of
LMA, Cap. 29 R.E. 2019.

 Blood relationship (consanguinity)

• The case of children born out of

wedlock.
Whether Matrimonial Property Can
Be Part Of Inheritance

Theofrida Mhagama vs.

Njengafibili Mponjoli
Mwaikugile, As the legal
representative of Jackson Reuben
Mwaikinda, CIVIL APPEAL NO. 160
OF 2020 (CAT)(Coram: MUGASHA.
J.A.. KWARIKO, J.A.. And KENTE,
J.A. (Judgement dated 5
 The Appellant, widow of Jackson
Reuben Mwaikinda (deceased), died
on 9th February, 2015. The
couple did not have children
together. But the deceased had
three children of his own.
Deceased had prepared a Will
bequeathing his properties to
his three heirs. Appointed
Respondent executor of the
Will.
 The respondent probated the will
 The Respondent went to execute
seeking eviction of the widow
from the disputed house located
in Kunduchi Beach, DSM.
Appellant lodged Misc. Civil
Application No. 638 of 2018 at
High Court seeking for
interpretation of the Will of
the deceased; an order that the
respondent to file inventory as per
the order of the court; and order
the respondent to execute the Will
 At the trial court, Appellant
contended that the
deceased intended her
to be the caretaker of
the entire estate and that
the disputed house was
a matrimonial property
which was not intended to
be bequeathed to any other
and she ought to have been
 The trial court found that the Will
was clear that the disputed
house was bequeathed to
Reuben (dcd’s son), and the
appellant was to be a caretaker of
the deceased's properties within
two years after his burial following
which the heirs were to take charge
of whatever was bequeathed to
them.

 The trial court also found that the

• Whether the disputed
house located on Plot No.
625 and 626 Block L
Mbezi Beach was a
matrimonial property,
acquired during the
subsistence of the marriage
with the [Appellant] and
jointly owned as per the
Certificate of Practical
• According to the contents of the Will at
paragraphs 3 and 9, the appellant was
given permission to reside in the
disputed house for two years only
after the burial of the deceased.

• The appellant was given and she

acknowledged receipt of USD
34,400.00 being two years rent
from the tenant residing in the Ada
Estate House.

• The appellant is not mentioned as

 The deceased bequeathed all
the furniture to her (paragraph
5 of the Will) to be taken to
Makongo house where she desired
to reside after the expiry of two
years. Moreover, she was
bequeathed all moneys in the
deceased's bank accounts in
Dar es Salaam.

 Gabriel Nimrod Kurwiyila v.

Theresia Hassan Malongo, Civil
 “…the issue of the disputed
property being declared a
matrimonial property was
not among the reliefs
sought by the appellant.
However, even if that relief
was sought, it would have
been in a wrong forum
because such a matter is
ordinarily dealt with upon
 “It is our opinion that the appellant
had the opportunity to complain about
the Will, first, when it was read out by
the respondent to the family members,
herself inclusive after the burial of the
deceased. There is no evidence to
show that she seized that
opportunity to air her grievances
regarding the Will.
 Secondly, when the respondent
instituted Probate and Administration
Case No. 7 of 2016, the appellant
could have filed objection in a
 Now, since the appellant
failed to challenge the
Will in accordance with
the law when she had the
opportunity to do so, she
cannot be heard to
complain now because
neither the trial court
nor this Court is the
Division of matrimonial property
on death

 The concept of ‘matrimonial

property’ has its roots in the idea
that marriage is a joint venture
between the husband and the wife.

 Accordingly, they both have a

shared interest in all assets that
either or both of them generated
during the course of the marriage.
Inheritances and pre-
marriage assets
Non-matrimonial assets will
be those assets that were
received or created either
before or after the marriage,
or were “gratuitously received
within the partnership from an
external source [which] has
little to do with the endeavour
 Inheritances are slightly different,
in that they may be received
during the course of the
marriage (inheritance was one of
the assets argued over in the
recent Court of Appeal decision in
Mwaikugile’s case).

 Again, however, whether the

inheritance will be treated as non-
matrimonial will depend on the
circumstances, including the
Is Inherited property (money) Considered
Separate or Marital Property in Tanzania?

A Hypothetical case:

A woman has recently become the beneficiary

of a substantial monetary inheritance from her
Grandfather. Not long after the Grandfather
passed away and left the money to his
Granddaughter, her marital problems
intensified with her Husband, ultimately
resulting in the initiating of divorce
proceedings. As one could imagine, the
Granddaughter/Wife found herself highly
concerned that she could be forced to give up a
When is Inheritance Separate
Property?

 Inheritance is generally
considered to be separate (non-
marital) property in Tanzania
regardless of whether the
inheritance was received before or
during a marriage.

 Other types of property Tanzanian

Courts may consider to be
 This means that when a
spouse receives an
inheritance during the
course of his or her
marriage, that money is
assumed to remain the
personal property of the
recipient unless other
When is Inheritance Marital
Property?
 The following are two scenarios by
which inherited money can
become marital property:

 The most common scenario is

when the inherited asset is
commingled with other marital
assets.

 The second scenario in which a

 If a spouse mixes, or
commingles, his or her
inheritance with the
mutually shared marital
property so much so that the
Court has difficulty tracing
the inheritance’s origin, the
Court may determine that it
has lost its special status as
separate property and has
 For example, if a spouse
receives money as an
inheritance and then
deposits in the maritally
shared family checking
account that is used to pay
marital family expenses, the
Court may determine the
inheritance as marital
property subject to division
 The second scenario in which a non-
marital inheritance can become a
shared marital asset is through
transmutation.

 A transmutation can occur in a

postnuptial agreement or in other ways
that changes the character of the
spouses’ property from separate to
community/marital or vice versa, with
there being clear intent as to the change
of character of the marital property. An
example of an inheritance becoming a
 Class Activity
Effect of Marriage and Dissolution
of a Spousal Relationship on Wills
 The common law rule that
marriage automatically
revokes a will applies in
Tanzania. What are its
advantages and
disadvantages?
 Should the rule continue or be
General Conclusion
 Should Tanzania adopt a
Uniform Law of Succession and
should this be done?
 Should the Law of Marriage
Act, Cap.29 R.E. 2019 be
reformed and if yes in what
areas?

 Should Customary Laws – the

Local Customary Law Orders of
1963 be repealed or amended,
Reference Material
 Njenga, F.X: Law of Succession
in East Africa, Faculty of Law,
The University College of Dar
es Salaam 1966 (Mimeo)

 The Law Reform Commission of

Tanzania Report on the Law of
Succession http://
www.commonlii.org/tz/other/TZ
LRC/report/R1/1.pdf
 See the LOCAL
CUSTOMARY LAW
(DECLARATION) (NO.4)
ORDER, Government
Notice No. 436 of 1963
[Unofficial English version]
 https
://www.africanchildforum.
org/clr/Legislation%20Per
• Succession and Trusts in
Tanzania: Theory, Law and
Practice by NNN Nditi (Jr), 2nd
Edition, Juris Publishers Limited,
2020.

• Guiding Notes on Probate

and Administration of
Estates by Robert V.
Makaramba J (Rtd), First Edition,
INHERITANCE LAW IN TANZANIA:
THE IMPOVERISHMENT OF
WIDOWS AND DAUGHTERS
THE GEORGETOWN JOURNAL OF
GENDER AND THE LAW [Vol.
VII:599-662

https://
www.law.georgetown.edu/wp-cont
ent/uploads/2020/07/Inheritance-
Law-in-Tanzania-The-Impoverishm
Wills, Estates and Succession:
A Modern Legal Framework -
A Report prepared for the British
Columbia Law Institute by the
Members of the Succession Law
Reform Project, BCLI Report No.
45, June 2006
https://
www.bcli.org/sites/default/files/Wi
lls_Estates_and_Succession_Repo
rt.pdf
Wills and the Legal Effects of
Changed Circumstances
ALBERTA LAW REFORM INSTITUTE
EDMONTON, ALBERTA, Final
Report No. 98, August 2010
https://
www.alri.ualberta.ca/wp-content/
uploads/2020/05/fr098.pdf
NATIONAL COMMITTEE FOR
UNIFORM SUCCESSION LAWS
Intestacy

Report to the Standing

Committee of Attorneys
General (Australia)
https
://www.justice.tas.gov.au/__
data/assets/pdf_file/0015/821
 PART III

The Concept of Waqf in Islamic Law