LS 108

3O COHORT

PROBATE AND
ADMINISTRATION OF
ESTATES AND
TRUSTS
Jr. In Learning
© 2020
 TABLE OF CONTENTS
QUIZ 1 Finding the Meaning of different words in Probate
LECTURE 1: THE CONCEPT OF PROBATE & ADMINISTRATION OF ESTATE
TOPIC 2: ESTATE PLANNING
ASSIGNMENT ONE
TOPIC 3: TESTATE SUCCESSION
KEZIRAHABI’S CASE
MATERIALS FROM RITA
SAMPLE OF A WILL
REINFORCING TASK 1
TOPIC 4: INTESTATE SUCCESSION
TOPIC 5: JURISDICTION OF COURTS IN PROBATE AND ADMINISTRATION OF ESTATE
KIJAKAZI MBEGU & 5 OTHERS vs. RAMADHANI MBEGU [1999] TLR 178
TOPIC 6: NON – CONTENTIOUS PROCEEDINGS
REINFORCING TASK 2
TOPIC 7: CONTENTIOUS PROCEEDINGS
TOPIC 8 “A”: RENUNCIATION OF EXECUTORS & ADMINISTRATORS
TOPIC 8 “B”: CHALLENGING AN APPLICATION FOR PROBATE & ADMINISTRATION
TOPIC 9: ADMINISTRATION OF ESTATES
ASSIGNMENT TWO
REINFORCING TASK 3
TOPIC 10: SUCCESSION AT INTERNATIONAL LEVEL
ASSIGNMENT THREE
TOPIC 11: CONCEPT OF TRUST
READ: Hayton and Mitchell on the Law of Trusts and Equitable Remedies
Trusts Law by Moffat

TOPIC 12: WAKF PROPERTY

ASSIGNMENT FOUR
QUIZ Monday, 27 April 2020, 9:53 AM
Find the meaning, explanation and legal basis for each of the following terms or
phrases

Administration Bond Estate

Marking of Wills Residuary Legatee

Administrator Estate Planning

Non contentious Proceeding Residue

Administratix Executor

Oral Will Revocation of grant

Caveat Executrix

Pendente lite Seal of Probate

Caveator Intestacy

Petition for Letters of Administration Small Estate

Citation Intestate

Petition for Probate Testate

Probate Inventory

Codicil Testator

Receiver pending grant Legacy

Consent Wakf

Rectification of grant Legatee

Contentious proceeding Will

Renunciation Letters of Administration

District Delegate Living Will

Resealing
 PROBATE
AND
ADMINISTRATION
OF ESTATES
LS 108
 LECTURE 01

THE CONCEPT OF PROBATE

AND

ADMINISTRATION OF ESTATE
SYNOPSIS
General Overview-
Course Coverage
1. The concept of probate and other basic
terms
1.1. Regimes regulating probate and
administration of Estates
1.2.Laws applicable to probate matters
General Overview
1. “There is no Success without a successor (Success without a
Successor is a failure” (Peter Drucker)
2. “A successor without a succession plan is a defeated
succession”
3. “A Succession Plan, either by default or design, without Law is
a defeated plan”
Hence:
Law of Succession (Probate and administration of Estate
inclusive)- to govern the formal/legal take-over (succeeding to
the rights of another), management, distribution and or use of
one’s Estate (affairs) after his expiry.
Course/Module Coverage
1. The Concept of Probate and administration of estate (Legal regimes and
laws applicable)
2. Estate Planning (the concept and its applicability-intervivos and after
death of estate owner)
3. Types of succession(testate and intestate) and procedural aspects, Wills-
drafting and depositions, protection pending grant
4. Types of Probate and Administration proceedings-Contentious and Non-
Contentious - Objection proceedings, revocation of grant
5. Succession at international level-choice of law, testate and intestate
administration
6. Succession with foreign element at national level-resealing
7. Wakf Property-legal structure and its administration
8. The concept of Trusts-types and formation
1. The concept of Probate and other basic terms
a) The Concept of probate
“Probate” originates from the Latin word Probare which means to
probe, prove, or establish/inquire.
Generally, the concept can be understood or defined as both the
process and the end result of the said process. i.e.
As a process, the term probate is defined as a legal process or action of
proving before a competent judicial authority that a document offered
for official recognition and registration as the last Will and testament of
a deceased person is genuine and thus confirming a person named
therein as an executor of the said Will.
As the end result, it is defined under Section 2 of Cap.352 R.E 2002 as
“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 to the estate of the testator”.
The process takes place through ordinary court
proceedings whereby a part seeking grant of probate
adduces evidence through witnesses as to the validity of
the Will.
The proceedings can be either non-contentious or
contentious
Therefore, a probate, is a process of establishing and
confirming the Validity of a Will and the appointed
executor.
Thus, through a Court Order ( Grant of Probate) the
named executor is authorized to administer the
deceased’s estate in accordance to the instructions in the
will.
b) Some basic terms
i. Letters of Administration
ii. Will &Codicil
iii. Testate/cy & Intestate/cy
iv. Estate
v. Administrator/trix
vi. Executor/trix
ii) Letters of Administration:
Refers to Court Orders granting authority to a person to
administer decedent's estates where the testate or intestate
decedent did not appoint an executor.
Administration refers to the process of collection of assets,
payment of debts, and distribution to the beneficiaries of
property in the estate of a deceased person.
iii) Will and Testament &Codicil
A Will is “the legal declaration of the intentions of a testator with
respect to his property, which he desires to be carried into effect after
his death”.
Taken from the roman law which states thus “Voluntatis nostrae justa
sententia, de eo, quod quis post mortem suam vieri velit”
The term testament also refers to declaration of one’s wishes of how
his/her estates should be distributed and or managed upon death.
This term originally meant declaration in relation to personal property
as opposed to real property.
It can be Oral or Written provided that it must be witnessed.
A Codicil is means an instrument made in relation to a will, and
explaining, altering or adding to its dispositions; Simply an addendum
to the Will.
Always, the last Will prevails over the other Wills.
iii) Testator/Testatrix:
 Male /Female person that makes a Will.
iv) Administrator/trix/ Executor/trix:
The former terms denotes male and female persons respectively
appointed to administer deceased’s estates in the event of intestacy
death or where the appointed executor refuses or is unable to
administer the estate. The latter term means Male and female personal
representatives appointed by the testator orally or through a Will.
v) Testate and or Intestate:
 refers to the a situation whereby a person dies leaving a testament/will
and or without leaving the same.
v) Estate:
Under the law of succession, it refers to the real and personal property
that a person possesses at the time of death and that passes to the heirs
or testamentary beneficiaries (Black’s Law Dictionary- 8th Edn. P.1659).
1.1 The Legal regimes regulating Probate and Administration of
Estates in Tanzania

Four competing legal systems that governs administration of the

deceased’s estate namely:-
i. Statute law
ii. Islamic law
iii. Customary law
iv. Hindu Law

The connecting factors of these regimes are ethnicity, religious

affinity and or race of the deceased during his life time.
1.1.1 Statute law (The Indian Succession Act,1865)
Made applicable in Tanzania vide the JALA.
It applies to Christians and persons of European Origin.
Illegitimate children are excluded from inheriting their fathers’ estate,
but they may only inherit from the estate of their deceased mothers.
No distinction between male and female either share of inheritance
Provides for two types of intestacy- i.e.
a) Total Intestacy: (No Will at all, Will is defective e.g. not attested
according to the law; or Will becomes inoperative e.g. Legatee
predeceases the testator)
b) Partial intestacy: (Only where the beneficial interest is partly
disposed of)
Some basic rules of inheritance under statute law
a) S.27
“Where the intestate has left a widow, if he has also left
any lineal descendants, one-third (1/3)of his
property shall belong to his widow and the remaining two-
third(2/3) shall go to his lineal descendants. If he has left
no lineal descendants, but has left persons, who are of
kindred to him, one-half of his property shall belong
to his widow, and the other half shall belong to those who
are of kindred to him and if he left none who are of
kindred to him the whole of his property shall belong to
his widow.”
b) Section 28 provides that:
“Where the intestate has left no widow, his property shall go to his
lineal descendants or to those who are kindred to him but not
being lineal descendants, according to the rules herein contained’
and where he has left none who are of kindred to him, it shall go to
the Crown (State).”
c) Section 29 and 30 provide that:
“The rules for the distribution of the intestate’s property after
deducting the widow’s share (if he has left a widow) amongst his
lineal descendants, are; where the intestate has left surviving him a
child or children, but no more remote lineal descendants through a
deceased’s child, the property shall belong to his surviving child. If
there be only one, or more shall be equally divided among all his
surviving children.”
1.1.2 Islamic Law
Applicable only where parties to the succession/inheritance profess Islamic
faith.
There are a number of legislation under Islamic law that governs
inheritance/succession i.e.
The Succession (Non-Christian Asiatic) Act (Cap. 112)
Section 6(1).
The Administration (Small Estate) Act (Cap. 30) Section
19(1) (a).
The Judicature and Application of Laws Act (Cap. 453)
Section 9.
The Magistrates Courts Act No. 2 of 1984 Section 18.
The Law of Marriage Act No. 5 of 1971.
The Mohamedan Estate (Benevolent Payments) Act, Cap.25. The Re-
statement of Islamic Law, GN. 22 of 1967.
The Wakf Commissioners Act, Cap. 109.
NOTE:
It may not apply where, the estate subject of
administration is a Small Estate;
The deceased person had through written or oral
declaration provided that Customary Law should apply;
Where the deceased person’s acts or manner of life
show an intention that his estate should wholly or in
part be administered in accordance with Customary
Law.
1.1.3 Customary Law
The Law which is either written, declared or unwritten but recognized
by the community as having the force of law.
Applicable to African members of the Community irrespective of
their religious affiliation.
Every tribe(more than 100) in Tanzania has its own customs and as
such they appear to have own Customary law. As such, there are
numerous customary laws in Tanzania.
The rules o intestate and testate success were then codified through
the Local Customary Law(Declaration ) Order (No.4) of 1963 .
It apply to all local communities in the districts where the declaration
was specifically extended
Mostly applicable in patrilineal communities (80%)
Some basic Rules and features under customary rules:
a) Main heirs are 10 namely:
Children (sons & daughters),
grand children,
brothers,
sisters and their
children,
father,
paternal uncle and
aunts,
husband or
wife
b) Degrees of inheritance are three namely:
i) 1st Degree=First son from the first house: inherit the biggest
share
ii) 2nd Degree=All other sons: Inherit bigger shares than daughters
iii) 3rd Degree= Daughters. Takes smaller share than the two, save
where the deceased did not leave a son, the daughter of the
first house shall be the heir in the first degree.
iv) Distribution of the share in the 2nd and 3rd degree is subject to
age, save that male children will have bigger share irrespective
of the age.
c) Limitation of widow and widower to inheritance:
A Widow has no share in her husband’s estate where there are
issues and the husband has no share in his intestate wife’s estate
save where the wife had no children or any family member.(Rules
27&28)
d) Limitation of Illegitimate children to inherit from fathers:
Illegitimate children cannot inherit from their fathers’ estate, but can
inherit from their intestate mother.
However, they may inherit where they were legitimized or where
there is a Will to that effect (recognizing and bequeathing part of the
estate to them)
e) Limitation on nature of inheritance to heirs:
Males inherit movable and immovable properties absolutely, but
females inherit immovable property only for their use during their life
time, with no permission to dispose the same save in absence of male
members in the family.
NOTE: In the case of BERNADO EMPHAHIM VS. HOLARIA PASTORY
AND GERVAZI KAIZIREGE (PCC) Civil Appeal No. 70 of 1989
(unreported) this customary rule was declared discriminatory and
unconstitutional.
1.1.4 Hindu Law
Hindu Wills Act,1870:
Applicable to the Hindu Community-Limited applicability and no
recorded court case.
Limited jurisprudence
1.2.Laws applicable to probate matters
i. The Probate and Administration of Estates Act, Cap.352 R.E 2019
ii. The Administration (Small Estate) Act, Cap. 30. R.E 2019
iii. The Magistrates Court Acts, Cap. 11 R.E 2019
iv. The Administrator General Act, Cap. 27 R.E 2019
v. The Judicature and Application of Laws Act, CAP 358
vi. The Local Customary Law Declaration Orders (No.4)
vii. The Indian Succession Act,1865
viii. The Hindu Wills Act, 1870
ix. The Administrator General (Power and Functions ) Act, CAP 27
x. The Primary Courts (Administration of Estates) Rules GN No.49 of 1971
xi. The Islamic Law (Restatement) Act, CAP 375
xii. The Islamic Law (Restatement) Order, GN 222 of 1967
xiii. The Probate and Administration of Estates Act, CAP 352
xiv. The Probate Rules
1.2 Laws applicable
xv. The Law of Marriage Act, CAP 29
xvi. The Magistrates Courts Act, CAP 11
xvii. The Succession (Non-Asiatic Christians ) Act, CAP 28
xviii. The Law of the Child Act, No. 21 of 2009
xix. The Trustees Incorporation Act, CAP 318
xx. The Mental Health Act No.21 of 2008
YOUR ATTENTION IS APPRECIATED!!!!!!!!!!
 Session 2

Estate Planning
 THE CONCEPT OF ESTATE PLANNING
• One may ask what is estate planning? In order
to be able to understand the term estate
planning, there is the need to know the term
“estate”.
• The term estate means net worth of a person
at any point in time alive or dead. Generally,
the term estate refers to property.
 Cont……
• Generally, the concept of estate planning is very
comprehensive and dynamic, which by its very
nature connotes a process. Therefore, estate
planning can be defined as:
Process of anticipating and arranging for
disposal of an estate either inter vivos; by
trust; investment through business planning
or power of attorney in case the estate owner
is unable to care for oneself; or through a will
for the benefit of the family members or
other individuals in case estate owner dies
 Cont…
• The above definition implies that, estate planning
covers not only a will and trust but also financial,
tax, medical and business planning in case one
becomes unable to care oneself or passes away.
• The important thing to be noted is that,
sometimes, estate planning may take a form of
an automatic planning through either social
security schemes or insurance system,
particularly life assurance scheme.
 Jurisprudential Basis for Estate
Planning
• One may ask what is the rationale behind for
the existence of the concept of estate
planning? To answer this question there are
two questions which are supposed to be
answered in the affirmative:
First, why do people work? and
Secondly, what things most people fear the
most in life?
 Why do people work?
• The obvious answer to this question is that, people
work so as to earn income to care oneself and one’s
dependants such as old parents, children etc.
• The important thing to be noted is that, in the course
of working people accumulate a lot of properties. That
being the case then, the question remains as to how
those properties are useful to the estate owner. The
estate planning comes in to help the estate owner to
make the best plan of property for his/her benefit and
benefits of his/her dependants when alive or after
death.
 What things people fear the most in
life
• Generally, there are two things which most people fear the
most in life, namely; incapacitation and death.
 Incapacitation refers to the situation in which a person is no
longer able to earn income due to a number of factors such
as old age, unemployment, physical or mental disabilities
caused by accident or diseases like cancer, HIV/AIDS and
mental diseases.
 Death, one may ask why do most people fear death? Fear
of death is something which comes naturally to any person.
This is so because, according to Holy Books, human beings
were created to live eternally. Death came to human beings
as a punishment from God. see., Holy Bible, Genesis 3:17-
19 and Quar’an, Surat Imran 3:185 .
 Applicability of Estate Planning
• As pointed out earlier, estate planning is the
process which is supposed to be done by the
estate owner with the assistance of experts
such as lawyers and accountants.
• The applicability of estate planning can be
categorised into two aspects, namely; when
the estate owner is still alive and after the
estate owner’s death.
Estate Planning when the estate owner
is still alive
• As pointed out earlier, in the course of working people accumulate
a lot of properties. The question is how will such properties be
useful to the estate owner when he/she is still alive. This
necessitates to respond to the following questions.
First, how and by whom assets will be managed for estate owner’s
benefit during his/her life time if he/she ever becomes unable to
manage them;
Second, how and by whom the estate owner’s personal care will be
managed and how health care decisions will be made during
his/her lifetime if he/she becomes unable to care herself/himself;
and
Third, when and under what circumstances it makes sense to
distribute one’s property when still alive.
 Cont…
• In responding to the above questions, when
doing estate planning before the estate
owner’s death, there are a number of things
to be taken into consideration, such as,
investment of the estate, how will the estate
be advantageous to the estate owner if he/she
is incapacitated physically or mentally and at
what point in life will be appropriate to
distribute the estate before death.
 Investment of the Assets
• The first thing in the process of doing estate
planning is to look for the possible ways to
accumulate more assets, hence, the investment
of the assets becomes vital.
• In the view of accumulating more assets, the
estate owner may decide to do the following:
form Trust, business planning and in some cases
join social security schemes.
NB. See, pages 13-30 of the book titled: Succession
and Trusts in Tanzania: Theory, Law and Practice
by N. N. N. Nditi(Jr)
Estate Planning for Medical Disabilities
• There are two circumstances in which estate
planning for estate owner who has medical
disabilities may be applied. Those
circumstances are:
First, estate planning where the estate owner
still has mental capacity; and
Second, estate planning where the estate
owner loses mental capacity.
NB: Read from page 31-38 of Nditi (Jr)’s book
Distribution of estate when the estate
owner is still alive
• There are mainly two ways in which the estate
owner may decide to distribute his/her estate
when he/she is still alive. Those ways are:
Gift inter vivos
Gift in contemplation of death
Please, read page 38 and 39 of Nditi (Jr)’s book.
 Estate planning after estate owner’s
death
• When we talk of estate planning after estate
owner’s death, we are referring testate
succession, i.e, where a person dies leaving a will
behind.
• Therefore, the whole process of making a will is
referred as estate planning, because, by making a
will you plan now on how your estate is going to
be distributed after your death.
• The art of drafting a will entails the estate
planning after estate owner’s death.
Please, read page 40 of Nditi (Jr)’s book
 ASSIGNMENT 1

Mr. Mwambao Bahari, is an employee at KCB Bank. He has been working with the bank for
more than ten years. In December, 2018, he played a lottery game, Tatu Mzuka and won
TShs. 100,000,000/= (Say: Tanzanian Shillings One Hundred Million). In February, 2019 he
got sick and he was bedridden for one month at Kairuki Hospital. After recovering from his
sickness, his close friend, one, Mpendwa Sijaona advised Mr. Bahari to do estate planning so
as to prepare himself from unforeseen contingencies of life.
Mr. Sijaona, informed Mr. Bahari that, you are renowned advocate in matters of estate
planning. Mr. Bahari comes to you for your legal guidance in preparing his estate planning.

a) Assume that, Mr. Bahari wants to do estate planning when he is still alive; (i) Which
important questions will you ask him? (ii) Which options will you advise him to take?

b) Assume that, Mr. Bahari wants to do estate planning over his properties after his death,
what option you will advise him to take. Give reasons.
 Session 4

Testate Succession
 Introduction
• The term testate succession is derived from
the Latin word testamentum, meaning, a will.
• It is important to note that, testate succession
arises where the deceased person has
expressed his/her wishes concerning the
devolution of his/her property during his/her
lifetime, in a form of a will and such will must
be valid in the eyes of the law
 Drafting of the Will
• It is important to note that, drafting a will is an
art, it goes with the saying that, ‘a lawyer does
not invent the will rather he remakes it’.
• It connotes that, there are principles and
procedures to be followed when drafting a
will. Failure to adhere to those principles and
procedures may render the will to be invalid
after it has been propounded to the court
after testator’s death.
 Principles for drafting a Will
• The principles to be considered when drafting
a will include:
1. The Draftsman’s aim;
2. Drafting style;
3. Use of precedents; and
4. Basic structure of the Will.
Please, read pages 110 to 112 of Nditi (Jr)’s book
 Procedures in drafting the will
• There are four stages in drafting a will. Those stages are:
1. Taking the instruction from the prospective testator. In doing this the following
things should be taken into consideration:
 Ascertainment of testator’s capacity and intention
 The manner of taking instructions
 Whether there is a former will(s) or codicil(s)
 Religion and/or tradition of the testator
 The nature and composition of testator’s family
 Types and extent of testator's property
 Need to form trust
 Direction as to disposition of testator’s body
2. Reducing instruction into writing.
3. Execution and attestation of the will
4. Deposition of a will in safe place
Please, read pages 110-116 of Nditi (Jr)’s book
Registration Insolvency and
Trusteeship Agency (RITA)

ADMINISTRATOR GENERAL’S OFFICE.

Administrator Generals Office

 Historical Background:
 1917-Germans enacted the Law on Registration of
Birth and Deaths
 1920-1960 The British in addition to births and deaths
laws added issues of Probate Administration, Trust
and Insolvency
 After independence fully established Office.
When is the Administrator General appointed -S.5 CAP
27
Administrator General’s Office

 Duties:
i) Registration of Births, adoption and Deaths;
ii)Registration of Marriages and Divorces;
iii) Act as a Public Trustee;
iv) Administer Estates;
v) Incorporate Bodies of Trustee;
vi) Act as Official Receiver or Liquidator.
 WILLS

 CAP 352 Defines Will : it is a legal declaration of a

person in respect of his estate and how it should be
managed upon his death.
 A will can be :
Written will or Oral
 Will drafting is governed by 1) Indian Succession Act
 2) Islamic Law 3)Customary Law
 Writing a Will

 Requirements:-
1. Capacity
i) A person should be of sound mind
ii) He/She should be of the age of majority(above
18years)
2.Bequeath his/her property;
3.Should be witnessed by 2 people(one to be a
relative),Dated, written eligibly.
 Contents of a will

 State the maker

 Appoint the Administrator of the estate
 List the properties to be administered
 List the beneficiaries of the estate
 Distribute the properties
 May state where to be buried
 Signatures of the maker, witnesses and commissioner
for oaths.
FOMU YA KUTUNZIA WOSIA
JAMHURI YA MUUNGANO WA TANZANIA

WIZARA YA KATIBA NA SHERIA

WAKALA WA USAJILI, UFILISI NA UDHAMINI (RITA)

FOMU YA KUTUNZIA WOSIA

1 Jina la mtoa WOSIA ……………………………………………………………. Picha ya

Anuani …………………………………………………………………………….. Mtoa Wosia

Mahali anapoishi………………………………………………………………….

2. Mashahidi

i) Jina…………………………………………………………………… ……………….

Kazi……………………………………………………………………………. ………

Anuani…………………………………………………………………………………..

Namba ya simu…………………………………………………………………………

Mahali anapoishi ………………………………………………………………………

Uhusiano na Mtoa Wosia ……………………………………………………………

ii) Jina…………………………………………………………………… ……………….

Kazi……………………………………………………………………………. ………

Anuani…………………………………………………………………………………..

Namba ya simu…………………………………………………………………………

Mahali anapoishi ………………………………………………………………………..

Uhusiano na Mtoa Wosia ……………………………………………………………..

 2. Kumbuka WOSIA uliosahihi unatakiwa kuzingatia yafuatayo:-

a) Ushuhudiwe na mashahidi wasiopungua wawili kama mtoa WOSIA anajua

kusoma na kuandika au wanne kama hajui kusoma na kuandika.

b) Mmoja au wawili wa mashahidi lazima awe ndugu wa mtoa WOSIA.

c) Mashahidi pamoja na Mtoa Wosia lazima waweke saini zao kwa wakati mmoja.

d) WOSIA usitolewe katika mazingira ya kulazimisha au kushawishiwa.

e) Kama ni WOSIA wa Kiislamu lazima uwe umefuata taratibu zote za WOSIA za

Kiislamu kama kutorithisha zaidi ya theluthi moja ya mali kwa watu wa nje.

f) WOSIA unatakiwa uwe na tarehe, mwezi na Mwaka ambao umeandikwa.

g) WOSIA uwe umeandikwa kwa kalamu isiyofutika au kuchapwa na mashine.

h) WOSIA unatakiwa kubatilisha WOSIA zote zilizopita.

i) Wanufaikaji wanatakiwa kutokuwa mashahidi katika WOSIA.

j) WOSIA haupaswi kuandikwa kwa kufutwafutwa.

k) Mtoa Wosia anaweza kutaja sehemu anayotaka azikwe.

l) Mtoa WOSIA hawezi kumnyima mrithi wake mali zake isipokuwa tu kama mrithi
huyo

amefanya mambo yafuatayo :-

❖ Kama amezini na mke/mume wa Mtoa WOSIA.

❖ Kama mrithi amejaribu kumuua , kumshambulia , au kumdhuru vibaya

Mtoa WOSIA (au kumtendea mama/baba wa Mtoa WOSIA mambo
yaliyotajwa )

❖ Mrithi bila sababu hakumtunza Mtoa WOSIA wakati wa shida na njaa

au maradhi.

Mimi ……………………………………………………………………………………………………..
nathibitisha kwamba WOSIA wangu umetosheleza vigezo vya WOSIA halali.

Jina la mtoa WOSIA…………………………………………………………………..

Sahihi…………………………………………………………………………………..

Simu …………………………………………………………………………………

Tarehe ……………………………………………………………………………….
 2. Mchukua WOSIA

Mtoa WOSIA atatakiwa kutaja majina ya watu wawili ambao watachukua WOSIA wake mara
atakapofariki.

i) Jina ………………………………………………………………………………

Kazi……………………………………………………………………………… Picha ya

Anuani…………………………………………………………………………… Mchukua
Wosia

Namba ya simu…………………………………………………………………

Mahali anapoishi ………………………………………………………………..

Uhusiano na Mtoa WOSIA ……………………………………………………..

ii) Jina …………………………………………………………………………………

Kazi………………………………………………………………………………… Picha ya

Anuani…………………………………………………………………………….. Mchukua Wosia

Namba ya simu………………………………………………………………….

Mahali anapoishi …………………………………………………………………

Uhusiano na Mtoa WOSIA ……………………………………………………..

Mimi ……………………………………………………………….ambaye kwa ridhaa yangu

mwenyewe bila kushawishiwa nimeamua kuweka WOSIA wangu kwenye Ofisi ya Kabidhi Wasii
Mkuu/RITA leo
tarehe ……………….mwezi……………..2018 .
NATAMKA KUWA mahali pa kunizika pindi nikifikwa na mauti
ni…………………………………… ………………………………………….au mahali
watakapoamua mume/mke/watoto/wazazi wangu*

________________________________
SAHIHI NA DOLE GUMBA
3. Kwa matumizi ya Ofisi tu
Ndugu………………………………………………………………………….ameweka WOSIA
wake katika Ofisi hii kwa kufuata taratibu zote zinazohusika.

Jina la Afisa mpokeaji WOSIA………………………………………………………………

Sahihi…………………………………………………………………………………………..

Tarehe…………………………………………………………………………………………
*Futa isiyotakiwa.
 JAMHURI YA MUUNGANO WA TANZANIA

WIZARA YA KATIBA NA SHERIA

WAKALA WA USAJILI, UFILISI NA UDHAMINI (RITA)

FOMU YA KUCHUKUA WOSIA

1. Jina la marehemu………………………………………………

Tarehe ya Kifo…………………………………………………..

Mahali alipofia marehemu………………………………………

Jina la mchukua WOSIA…………………………………………

……………………………………………………………………..

Sahihi ya mchukua wosia………………………………………..

………………………………………………………………………

Anuani …………………………………………………………….

Kitambulisho ……………………………………………………….

2. Cheti cha kifo kimeambatishwa NDIYO/HAPANA

Kwa matumizi ya ofisi tu:

3. Nimethibitisha kwamba aliyechukua Wosia ndiye aliyeandikwa na marehemu

Afisa Mtoaji………………………………………………………

Sahihi …………………………………………………………..

Tarehe …………………………………………………………
Why it is important to write a will

 Rightful heirs can benefit;

 Wishes of the deceased can be honor;
 Reduce conflicts in the society;
 Maintaining control over property: the testator can have control
of property even after death if his wishes are honored;
 Avoiding the rules of intestacy;
 Enabling the deceased to appoint personal representatives of
their own choice;
 Administrative convenience; executor can begin administration
while awaiting letters and hence there is no vacuum;
 May benefit persons outside immediate family; and
 Parents can appoint guardians of their minor children through a
will.
 Discussion Questions

 What if a witness dies after witnessing a will?

 What if the testator can not write or read and wants
to write a will?
 What if a testator can not put a signature on the
document to his/her incapacity

 Read the cases provided to further understand the

circumstances of appointment of Administrator
General.
 Materials to be consulted

 Executive Agencies(The Registration Insolvency and

Trusteeship Agency(Establishment) GN.397 of 2005
 The Administrator General (Powers and Functions)
Act, CAP 27 together with The Written Laws
(Miscellaneous Amendments) (No.2) Act,2018
 Probate and Administration of Estates Act, CAP 352
R.E 2002
 The Indian Succession Act,1865
 THE LAST TESTAMENTARY WILL OF

TESTATOR/TESTATRIX

I, [TESTATOR/TESTATRIX] resident of [ADDRESS, COUNTRY] declare this to be my last

Will which I make this……….day of ……………..201... hereby revoking all other wills and
codicils heretofore made by me.

This my will and codicils thereto shall be construed in accordance with the Tanzanian law and
shall be restricted only to my assets situated in Tanzania.

1. DEFINITIONS

“Beneficiary” means the recipient of a bequest made by this Will;

“Bequest” means a gift made by this Will;

“Executor” means generally a person who will administer the property of testatrix in this Will as
the case may be particularly means [NAME OF EXECUTOR];

“Executrix” means generally a person who will administer the property of the testatrix in this
will particularly means [NAME OF EXECUTRIX];

“My daughter” means [NAME] born on [DATE];

“My grandsons”, means [NAME] born [DATE] and [NAME] born on [DATE];

“Niece” means [NAME];

“Siblings” means my brothers and sister born from the same father and mother, namely: [STATE
THEIR NAMES]

“Testatrix” means generally a person who makes a will and in this will particularly means
[NAME OF EXECUTOR/EXECUTRIX];

2. BRIEF HISTORY OF THE TESTATRIX

2.1. I, [EXECUTOR/EXECUTRIX], am a single parent of only and one daughter one [NAME]
and a grandfather/grandmother of two grandsons, i.e, [NAMES].

2.2. In course of my life I have acquire the following moveable and immovable properties
which I intend to bequeath to the beneficiaries of this my will.

2.2.1. .......................
2.2.2. ............................

2.2.3. ......................................

2.2.4. ......................................

2.5. Two motor vehicles with registration No. ......... and ..................

2.6. Bank accounts at:

2.6.1. ................................

2.6.2. ..............................

2.7. Shares in:

2.7.1. ..............................;

2.7.2. ................................;

2.7.3. ................................;

2.8. Funds:

2.8.1. Funds in UTT Identification No..............................

2.8.2. ..................................................

2.9. Personal effects as will be found at my residence and other places.

2.10. Apart from my properties mentioned in paragraphs 2.1 to 2.9 above, there are other
properties which I have interest in them with my relatives:

2.10.1. ..........................................

2.10.2. ..........................................

3. APPOINTMENT OF EXECUTRIX/EXECUTOR

3.1. I appoint my beloved daughter [EXECUTRIX] of P.O. Box ........., Dar es Salaam, to be
the Executrix of this my Will.

3.2. If my daughter predeceases me then my nephew [EXECUTOR] will administer my

properties as Executor of this my Will.

4. BENEFICIARIES

4.1. In this my Will the following are declared to be the beneficiaries:

 4.1.1. My daughter, [NAME]

4.1.2. My grandsons; [NAMES]

4.1.3. My niece; [NAME] and

4.1.4. My siblings; [NAMES].

5. BEQUESTS

5.1. I bequeath unto my daughter, if she survives me, all my properties described in paragraphs
2.1 to 2.9 hereinabove and any other properties that I will acquire after executing this my
Will.

5.1.1. If my daughter predeceases me, the bequest to her shall go to my grandsons so as

each of them to receive an equal share of the same.

5.1.2. If my daughter and my grandsons predecease me, the bequest to them shall go to
either my brother [NAME] or my sister [NAME] or, if they too both predecease me, the
bequest shall go to the Registered Trustees of [NAME OF TRUSTEE] of [PLACE] to
be determined by Trustees as they deem fit.

5.2. I hereby declare that all interest and ownership of the properties described in paragraph
2.10.1 above to go to my siblings.

5.3. I bequeath my share of property described in paragraph 2.10.2 above to my niece.

6. DISPOSITION OF MY BODY

6.1. Upon my death my body shall be buried in accordance with the Christian rites at the
cemetery located at the [PLACE].

6.2. My daughter and relatives should do all that is in their ability to have my body buried at
the site I have chosen.

7. TESTIMONIUM AND ATTESTATION

IN WITNESS WHEREOF I, the said [TESTATOR/TESTATRIX], hereby set my hand to this

my Will, on each page of which I have placed my initials, on this……..day of…....................
2015, at……………………

Signature………………………………………….

Testator’s/Testatrix’s Name………………………………….
 WITNESSES

The foregoing instrument, consisting of ………. pages, including this page, was signed in our
presence by [TESTATOR/TESTATRIX] and declared by her to be her last Will. We at the
request and in the presence of her and in the presence of each other have subscribed our names
below as witnesses. We declare that we are of sound mind and of the proper age to witness a will
that to the best of our knowledge the testator is of the age of majority, or is otherwise legally
competent to make a will, and appears of sound mind and under no undue influence or
constraint. Under penalty of perjury, we declare these statements are true and correct on
this……………day of………………….20…….., at……………

Signature of Witness…………………………

Name of Witness………………………………

Address of Witness……………………………

Signature of Witness…………………………

Name of Witness………………………………

Address of Witness……………………………
 THE LAST TESTAMENTARY WILL

OF [TESTATOR/TESTATRIX]

I, [TESTATOR/TESTATRIX] of [PLACE, ADDRESS] declare this to be my last Will which I

make this……….day of ……………..20… hereby revoking all other wills and codicils
heretofore made by me.

This will and codicils thereto shall be construed in accordance with the Tanzanian law and shall
be restricted only to my assets situated in Tanzania.

DEFINITIONS

“Beneficiary” means the recipient of a bequest made by this Will;

“Bequest” means a gift made by this Will;

“My children” means [NAMES] born on [DATE] and [NAME] born on [DATE];
“Testator” means generally a person who makes a will and in this will particularly mean
[EXECUTOR].
APPOINTMENT OF EXECUTORS AND TRUSTEES

I appoint my parents........ and .............. of P.O. Box ......., [PLACE] to be the executors and
trustees of this my Will.

I declare that in the interpretation of this my Will the expression “my trustees” shall (where the
context permits) mean the trustees for the time being hereof whether original or substituted and if
there shall be no such trustees shall (where the context permits) include the persons empowered
by statute to exercise or perform any power or trust hereby or by statute conferred upon the
trustees hereof and willing or bound to exercise or perform the same.

In this my Will “trust period” means the period starting……… and ending…………..

BENEFICIARIES

In this my Will the following are declared to be the beneficiaries:

(a) .........................................................,
(b) ........................................................
 BEQUESTS

I give and bequeath unto my children [NAME] and [NAME], if they survive me, my assets
described hereunder so as each of them to receive on equal share of the assets:

(A) Shares in the Management Supply Company Limited in Tanzania

If my children predecease me, the bequest to them shall go to my grandchildren so as each of

them to receive an equal share of the same.

If my children and my grandchildren predecease me, the bequest to them shall go to either my
two brothers [NAME] and [NAME] or, if they too both predecease me, the bequest shall go to
any Tanzanian Charity to be determined by Trustees as they deem fit.

TRUSTEES’ POWERS

Trustees shall have the following powers with respect to my assets, to be exercised from time to
time at my Trustees’ discretion without further license or any order of any court:

(a) power to carry out all provisions of this my Will and pay my just debts and obligations in
Tanzania
(b) …..
TESTIMONIUM AND ATTESTATION

IN WITNESS WHEREOF I, the said [EXECUTOR/EXECUTRIX], hereby set my hand to this

my Will, on each page of which I have placed my initials, on this……..day of…......,
200..at……………………

Signature………………………………………….

Testator’s Name………………………………….

WITNESSES

The foregoing instrument, consisting of ……… pages, including this page, was signed in our
presence by [EXECUTOR/EXECUTRIX] and declared by him to be his last Will. We at the
request and in the presence of him and in the presence of each other have subscribed our names
below as witnesses. We declare that we are of sound mind and of the proper age to witness a will
that to the best of our knowledge the testator is of the age of majority, or is otherwise legally
competent to make a will, and appears of sound mind and under no undue influence or
constraint. Under penalty of perjury, we declare these statements are true and correct on
this……………day of…………………., 200….
at……………………………………………………..
1. Signature of Witness…………………………

Name of Witness………………………………

Address of Witness……………………………

2. Signature of Witness…………………………

Name of Witness………………………………

Address of Witness……………………………
 REINFORCING TASK 1

1. What are the things to consider in making a will?

2. What are the things to consider before going to court to petition for
probate?
THE LAW SCHOOL OF TANZANIA

PROBATE, ADMINISTRATION OF
ESTATES & TRUSTS
(LS 108)
 SESSION 5

APPLICATIONS FOR THE GRANT OF

LETTERS OF ADMINISTRATION &
PROTECTION OF ESTATES PENDING
GRANT
Introduction:

Applications are made where:

(i) a deceased person dies intestate; or

(ii) a deceased person leaves a Will

without the executor; or

(iii) there is an executor but he (executor)

renounces his executorship;
(iv) There is partial testacy/intestacy;
or

(v) No executor survives the

deceased; or

(vi) The executor is a person to

whom probate may not be
granted.
NOTE:

Save for the first circumstance where

there is no Will left, applications involving
the rest of the circumstances need to have
a Will annexed.

See: S. 29 of the PAEA for the

circumstances
Essential Steps Prior to Application:
A: Immediately after death:
Steps may vary depending on whether or
not there is a Will;

Where there is no Will left, steps would

start with a family meeting convening to
discuss, among other things:
- appointment of administrator;

- identification of properties;

- to ascertain heirs/beneficiaries

- mode of life of the deceased;

- whether there is a Will or not;

- social status (marriage/divorce);

 - determine cause of death etc.

Where a lawyer is engaged, he would

assist on:
- matters/affairs he had been taking
care of on behalf of the deceased;
e.g. Shares & other investments;

- advise on legal issues pertaining to

the estate, jurisdiction, protection
of the estate pending other steps etc.
B: Immediately Before Going to Court:

Identify applicable law;

Identify proper court/forum;

Law applicable and proper forum

depend on issues that affect jurisdiction
in probate/administration matters. They
are:
- value of the estate;

- place of abode of the deceased;

- social status of the deceased e.g.

Religion (which will determine
the law applicable)
Who May Apply:

Ref. S. 33 (1), (2), (3) of the PAEA;

- any person entitled;
- creditor;
- attorney of a person entitled to
administer

Letters of administration for Special

Purposes – See Ss. 35-41;
Procedure for Applications:
Application by way of Petition – S. 56 (1);

Contents of the Petition – S. 56 (1);

Form of the Petition (Form 27) – Rule 39;

Title (Form No. 1);

Documents accompanying Petition –

Rule 39
Procedure in Court

Issuance of a general citation (Form No.

58);

Where no objection – court to grant

letters;

Where there is an objection – contentious

proceedings
PROTECTION OF ESTATES PENDING GRANT
AND
EXECUTORS OF THEIR OWN WRONG

A: Protection of Estates
Why Protection? Various circumstances
may lead to the need for protection of
estates:
- danger that the property may be
wasted [S. 10 of Cap. 352];
- proceedings taking long;

- protection of the beneficiaries;

- need for interim measures;

How to Protect/Measures:

- Appointment of a receiver pending

grant (S. 10) + Rule 24 (Procedure);
- Sale by Order of the Court (S. 11);

Note: This can be done by a

person appointed under S.
10 or any other person.
See Rule 25 for procedure.

- Letters of administration for special

purposes. Ss. 35-44 of PAEA.
B: Executors of Their Own Wrong

- S. 16 of the PAEA provides for

executors of their own wrong;

- Justifiable intermeddling S. 16
(proviso);

- Liability of executors of their own

wrong; S. 17
 Session 6

Court’s Jurisdiction in Probate and

Administration Cases
Courts having jurisdiction to entertain
probate and administration matters
• The laws regulating jurisdiction of courts entertaining
probate and administration matters are the Probate
and Administration of Estate Act [Cap 352, R.E 2019]
and the Magistrates’ Courts Act [Cap 11, R.E 2019]
• The Probate and Administration of Estate Act,
establishes three types of courts having jurisdiction to
entertain probate and administration matters. Those
courts are:
1. The High Court, see, sections 3 and 4 of the Act;
2. The District Delegates, see section 5 of the Act; and
3. The District Court, see section 6 of the Act
 Cont…
• The Magistrates’ Courts Act, recognises the
Primary Court to have exclusive jurisdiction in all
matters relating to Customary or/and Islamic law.
• By virtue of the two pieces of legislation, the
courts having jurisdiction to entertain probate
and administration matters are:
1. The High Court;
2. The District Delegate;
3. The District Court; and
4. The Primary Court
 Determination of Courts
• One may ask, which factors are used to
determine jurisdiction of courts in probate
and administration matters? There are two
factors which can be used to determine the
jurisdiction of courts in probate and
administration matters. Those factors are:
1. Pecuniary jurisdiction of the courts; and
2. Regimes regulating the estate of the
deceased person.
Pecuniary Jurisdiction of the Court
• When we talk of pecuniary jurisdiction in
probate and administration cases, we refer to
small estate or estate other than small estate.
Small Estate.
Section 2 of the PAEA as amended by section
55 of the Written Laws (Miscellaneous
Amendments (No. 2) Act of 2016, defines a
small estate as an estate whose value does
not exceed TZS. 100,000,000/=.
 Cont…
• The court having jurisdiction to entertain
matters which are small estate is the District
Court.
NB: Read section 6 (1) of PAEA, Cap 352.

Estate other than Small Estate

If the deceased’s estate is not small estate, is
referred to as estate other than small estate
 Cont..
• The question is how to determine the court in
which the petition for probate or letters of
administration is to be filed and granted? To
determine the jurisdiction of the court there is a
need to ascertain the regime that regulates the
deceased’s estate.
• There are three competing regimes that regulate
probate and administration matters in Tanzania,
namely, the Statutory law, Islamic Law and
Customary Law.
 Islamic and Customary Laws
• As pointed earlier, the court having
jurisdiction to entertain matters falling under
Islamic law or customary law is the Primary
Court.
• Therefore, if the matter is not small estate, the
court having the jurisdiction to entertain
Islamic and customary cases is the Primary
Court.
 Statutory Law
• When we talk of statutory law, we are
referring to the Indian Succession Act of 1865.
This law is still applicable to date. The law
applies to those who are Christians.
• Therefore, the appropriate court to entertain
probate and administration matters falling
under statutory law is either the High Court or
the District Delegate.
NB: Read Chapter 9 of Nditi (Jr)’s book
Petition for Grant of probate and letters of
administration
 Deceased has died intestate (without leaving
a will)

 Under Sect. 29 Cap. 352 if

 The testator did not mention the executor
 The executor has renounced the executorship
 The executor did not survive the testator
 The executor died before grant of probate
 Applicationshall be made to High Court, A
Court of District Delegate or District Court
Provided
 sec. 53(1) the deceased had fixed place of abode
within the local jurisdiction of the court
 Are provided under sect. 56 (1) &(2) PAEA
 Application shall be made by way of PETITION

 The Petition shall state:

• Date and place of deceased death
• Family and other relatives and their respective
addresses
• The right which the petitioner claims
• The amount and nature of the assets
• Due diligence was made to find the will
• No proceedings is made over the same assets
 The petition shall be verified by the petitioner

 Ifit is application for letters of administration

with the will annexed it shall be verified with
one of the witnesses in the will unless the
court dispenses with that requirement.
 Shall
be made in prescribed form, form no. 27
set out in the 1st schedule

 Shallbe accompanied with the following

documents referred in rule 39 of the Probate
Rules
• Certificate of death from a competent authority
• Affidavit as to the deceased domicile
• Administrators oath
• administrators bond
• Certificate as to the financial position of sureties
• Consent of heirs
• In case of sole administrator,an affidavit
 Petition for letters with the will annexed
 shall be accompanied by the will and the
documents referred in rule 39.

 Application shall be made with form no.

25 and 26
R. 42 a trust corporation, other than the Public
Trustee may apply for letters of admin by filling
form # 28
A petition shall be made by any officer of the
corporation
Who shall file all required documents plus a
resolution of the corporation so authorizing to
make applications,
He shall sign oaths, affidavits and other documents
required to be executed or sworn under the Rules.
 43. An application for grant of letters of
administration by a lawfully constituted
attorney of a person residing outside
Tanzania shall be in the form prescribed in
Form 29, 30 or Form 30A
 The attorney shall file together with his
petition the power of attorney constituting
him as such attorney.
 REINFORCEMENT TASK 2

1. List the documents to be prepared if a person wants to petition for

probate?

2. List the documents to be prepared if a person wants to petition for

letters of administration?
THE LAW SCHOOL OF TANZANIA

PROBATE, ADMINISTRATION OF
ESTATES & TRUSTS
(LS 108)
 SESSION 8 (A)
RENUNCIATION OF
EXECUTORS/ADMINISTRATORS &
POWERS AND DUTIES OF
EXECUTORS/ADMINISTRATORS
A: Renunciation:
- withdrawal from/forfeiture of an
entitlement/position/right

Types:

Express - S. 18 of PAEA

Constructive - S. 19 (1) & (2) of PAEA

The Effect of Renunciation:

- it bars the person so renouncing

from applying thereafter for
probate/letters of administration

However, the court may allow withdrawal

of renunciation if it’s satisfied that it’s for
the benefit of the estate - S. 20 PAEA
Procedure for Renunciation:
Express renunciation – Form No. 9 (Rule
26);

Procedure for constructive renunciation

– Rule 27

Affidavit to support Application for

Citation – Form No. 10;

Citation to accept/renounce – Form No.

11 (Rule 27)
B: Powers & Duties of Exec/Adm:
Part XI of the PAEA

NOTE: Powers, duties, responsibilities to

be exercised subject to:

- wishes of the deceased & best

interests of the beneficiaries in
testate succession;

- best interests of the beneficiaries

in intestate succession
Ref: 1. Mohamed Hassan Vs. Mayasa
Mzee & Another [1994] TLR 225
(whether consent needed in
dispositions by executor)

Cf: 2. Rajabu Sudi Rajabu, Probate &

Admn. Cause No. 11 of 2008, HCT
(Arusha)
 SESSION 8 (B)

CHALLENGING AN APPLICATION FOR

PROBATE/ADMINISTRATION
(CONTENTIOUS PROCEEDINGS)
Common Issues Giving Rise to Contentious
Proceedings:
Disputes btn executors/beneficiaries;

Objections over forged Wills;

Wills made under duress/undue

influence;

Disputes over execution of Wills;

Domicile disputes;

Misappropriation of properties
(maladministration);

A Will lacking the required attributes e.g.

- capacity of testator
- a will not considering other
beneficiaries
Failure to account for subsequent births,
marriages, deaths, divorces etc.
Do you believe you should have been left
something under the will?

Do you feel you were entitled to more

than what has been given to you under a
Will or intestacy?

Petitioner not entitled to apply in terms

of S. 33 of PAEA (entitled persons)?

Is it because the Petitioner is likely to

endanger the estate?
Ref: Re Bird Deceased [1970] 1EA 289 –
(whether divorce revokes a Will)

Common Errors that Attract Contentions

over Wills:
- See also Rules 54 – 62 of the
Probate Rules
Procedure for Contentious Proceedings:

(a) Entering of a caveat;

- S. 58 (1) of PAEA
- Form 62 (Rule 82)
- Place of entering caveat – HC
Exception: S. 58 (2)
- Effect: proceedings to stay until
caveat determined – S. 59 (1)
- Life Span: 4 months – S. 58 (5)
(b)Citation to Caveator:
- Petitioner to apply for the issuance of
a citation to the caveator;
-S. 59 (2) of PAEA

- Application for Citation – Form 63

[Rule 82 (2)];
-Application within 30 days from
the date of the caveat
- extension to file application –
Rule 82 (2A)

- failure to lodge the application

after extension – the petition is
deemed to have been withdrawn
- Rule82 (2B)

- petition may be restored only if

no grant has been made to
another person
(c)Issuance of a Citation:

- Registrar to issue a citation (Form 64)

requiring the caveator (within 30
days) to state whether he supports
the grant;

- if he does not support, then to enter

appearance;
(c)Caveator to enter Appearance:
- Appearance is Form 65;

- Appearance to be supported by an
Affidavit - Rule 82 (4);

- To be served upon the Petitioner;

(d)Petitioner to file a Counter Affidavit

- The counter Affidavit responds to the

Caveator’s Affidavit.
Form of Proceedings:
- Where the caveator enters
appearance, the proceedings take as
nearly as possible the form of a suit.
Rule 82 (6)

For purposes of “pleadings”:

(i) Petitioner’s Petition serves as a
Plaint;

(ii) Caveator’s Appearance together

with its Affidavit serve as a WSD
(iii) Petitioner’s C/Affidavit serves as
a Reply to the WSD;

(iv) The Petitioner becomes the

Plaintiff & Caveator the
Defendant;

(v) Case file number to read as an

ordinary Civil Case – Rule 82 (6)
Jurisdiction of a District Delegate in
Contentious Proceedings:
- See Rule 83:

- where the gross value of the estate is

beyond 15,000/-, the DD upon receipt
of appearance by caveator and an
Affidavit in support thereof, shall
forward the record of proceedings to
the Registrar;
- Registrar to place the matter before
a Judge in Court;

- the Court may either proceed to

handle the matter by itself or remit
it to the DD with directions on
how to proceed.

- by implication, only the HC has

jurisdiction to determine a
contentious matter whose estate
value exceeds 15,000/-.
 REVOCATION OF GRANTS

A grant of probate and letters of

administration may be revoked or
annulled.

S. 49 of the PAEA provides for revocations

and/or annulments of grants.
Circumstances/Grounds:
S. 49(1) (a – e) of the PAEA lists
reasons/grounds that may be used in
applications for
revocation/annulment of grants.

How to apply
-Chamber Summons + Affidavit
-Rule 29 of the Probate Rules provides
for procedure
-Applications are to be made to the
Court which granted probate or
letters of administration.

Who may apply

-Any person having a lawful interest in
the estate (e. g. beneficiary, creditor,
etc.)
 SESSION 9
ADMINISTRATION OF ESTATES

Administration
It entails the collection, preservation
and distribution of the estate
among the recognised beneficiaries,
payment of debts and other
liabilities.
Requirements
- Preparation and Filing of an Inventory
(a list of assets and properties
constituting the estate).

- To be filed within 6 months from the

grant. See S. 107, Rule 106

- Form 80
-Within one year from the grant to file
a true statement of account of the
estate.

-See S. 107, Rule 107

-Form 81

-Read further Rules 108 - 113

- Distribution of the estate
The estate has to be distributed to all
lawful beneficiaries, after deducting
or paying first the approved debts and
other liabilities.

Assent
For a beneficiary to have title over any
asset that comes under his hands, the
assent of the executor/administrator
is necessary. Read Rules 114-117.
Closure of the Court/Case File
-the proceedings are closed after the
Court is satisfied that the
executor/administrator has
discharged fully all obligations as set
by the law.
 ASSIGNMENT 2

1. What are the possible grounds for challenging an application for grant of
probate/letters of administration?

2. What are the procedures for challenging the grant of probate/letters of

administration and what are the necessary documents?
 REINFORCING TASK 3

 READ about the Powers and Duties of

Administrators/Executors and prepare a brief note.

 STATUTES

o Part XI of the Probate and Administration of Estates Act, Cap 352

o The Administrator General (Powers and Functions) Act, Cap 27

CASES

In Re: Rajabu Sudi Rajabu, Probate & Admin Cause No. 11 of 2008, HCT
at Arusha

Mohamed Hassan Vs. Mayasa Mzee & Another [1994] TLR 225

Re: Application by Ibrahimjee Ghulamhussein Anjarwala [1946] EACA 3

SUCCESSION AT INTERNATIONAL
LEVEL

SESSION 10
 PRESENTATION OUTLINE

• INTRODUCTION
• CHOICE OF LAW
• RULES GOVERNING TESTATE AND
INTESTATE SUCCESSION
• RULES GOVERNING ADMINISTRATION OF
ESTATES
• CONVENTIONS
• CONCLUSION
 INTRODUCTION

• Globalisation has forced people to move from one country

to another, and in the cause of doing so death may occur.
• The deceased may have properties in more than one
country, the question will be how are you going to deal
with the estate of the deceased in different countries?
• All succession matters i.e lex successionis which contain
foreign elements are regulated by private international law.
• PIL is also referred as conflict of laws.
• Conflict of laws at international level leads to the choice
of law rules.
 INTRODUCTION CONT…
• PIL is the branch of law which regulates the relationship
between private persons (Natural or legal) of two different
states.
• Whereas Public International Law is the body of legal rules
which are applied between sovereign states and other
International personalities.
• Therefore things to consider in succession at international
level are as follows:
 Testate & Intestate succession
 Administration of estates
 INTRODUCTION CONT…..

• In Testate: Will
• Will
Capacity (Age, Mental & Physical)
Intention (Animus testandi)
Formality
• In intestacy: Properties
Properties in different countries/jurisdictions.
Administration of estate: In different jurisdictions
 CHOICE OF LAW
• When courts are faced with the choice of law in the
succession cases of international level there are two stage
processes undertaken to reach the most appropriate and
just decision: These processes are:
 Ascertaining the applicable law
 Considering the connecting factors
• Applicable law: usually the courts apply the law of the
forum i.e lex fori in all procedural matters.
• Connecting factors: Are used to ascertain the link of the
legal issue to the law of potential relevant state and apply
the laws which have the greatest connection with the
matter at hand.
 CHOICE OF LAW CONT…..

• …Eg.the law of nationality (lex patriae) or domicile (lex

domicilii) will define legal status and capacity, the law of the
state in which the land is situated.
• Connecting factors act as a link between a person and the
legal system or rules that will apply to that person in
specific context of the succession matter.
• There are many connecting factors depending upon which
court is the forum applying lex fori for determining the lex
successionis.
 CHOICE OF LAW CONT…
Traditionally there were four(but now six) connecting
factors:
• The law of the deceased’s domicile at death;
• The law of the deceased’s nationality at death;
• The law of the deceased’s habitual residence at death;
• The law of jurisdiction in which the deceased’s immovable
and movable properties are located.
• The law of the deceased’s nationality at the date he
expressly chose in his will as the applicable law;
• The law of the deceased’s habitual residence at the date he
expressly chose in his will as the applicable law;
 1.The law of deceased’s domicile at death

• The law of domicile (lex domicilii) is a connecting factor

that applies in a number of countries, especially where
common law prevails. The word domicile was defined
in Henderson v. Henderson [1967], but also Lord
Cranworth defined in Doucet Geoghegan (1878) Ch.D
441 as follows:
“By domicile we mean home, the permanent home,
and if you do not understand your permanent home,
I am afraid, that no illustration drawn from foreign
writers will very much help you to it.”
Types of domicile: (1)of origin, (2)choice (3) dependence
 2.The law of the deceased’s nationality at death
• Nationality represents a person’s political status, by
virtue of which he/she owes allegiance to a particular
country. The law of nationality (lex patriae) was first
adopted in France in 1803.
• The concept of nationality depends not only on the
place of birth of a person of his parents but also on
naturalisation.
 3. The Law of deceased’s habitual residence
• Habitual residence has been used as a connecting
factor in many countries. It has played a most
important role in the Hague Convention on the Law
Applicable to Succession to the Estate of Deceased
Persons of 1988, because it provides an alternative to
nationality and difficulties associated with domicile,
such as those in regard to intention, origin,
dependency etc
 4. The Law of jurisdiction in which deceased’s
immovable and movable properties are situated

• This law where the properties are located at the

deceased’s death plays a very important role as one of
the connecting factors in lex successionis.
• Basically the laws of those jurisdictions are likely to
govern the administration of the estate of the
deceased’s properties.
 RULES GOVERNING TESTATE AND
INTESTATE SUCCESSION
Testate succession
• The conflict may arise in time and place where the will
was made. Here there are various issues which may
arise:
 Testamentary capacity i.e age+mental capacity. The law
governing capacity is the law of the testator’s domicile.
 Formal validity of wills. This also is governed by lex
domicilii i.e the testator’s domicile at the time of his
death. Read Bremer v Freeman (1857) 10 Moo.P.C 306. Lex
Loci actus is an alternative to lex domicilii.
 Material validity of the wills. A will may be formally
valid but essentially invalid. The law governing essential
validity of the will is lex domicilii.
 RULES GOVERNING TESTATE AND INTESTATE
SUCCESSION CONT…
• Intestate succession
Movable properties
 The law which governs intestate succession is lex domicilii.
This law determines heirs, the rights of spouse, children, and
other issues relating to intestate succession. What happens if
a person has left no relative recognised as the heir? Read In
the Estate of Maldonado [1954] All ER 150.
Immovable properties
 Traditionally under common law, intestate succession to
immovables is governed by the scission principle under
which the lex situs applies i.e the distribution shall be
governed by lex situs regardless of his domicile.eg Duncan v
Lawson(1889) 41 Ch.D 394
 Immovable properties…

• The principle of scission has been abandoned by

other non-common law countries.
• The Hague Convention on Law Applicable to
Succession to the Estate of Deceased Persons
of 1989 adopts the unitary approach. Where
the applicable law is the law of habitual
residence of the deceased; but if the deceased is
not a national or has not resided in that country
for the last 5 years the applicable law would be
that of the deceased’s nationality.
 RULES GOVERNING ADMINISTRATION
OF ESTATES
• As a GR movable properties of a deceased person
(testate/intestate) is regulated by the law of the country in
which the deceased died domicile (lex domicilii).
• The validity of the will of immovable property is determined
by the lex loci rei sitae (law of the place where the property is
situated)
• Immovable property on intestate succession is habitual
residence.
• Where the deceased has left properties in two different
countries, according to Common Law there must be 2 types
of personal representatives i.e Principal administrator who
derives his powers from lex domicilii of the deceased and the
second one is ancillary administrator who is appointed in
 CONVENTIONS
• The Hague Convention on Law of Succession of 1989
 Art 2 states that it applies to both contracting and non-
contracting parties
 However it does not apply to the form of dispositions of
property upon death, issues pertaining to matrimonial
property, and property rights, interests or assets created or
transferred otherwise than by succession eg insurance
contracts, right of survival, pension plan etc.
 This convention provides for connecting factors which
courts may apply in dealing with succession matters of the
deceased containing foreign elements. Read Art 3(1)-(3)
• The EU Green paper proposed a uniform law in
succession matters.
 CONVENTIONS CONT…
• The Brussels Convention on Jurisdiction
and Enforcement of Judgment in Civil and
Commercial Matters of 1968.
It excludes succession matters Art 1(1)
• The Lugano Convention of 1988
It applies in Switzerland, Italy, Finland and
Netherlands.
It excludes recognition and enforcement of
judgments on succession matters.
No uniform law for succession at international
level.
THANKS FOR YOUR
ATTENTION
 ASSIGNMENT 3

In 1968, Mr. Erick Mwakaje got married to Ms. Margareth Bradley according to Christian
rites in Italy. In 1969, they were blessed with a baby girl, Erieth Mwakaje. In 1970 Mr. Erick
returned back to Tanzania with his family from Italy. In 1972, Mr. Erick and Ms. Margareth
got misunderstanding and Ms. Margareth decided to return back to Italy with her daughter.

In 1974, Mr. Erick got married to a Tanzanian girl one Mwanaidi Marijani (a Moslem)
according to civil marriage rites. In 1975, Ms. Mwanaidi changed her religion from Islamic
to Christianity and she was baptized and changed her name to Happiness Marijani.

In 1980, Mr. Erick was diagnosed to have diabetes mellitus. In 1982, Ms. Happiness
deserted Mr. Erick and left her matrimonial house at Oysterbay to Kimara kwa Msuguri and
left him with two children. After Ms. Happiness left the matrimonial house, Mr. Erick started
involving with extramarital relationship with many women. In 1985, he got a daughter
called Lidya Mwakaje and in 1990 he got a son, one, Jackob Mwakaje.

In June, 2015, Mr. Erick was very sick, his young brother Eliudi Mwakaje, who is a Medical
Doctor, decided to take his brother to England for further treatment. In October, 2015, Mr.
Erick decided to draft a Will according to English law. On 10th December, 2015, he passed
away while in England. On 15th December, 2015, the body of Mr. Erick was returned to
Tanzania and it was buried on 18th December, 2015 at Tukuyu, Mbeya. On 20th December,
2015 a family meeting was convened and Mr. Eliudi informed that, his late brother had left
a Will and he read it over to family members. In February, 2016, Mr. Eliudi filed a petition
for grant of Probate in the High Court of Tanzania, at Dar es Salaam District Registry.

a) Ms. Happiness has filed a caveat contending that, the Will is invalid as it does not
comply with the requirements of valid will according to Tanzanian laws. Assume you are a
judge, what is your verdict regarding the validity of the Will.

b) Ms. Margareth has shown up and she is claiming that she is the lawful wife of the
deceased and she is entitled to inherit from her deceased’s husband property. What is
your verdict regarding her right(s), if any.
 “ORIGINAL”

IN THE HIGH COURT OF TANZANIA

(MAIN REGISTRY)
AT DAR ES SALAAM

CIVIL CASE NO. 1 OF 2011

EMMANUEL MARANGAKIS as Attorney of

ANASTASIOS ANAGNOSTOU ...................…………….………….. PLAINTIFF

VERSUS

THE ADMINISTRATOR GENERAL ………………………………… DEFENDANT

Date of last order: 10/05/2011

Date of Ruling: 13/05/2011

JUDGMENT

Dr. Fauz Twaib, J:

This is a case stated for this Court’s opinion in terms of section 65 and
order XXXIV of the Civil Procedure Code, Cap 33 (R.E. 2002) (hereinafter
“the CPC”). The suit was filed as a Special Case by way of a Plaint and
supplemented by a Schedule thereto (both of which have been signed by
both the Plaintiff and the Defendant). The two documents together set out
the facts that led to the dispute. In the Plaint, the parties also framed the
issues that the Court is being called upon to determine.

The material facts in this case are not in dispute, though in his affidavit
filed on 4th March 2011, Mr. Gilbert Peter Buberwa, Counsel and Senior
 “ORIGINAL”

Officer in the office of the Defendant, attempted to introduce some new

facts from those earlier agreed and filed with the Plaint and the Schedule
thereto. However, in view of the legal position that a party may not be
allowed to depart from his pleadings without the Court’s leave, I will
ignore the averments in paragraph 2 that attempt to depart from the facts
as agreed by both parties in the Plaint and its annexures.

Furthermore, in his written submissions, Mr. Zake, learned Counsel for the
Plaintiff from Rweyongeza & Co., Advocates, has complained that
paragraph 6 of Mr. Buberwa’s affidavit introduces a new position from the
Defendant. The paragraph proposes that the property in dispute be placed
in the hands of the Administrator General “so that it can be determined”
who is legally entitled to own the property or that the same “be placed
under the Public Trustee”. It is true that this paragraph contains a new
position and a prayer that is not contained in the Plaint. However, in view
of my decision in this judgment, the controversy brought about by this
new stance on the part of the Defendant will have no consequence.

In brief, the material facts as agreed by both parties are as follows:

On 7th May 2006, a Tanzanian lady of Greek origin, DIANA ARTEMIS

RANGER, née Anagnostoy Georgio, died intestate at the Aga Khan
Hospital, Dar es Salaam. She left behind an estate comprising, among
other things, a landed property situate at Plot No. 648 Upanga, Dar es
Salaam, registered under Certificate of Title No. 186172/28. Though the
parties state that the deceased had only one surviving heir (her brother
ANASTASIOS ANAGNOSTOU), it would appear that she had at least two
others, IRANIS ANAGNOSTOU (a niece) and GEORGIOUS ANAGNOSTOU
(a nephew). All three of them were, apparently, non-Tanzanians. The
brother was a Greek citizen.

2
 “ORIGINAL”

By Power of Attorney, the said Anastasios Anagnostou appointed

EMMANUEL MARANGAKIS, who is acting on his behalf herein, to be his
attorney and agent in respect of his interests in the estate of his late
sister. The Power of Attorney also gave the said Emmanuel Marangakis the
power to “donate the property by gift inter vivos to anyone, including
himself by self agreement” and generally to deal with the property as he
deemed fit.

With the consent of Anastasios Anagnostou, Emmanuel Marangakis applied

for Letters of Administration of the deceased’s estate in Probate and
Administration Cause No. 46 of 2006. His application was opposed by the
deceased’s niece, Iranis Anagnostou and nephew, Georgious Anagnostou.
Mandia, J., in a ruling delivered on 7th May 2007, appointed the latter to be
the administrator of the estate.

The Plaintiff was not satisfied. He appealed to the Court of Appeal in Civil
Appeal No. 51 of 2007 and partly succeeded. The Court of Appeal removed
Georgious Anagnostou as Administrator and appointed the Defendant
Administrator General in his stead. While the appeal was pending in the
Court of Appeal, the Administrator (presumably the then Administrator
Georgious Anagnostou) disposed of a second landed property at Masaki,
Dar es Salaam. In a compromise between Anastasios Anagnostou, Iranis
Anagnostou and Georgious Anagnostou, it was decided that the rest of the
estate, for our particular purposes the suit property at Upanga, Dar es
Salam, should go to Anastasios Anagnostou, the deceased’s brother and
the Plaintiff herein.

3
 “ORIGINAL”

According to Annexure CS4 to the Schedule to the Plaint, a letter from

Georgiuos Anagnostou dated 4th May 2010, the heirs further agreed as
follows:

1. Georgiuos Anagnostou distributes the assets from the sale of the

house in Masaki (belonging to the estate) and other minor assets
already in his hands, together with bank balance in Tanzania, to all
the heirs except Anastasios Anagnostou.

2. Anastasios Anagnostou gets the house at Upanga (the suit property)

and the car and Emmanuel Marangakis is relieved of having to pay
rent for the use of the house and the car over the past four years.

However, the Defendant Administrator General felt that he could not

distribute the suit property to Anastasios Anagnostou because, in his view,
being a non-citizen, the said beneficiary is not entitled to own land in
Tanzania by virtue of the provisions of the Land Act, Cap 113 (R.E. 2002)
(hereinafter ”the Land Act”).

Anastasios Anagnostou claims his right to inherit as a beneficiary of the

estate of his sister (and upon the consent of all the other heirs). It is his
position that it is not upon the Defendant as Administrator of the estate to
choose what to bequeath to him and what not. He has himself has already
“passed over” the property to Emmanuel Marangakis, his Attorney herein,
who is a Tanzanian citizen of Greek origin. The Attorney is at liberty to
deal with it as he deems fit. He cannot understand why the Administrator
General should not comply with his wishes.

4
 “ORIGINAL”

Hence, the dispute that this Court is called upon to determine, according
to the Plaint filed under Special Case procedure, relates to a determination
of the following issues:

i. Whether the Administrator General can legally bequeath the House

on Plot No. 648 Upanga, Ilala District, Dar es Salaam, registered
under CT No. 186172/28, L.O. No. 30616 and LD No. 71622 to
Anastasios Anagnostou, who is a Greek citizen and a beneficiary of
the estate of the late Diana Artemis Ranger, his sister in the light of
the provisions of the Land Act.

ii. Whether the said Anastasios Anagnostou, the beneficiary, can pass
his interest and have his share of estate as aforesaid transferred to
Emmanuel Marangakis who is a Tanzanian, his duly appointed
Attorney.

iii. Whether the only solution is to dispose of the property and pass the
proceeds to the beneficiary or his Attorney.

The Plaint also draws as an issue whether the established value of the
property in dispute in TZS 391,000,0000. However, given the nature of the
case, the pleadings, the evidence and submissions, I do not think that the
parties wanted to make this an issue. It does not appear to be in dispute
and none of the parties has argued it. I am inclined to think that the use
of the word “WHETHER...” was typographical error, and that the parties
intended to say “WHEREAS...” instead. Indeed, it makes better sense that
way and does not prejudice any of the parties. I will therefore read it as
such.

5
 “ORIGINAL”

From the foregoing, it is obvious that the dispute in this suit revolves
around the interpretation of subsection (1) of section 20 of the Land Act.
It restricts the occupation of land by non-citizens in the following terms:

(1) For avoidance of doubt, a non-citizen shall not be allocated or

granted land unless it is for investment purposes under the Tanzania
Investment Act [Cap 38, R.E. 2002]. [Emphasis mine]

Section 20 (1) falls under Part V of the Land Act, which deals with “Rights
and Incidents of Land Occupation.” The provision immediately before it,
Section 19 of the Land Act, provides that the rights to occupy land under
the Act are declared to be:

(1) The rights to occupy land which a citizen, a group of two or more
citizens whether formed together in an association under this or any
other law or not, a partnership or a corporate body, in this Act called
"right holders", may enjoy under this Act are hereby declared to be–

(a) a granted right of occupancy;

(b) a right derivative of a granted right of occupancy, in this Act

called a derivative right.

The definition section of the Land Act, Section 2 defines a "granted right
of occupancy" as “a right of occupancy granted under and in accordance
with Part VI of this Act”;

Clearly, section 20 (1) prohibits the allocation and granting of land to a

non-citizen. But what is the true import of this provision? To answer that
question, we need first to answer what is meant by an “allocation” and/or
a “grant” of land? It is true that the marginal notes to the section reads

6
 “ORIGINAL”

“occupation of land by non-citizen restricted”. Occupation would, in plain

language, mean the mere holding of a right of occupancy. However, it is
an established rule of interpretation in common law jurisdictions that
marginal notes do not form part of the statute. They are only meant as a
guide.

The Defendant has, in his written submissions, argued that the Plaintiff’s
Counsel is wrong in citing the provisions of section 12 (1) of the Land Act
which deals with allocations, and section 22 (1) on grants of rights of
occupancy. He opines that these provisions are irrelevant and, in his
words, “we cannot let ourselves [be] carried in that direction”. With all due
respect to learned Counsel, I think he is wrong. The relevance of the cited
provisions is in the fact that they are the ones that will assist us in
determining what is really being prohibited by section 20 (1) of the Land
Act. And that is exactly what makes the provisions of sections 12 (1) and
22 (1) of the Land Act deserve this Court’s consideration in resolving the
issues at hand.

The Land Act provides that no allocation of land shall be valid except
when done in accordance with the Act. The Act provides, under section
12, for the establishment of Land Allocation Committees which are charged
with the task of advising the Commissioner for Lands on the exercise of his
powers to determine applications for rights of occupancy. The definition
section also gives the following definitions:

The word "transfer" means “the passing of a right of occupancy, a lease or

a mortgage from one party to another by act of the parties and not by
operation of law and includes the instrument by which such passing is
effected” [emphasis mine]. So, under the Land Act, a bequest upon death
is not a transfer, because it is not a “passing of a right of occupancy by

7
 “ORIGINAL”

an act of one party to another”. Rather, it is a transmission, a word

which section 2 of the Land Act defines as “the passing of a right of
occupancy, a lease or a mortgage from one person to another by
operation of law on death or insolvency or otherwise” [emphasis mine].

On the other hand, grants of rights of occupancy are made under Section
4 (5), which provides as follows:

“A grant of a right of occupancy shall be made in the name of the

President and shall be sealed with a seal of a nature and pattern
which the President may, by order published in the Gazette,
approve.

Having transgressed a bit in order to look at some relevant provisions of

the law, let me now return to the central issue as to whether it is legally
proper to bequeath a right of occupancy belonging to a deceased’s estate
to a heir who is not a Tanzanian. Indeed, the issue raises some other
pertinent questions, such as whether a non-Tanzanian son or daughter of
an owner of land in Tanzania can succeed his/her parent in the ownership
of landed property in view of the restriction imposed by section 20 (1) of
the Land Act.

It is perhaps in order to begin with section 4 (6) of the Land Act, under
which all rights in land that have accrued before its commencement are
preserved, which means that the property of a deceased’s person are
rights that can and should be inherited by his/her heirs. Would it be proper
to argue, as the defendant appears to do herein, that those rights are to
be extinguished upon the rights holder’s death simply because his/her
heirs are non-Tanzanians? The subsection stipulates:

8
 “ORIGINAL”

(6) Nothing in this section shall be construed to affect the validity of any
right of occupancy lawfully granted or deemed to have been granted or
consented to under the provisions of any law in force in Tanzania before
the commencement of this Act.

I do not think it will be within the spirit of this provision to say that a
deceased’s heir cannot inherit landed property unless he/she is a
Tanzanian. Indeed, from the legal position as I have endeavoured to
explain above, it is clear to me, and I so hold, that a bequest of a
deceased’s property upon his/her the death is neither a grant nor an
allocation of a right of occupancy. Consequently, it is legally possible for a
bequest to be made in favour of a non-citizen.

In addition, the position I have taken is fortified by the provisions of

sections 68, 71 and 140 of the Land Registration Act, Cap 334 relating
to what is termed a “Transmission on Death.” These are the applicable
provisions where landed property devolves to an heir. Section 68 of Cap
334 provides for dispositions and assents by legal personal representative.
The procedure for such registration is provided for under section 140,
which stipulates:

On the death of the owner of any estate or interest, his legal personal
representative, on application to the Registrar in the prescribed form and
on delivering to him an office copy of the probate of the will or letters of
administration to the estate of the owner, or of his appointment under
Part VIII of the Probate and Administration of Estates Act or the
Fourth Schedule to the Magistrates' Courts Act shall be entitled to be
registered as owner in the place of the deceased.

These transmissions are to be recorded under section 71 of Cap 334,

which gives the Registrar powers to do so. It is also of some significance

9
 “ORIGINAL”

to say that nowhere in the Land Registration Act, Cap 334, is there a
restriction against a transmission by operation of law in terms of section
68 of the said Act, against a non-Tanzanian. That is the law of the land as
I understand it.

As intimated earlier, and as correctly argued by both learned Counsel, Mr.

Zake for the Plaintiff and Mr. Kitainda for the Defendant, the dispute
before me does not relate to a grant of a right of occupancy. Neither
does it relate to an allocation of land. None of those is being contested
here. What is being contested is an intended bequest, a transmission by
operation of law of a property in the estate of the late Diana Artemis
Ranger. As I hope I have been able to demonstrate, the process of
acquiring title by inheritance is not a grant or allocation of land. It cannot,
therefore, be said to be restricted under section 20 (1) of the Land Act. It
was plainly not the legislature’s intention to place any such restrictions.

To conclude, therefore, I would give the following answers to the issues as

framed, and I hold, as follows:

i. That the Administrator General can legally bequeath the House on

Plot No. 648 Upanga, Ilala District, Dar es Salaam, registered under
CT No. 186172/28, L.O. No. 30616 and LD No. 71622 to Anastasios
Anagnostou, who is a Greek citizen and a beneficiary of the estate of
the late Diana Artemis Ranger, his sister in the light of the provisions
of the Land Act.

ii. That the said Anastasios Anagnostou (the beneficiary) can pass his
interest and have his share of estate as aforesaid transferred to
Emmanuel Marangakis who is a Tanzanian, his duly appointed
Attorney.

10
 “ORIGINAL”

iii. It is not correct, in the eyes of the law, to say that the only solution
is to dispose of the property and pass the proceeds to the
beneficiary or his Attorney

In the premises, I order that the Defendant Administrator General should

bequeath the suit property to the Plaintiff Anastasios Anagnostou, either
directly or through his duly constituted Attorney, in accordance with the
procedures laid down under sections 68, 71 and 140 of the Land
Registration Act, Cap 334.

With this holding, one may be tempted to argue that section 20 of Cap
113 likewise does not restrict sales and other transfers of existing rights of
occupancy to non-citizens since, like transmissions by operation of law,
they are neither grants nor allocations. However, that is a terrain I would
not venture into at this moment. In the words of the Court of Appeal in
DPP v Bernard Njavike (1988) TLR 18: “there is a place and season for
everything”.

As I said at the beginning, this is a case stated. The parties were simply
litigating for the legitimate purpose of obtaining an authoritative
interpretation of the law by the Court, there apparently being no previous
judicial guidance on the matter. I am therefore of the view that it is a fit
case for each party to bear its own costs. It is so ordered.

Dated at Dar es Salaam this 13th day of May, 2011.

Dr. Fauz Twaib

Judge
13th May, 2011

11
PROBATE, ADMINISTRATION OF ESTATES &
TRUSTS (LS 108) MODULE
TRUSTS
 Definition (key aspects):
Plain English:
• Confidence reposed on someone
• Moral obligation
• Enforceable according to the deed or equity
principles.

Courts have developed the legal parallel-

See: Re Scott (1948) SASR 193, 196

 Settlor

Trustee Beneficiary
Testamentary

Living
Basic Requirements:
Capacity
Presence of the 3 Certainties (words, subject
matter, object)
The necessary formalities
Trust must be completely created or be supported
by valuable consideration
Must not be intended to defraud creditors or
contrary to public policy
 •Name the Organization i.e The Registered Trustees
of…..

Need •Address
•Head Quarters

not be
•Objectives
•The Board of Trustes i.e. Composition and Tenure
•Powers & Duties of the Board

complex
•Meeting
•Finances
•Signature & Attestation
The Law:

 Trustees incorporation Act, Cap. 318.

 Trustees incorporation rules, GN. 165 of

1956

 Public Trustees (Powers & Functions) Act,

Cap. 31
Who May Apply? See Section 2 of Cap. 318
 Convicts of crimes relating to fraud and/or
dishonesty -not allowed [section 4, cap. 318]
 Persons adjudged to be bankrupt-not allowed
 If sole trustee, then must be resident (section
 When two or more trustees, then at least two
must be residents of Tanzania.
 Form T.I.1(Written, printed, typewritten,
English)
 Annexture “A”- Trustees particulars (CVs) x 4
+ 3 pp size photos for each trustee + IDs
 Constitution of the of the body corporate and
rules x 3 (in English).
 Recommendation from the Mtaa and WEO
 Recommendation from DC
 Minutes of the meeting that passed the
constitution and appoint the trustees
 Fee i.e tshs. 200,000/= currently

Funding:

 Transfer the properties from the settlor to the

trust (the law & procedure relating to transfer
of property shall apply)- Complete divestiture
is important

 Then;
 Trustees to run the entity
 Filing of annual returns
Makofi Tafadhali
…
Carpe Diem
…
1. Explain the advantage of creating a Living
Trust over Probate

2. Explain the duties of trustees incorporated

under Cap 318.

3. Mention the things that may invalidate a

trust
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 TOPIC 11 READINGS:
READ:
Hayton and Mitchell on the Law of Trusts and Equitable Remedies
Click the following link to download the book

https://b-ok.cc/book/3362667/e4cdec

Trusts Law by Moffat

Click the following link to download the book

https://b-ok.cc/book/843492/9790c5
PROBATE, ADMINISTRATION OF ESTATES &
TRUSTS (LS 108) MODULE

LST 30th Cohort

LST 30th Cohort
Definition:

An endowment or dedication in accordance

with Islamic law of any property within
Tanzania for religious, charitable or
benevolent purpose or for the maintenance
and support of any member of the family of
the person endowing or dedicating [Section
140 of Cap. 352]

LST 30th Cohort

(i) Capacity
 Sound mind (aqil)
 Age of majority (baligh)
 Free man/woman (hurr)
(iii) Right to make Waqf i.e title
(ii) Appointment of a trustee (Mutawalli)
(iii) Beneficiaries be specified in the deed
(waqfiah)

Read with S.140 of Cap 352

LST 30th Cohort

iv. Dedication must be permanent and for a
purpose recognized by Muslim Law.
Beneficiaries be Muslims

LST 30th Cohort

No Specific Form

LST 30th Cohort

 1. By an act of a living person (inter vivos) –
When a person declares the dedication of his
property for Wakf. This can also be done while
the person is on death bed (marj-ul-maut), in
which case, he cannot dedicate more than 1/3
of his property for Wakf.

LST 30th Cohort

2. By will –
when a person leaves a will in which he
dedicates his property after his death. Earlier it
was thought that Shia cannot create Wakf by
will but now it has been approved.
 the 1/3 restriction may also apply
depending on the sect of the Wakif.

LST 30th Cohort

3. By Implication –
when a property has been in use for the
charitable or religious purpose for time
immemorial, it is deemed to belong to Wakf.
No declaration is necessary and Wakf is
inferred.

LST 30th Cohort

 Irrevocability

 Perpetuity

 Inealienability

LST 30th Cohort

 Wakf Commission –Section 142
 Inquiry by the Wakf commission- Section 146
 Certain agreements not valid unless approval
of the Wakf commission is obtained- Section
148 ( cf. inalienability of wakf property).
 Power to dispose Wakf property- Section 151

Note: Waqf commission in Mainland Tz has not

been constituted yet.

LST 30th Cohort

 Rajabu s/o Marijani v. Hadiji s/o Saidi, (1967)
HCD 43; Saidi J.
 Hassan Matola Vs. Kadhi wa Msikiti wa Mwinyi
Mkuu
 Abdulla Bin Said Bin Hassan v Halima Binti
Said Bin Hassan and another
 [1957] 1 EA 688

LST 30th Cohort

 Held: (1) Absolute and permanent dedication
of wakf property by the wakf is necessary
for an effective wakf. (2) A wakf is conditional
and fails if it is only to take effect upon the death
of the owner, who continues to utilize and exercise
control over the property. (3) If one executes a
deed of wakf without the intention to divest
himself of ownership of the property, but rather to
immunize it from claims others might have against
him, the deed fails. (4) A wakf is generally to be
created by a separate deed rather than by will.

LST 30th Cohort

 the use of the word “wakf” in itself cannot
give rise to an implied gift in favour of the
poor;
 Illusory gift to the poor- waqf invalid.

LST 30th Cohort

A Wakf deed which does not disclose or give
effect to a genuine intention to benefit religion
or charity is no Wakf at all and must be
deemed to be void ab initio.
- Cf. Section 140 of Cap 352

LST 30th Cohort

Title
Date
Recitals
Dedication
Appointment of a mutawalli
Directions regarding the income
Powers, rights and obligations of the mutawalli
Signature (Wakif)
Acceptance (Mutawalli)
Attestation

LST 30th Cohort

… Good Bye!

LST 30th Cohort

 ASSIGNMENT 4

Mr. Suleman Bushiri has built a mosque located at Plot 34, Block G at Kibiti region and
called it Masjid Kibiti. He wants to give this mosque as wakf to God, so as it can be
used by people from Kibiti area and other neighboring areas to Kibiti. The statement of
the Wakf reads as follows:

“Mimi Suleman Bushiri nimeweka Wakfu msikiti pamoja na miti iliyomo ndani yake, kwa
ajili ya kutarajia thawabu kwa Allah ikiwa ni sadaka. Msikiti huo unaitwa „Masjidi Kibiti‟
uliopo wilaya ya Kibiti, Mkoa wa Pwani. Msikiti huu pamoja na miti iliyomo ndani ya
eneo la msikiti huo haiuzwi kwa yeyote wala kutolewa zawadi wala hairithishwi na mtu
yeyote hadi kiyama…

Mimi nimeandika haya nikiwa katika hali ya siha nzuri na akili timamu, nilivyovitoa
Wakfu vikiwa ni mali yangu”.

Unofficial English Translation:

“I, Suleman Bushiri, give the Mosque together with the trees around the same as Wakf
expecting to get refinement from Allah as part of my offering to him. The mosque is
called „Masjidi Kibiti‟ situated at Kibiti District, Coastal Region. The Mosque together with
the trees therein shall not be sold, given as gift or inherited to or by any person till the
end of the world…

I have written this Wakf with good condition and capacity and what as I have given out
as Wakf are my own properties”.

a) Mr. Bushiri has come to you as an expert advocate of wakf, he wants you to
assist him on how he can successfully give his Wakf to Allah.

b) Is there any alternative method in which Mr. Bushiri may use to help his society
on religion matters by giving the Mosque to the public?