The Law of Succession
The Law of Succession
The Law of Succession
ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. -1-
PART 1
A: EXISTING LAWS
2. STATUTE LAW
2.1 The relevant law is the Indian Succession Act of 1865, which was
made applicable to Tanzania by the Indian Acts (Application)
Ordinance, Cap. 2. Under section 24, a man is considered to die
1
Selection on Probate and Administration Chapter V.
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. -2-
(ii) Partial Intestacy – this may occur where only a part of the
beneficial interest is disposed of.
2.2 Where a person dies intestate such property devolves upon a wife or
husband or upon those who are of the kindred of the deceased.2
Succession to such an estate is effected according to the following
basic rules prescribed by the Indian Succession Act, 1865:
2
Section 26 of the Indian Succession Act.
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. -3-
2.3 The above rule also applies where the intestate is survived by no
children but grandchildren and great grandchildren. The deceased’s
father, mother, brothers and sisters, inherit only where there are no
lineal descendents surviving him. They share half of the estate where
there is a widow surviving. The husband surviving his wife has the
same rights in respect of her property, if she dies intestate, as the
widow has in respect of her husband’s property, if he dies intestate.3
2.4 The Indian Succession Act, 1865 does not apply to the estate of a
deceased Moslem. It applies to Christians and all those of European
origin. Illegitimate children are excluded from inheriting their fathers’
estate, but they may only inherit from the estate of their deceased
mothers.
2.5 The main consideration in this Law is the welfare of the deceased’s
immediate family members and dependants. The Law is more inclined
towards equality of division among the heirs of the same degree. It
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. -4-
does away with the distinction between male and female children of
the deceased. They inherit equal shares.
2.6 The Law does not make any distinction, as regards succession to
movable and immovable property provided that the said properties are
situated in the territory.
3
Section 43 of the Indian Succession Act, 1865.
4
Volume 2 No. 2 December 1988 Tanzania Law Reform Bulletin, p. 56, 2. The Declaration set out in
the First, Second and Third schedules … the areas subject to the jurisdiction of Chunya, Dodoma,
Kasulu, Kibondo, Kigoma, Kondoa, Manyoni, Maswa, Mbeya, Mpwapwa, Ngara, Njombe, Shinyanga,
Singida, Songea, Ufipa, and Ukerewe District Councils and to be binding upon Africans, to whom
the Local Customary Law relates. It was extended to many more areas.
5
Decision by Said, J. (as he then was) in Donald s/o Musa v. Tutito s/o Yonathan, [1967] HCD No.
118.
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. -5-
3.4 The main heirs of the decease estate are 10 in number; children (sons
and daughters), grand children, brothers, sisters and their children,
father, paternal uncle and aunts, husband or wife. Where the deceased
leaves a son or sons and daughters, they will inherit all of his property
exclusively.
(i) First degree heirs inherit first and get the biggest share of
inheritance. Normally the first son from the first house is the
heir in the first degree.
(ii) Second degree heirs include all other sons and they inherit a
bigger share than daughters who are normally heirs in third
degree.
(iii) Third degree heirs are normally the daughters of the deceased.
Their share of inheritance is normally smaller than the heirs in
the other two degrees. Where the deceased leaves no sons that
the daughter of the first house will be the heir in the first
degree.
3.6 Rules 27 and 28 provide that a widow has no share in her husband’s
estate if there are issues of the union and the husband cannot inherit
from his wife who dies intestate, unless the wife left no children or any
member of her own family.
3.7 Distribution of property among heirs in the second and third degree is
effected according to their ages. The older one gets more than the
young ones. Males get bigger share than females irrespective of their
age.
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. -6-
3.8 Illegitimate children are excluded from inheriting their fathers’ estate,
but they will inherit from the estate of their mother who dies intestate.
Furthermore illegitimate children will only inherit if legitimized in the
second degree if they are males and in the third degree if they are
females. However illegitimate children will also inherit where there is a
will of the deceased father.
3.9 Where the deceased left no children or grand children his full brothers
and sisters will inherit in the first degree, second brother in the second
degree and all the sisters will inherit in the third degree.
3.10 Under the Local Customary Law Declaration Order, No.4 (1963) males
inherit movable and immovable properties absolutely, but females
inherit immovable property only for their use during their life time.
They cannot sell such immovable property unless there are no male
members in the family. However, the High Court of Tanzania in the
case of BERNADO EMPHAHIM VS. HOLARIA PASTORY AND
GERVAZI KAIZIREGE (PCC) Civil Appeal No. 70 of 1989 (unreported
Mwalusanya J., declared this custom as being discriminatory and
unconstitutional. It is noted that the situation now obtained in urban
areas is different because of the existence of acquired property
(leases).
3.11 Rule 24 provides that where the deceased person has distributed part
of his estate inter-vivos (while he is living) this portion will be taken
into account during distribution after his death. The Local Customary
Law (Declaration) Order, 1963 (Law of Persons) GN. 279 of 1963
provide that the widow is asked to choose whether she wishes to live
as a wife with one of the deceased husband’s relatives. If she refuses
the offer, no bride wealth is to be paid back and she is free to return to
her relatives. On the other hand Rule 77 (1) (Law of Persons)
provides that a childless widow is entitled to ½ of the property acquire
during her married life with the deceased after the debts of the
deceased have been repaid. In practice this is never put into effect.
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. -7-
4. ISLAMIC LAW
4.2 In the case of small estates, in terms of S.19 (a) of the Administration
(Small Estates) Ord. Cap. 30, in the case of the administration of the
estate of an African Muslim, it is not Islamic Law, which will apply in all
cases. For Islamic Law will not apply in the following circumstances:-
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. -8-
5. HINDU LAW
Hindu Law of Succession/Inheritance, that is the Hindu Wills Act, 1870, was
imported to Tanzania (Mainland) through the Indian Laws (Application)
Ordinance (Cap. 2) and made to apply to the Hindu Community. However,
the paramount difficult in the application of Hindu Law of
Succession/Inheritance is its limited applicability within the Hindu Community.
So far there are no known court cases on the subject in the country.
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. -9-
1.2 It is noted that the problems of internal conflicts and choice of laws
was much less during the Colonial period as is the case with post-
independence period and as is the case today. As found by the Kenya
Commission of Enquiry on the Law of Succession where the people
have much in common with the people of this country in their socio-
economic changes, this Commission is of the view that the
interrelation of conflicts has arisen because of the gradual intermixture
of Tanzania people, both on intertribal and inter-communal basis, with
urbanization and intermarriages, women involvement in economic
venture along side with their spouses outside clan, ethnic or religious
affiliation, the integration of Courts, etc. Apart from the above general
criticisms, there are defects within each system of law of
Succession/Inheritance as shown below:
1.3 The Indian Succession Act, 1865 is basically codified English law. It is
an old piece of legislation which was imported to Tanzania (Mainland)
from India as it was in India in 1907. While in India, the Indian
Succession Act, 1865 has undergone a number of amendments and
modifications, this has not been the case with the one in Tanzania.
1.4 The provisions of the Indian Succession Act 1865 differ from those
under the English law today. The Act provides for freedom of
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. - 10 -
1.6 There are as many Customary laws as there are tribes and modes of
Succession/Inheritance despite the codification by Local Customary
Law (Declaration) Order, (No. 4) of 1963/1963) which codified rules of
inheritance and will of the patrilineal tribes of Tanzania (Mainland).
1.8 As regards the question of choice of law, two tests have been
established. These are:
1.10 The case of RE INNOCENT MBILINYI, deceased [1969] HCD No. 283
illustrates how this test is applied by courts. The deceased was a
Ngoni married to a Chagga woman under Christian marriage rites.
Both were staying in Dar es Salaam. The deceased had left Songea
when he was still of tender age, about 7 years. He was educated
outside Songea till he graduated with Bachelor of Arts Degree. Both
rarely visited Songea or Moshi. They had three children of the
marriage. Innocent died intestate and the matter was brought before
the High Court to determine which law was to apply in the
administration of deceased’s estate. The widow argued that statutory
law should apply in administration of the deceased estate so that she
could benefit. On the other hand the brother of the deceased argued
against application of the statutory law instead advocated for the
application of Ngoni customary law in which case the widow would get
nothing out of the estate. In the High Court, Georges, C.J. (as he then
was) held tht: “the deceased had abandoned the customary way of life
in favour of what may be called a Christian and non-traditional way.
There is satisfactory evidence that he was to a large extent alienated
from his family and that his children had no connection whatsoever
with them.” Therefore statutory law was held to apply.
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. - 12 -
1.12 However in the case of ABDALLA SHAMTE VS. MUSSA [1972] HCD
No. 9, a presumption is made to the effect that in the case of an
African living in the villages or rural areas, the law applicable to the
administration of his estates is Customary Law rather than Statutory
Law.
Therefore the thinking that, when one dies professing Islam, then
Islamic Law will automatically apply in the administration of his estate
is erroneous. For African Muslims preference will be given to Islamic
Law, unless the deceased is a Swahili. A Swahili is defined to mean,
the Bantu people inhabiting Zanzibar and adjacent Coasts, Kiswahili
being their language.
1.14 This test under section 19(1)(a) of the Administration (Small Estates)
Ordinance Cap. 30 will only apply to small estates where Probate and
Administration Ordinance, Cap. 445, also applies. Even if an estate in
question does not fall under the ambit of this provision the same test
will be applied through judicial precedents and the Judicature
Application of Law Ordinance. This was the position in the landmark
case of RE ESTATE OF THE LATE SULEMAN KUSUNDWA [1965]
E.A. 247.
1.15 In this case the deceased was a Nyamwezi by tribe and married the
applicant in this suit (one of the four wives of the deceased) according
to Islamic Law rites. The applicant was excluded from the “Will” of the
deceased who purported to leave the entire estate to his nephew. For
the applicant to inherit from the deceased’s estate entirely depended
upon which law was applicable in the circumstances. The wife was
contending that Islamic law did apply and the Administrator General
was contending that it was Nyamwezi Customary Law that was
applicable.
Sir Ralph Windham, C.J. found it as a fact that this case did not fall
under the ambit of section 19(1)(a) of the Administration (Small
Estates) Ordinance Cap.30 and so he resorted to judicial authorities on
choice of law. In this exercise he came to an agreement with the
conclusion of Spry, J. in the case of HUSSEN MBWANA VS. AMIRI
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. - 14 -
Sir Ralph Windham added that, it cannot be held that while the rights
of an African Moslem wife at and during her marriage are to be
governed by Muslim law, her rights of inheritance upon her husband’s
death are to be governed by her tribal custom, which may give her no
such rights.
1.16 The status and rights of a wife after her husband’s death must be
governed by the same corpus of law as governed then before his
death. Her rights of inheritance are bound up with her right, or the
comparative lack of them, during the matrimony, and are in the nature
of counter-balance or safe-guard to her when she looses her protector.
He held that law to be applied in the distribution of the deceased’s
estate is a Muslim law.
1.17 In another case, in the matter of THE ESTATE OF THE LATE SALUM
OMARI MEREMI [1973] LRT No. 80, the deceased was Hehe Moslem.
He was an army Officer. He married a member of his own tribe and
contracted a Civil marriage. He was a practicing Moslem – Justice
Mfalila held that applying mode of life test (that he was a practicing
Moslem) the deceased has intended his estate to be administered
according to Islamic Law and not Hehe Customary Law, as the
deceased’s manner and way of life was far removed from his tribal
customs.
irrespective of their age and ability to care for the family. In fact, in
some tribes, where, besides the daughters, there are also sons
surviving the deceased, the daughters are denied in toto such right of
inheritance. Further, in other tribes it is only the senior-most son who
would inherit the whole estate supposedly in trust for the other
children.
1.20 The rights of female heirs to landed property under Customary Law are
limited to use for life6 and not disposition. The position is not in
accordance with the provisions of the Constitution of the United
Republic of Tanzania, 1977 (as amended by Act 15 of 1984) nor the
provisions of the Law of Marriage Act, No. 5 of 1971 which recognized
equality of right to acquisition, ownership and disposition of property
irrespective of gender.7
1.21 Under Customary Law the inheritable property may refer to clan land
usually situated in rural areas. This law has been extended to apply to
movable and immovable properties obtainable in urban areas whose
acquisition might have involved the joint efforts of the spouse in their
joint lifetime.
6
On a widow’s right of residence see Scholastica Benedict v. Martin Benedict, Civil Appeal No. 26
of 1988 C.A. (unreported).
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. - 16 -
1.24 Under Islamic Law, a non-Moslem is not entitled to inherit the estate
of a deceased Moslem even where for example a Moslem is married to
a non-Moslem wife. A Moslem cannot inherit from a non-Moslem by
birth. Illegitimate children have no entitlement to inheritance.
1.25 There are fixed and unfixed shares of inheritance which are gender
based (that is while daughters are entitled to half sons would get one
whole and widows are entitled to of the total estate of the deceased
irrespective of their contribution or number). Where the degree of
relationship is equal then the male member takes double the share of
the female member. There are various schools of thought within
Islamic Law for example Shiete, Sunni etc.
7
Section 56-60 of the Law of Marriage Act and Report by the Kenya Commission on the Law of
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. - 17 -
High Law is the Law applicable mainly to Wills of persons who profess
the Hindu religion. However the law applies in certain cases to those
of such descendants who have not abjured that religion.8 By virtue of
the Indian acts (Application) Ordinance (Cap. 2) Hindu Law is
applicable in Tanzania, as is the case in Kenya.9 The Hindu Succession
Act of Kenya defines the term HINDU LAW as “the Law relating to
Succession adopted by any school or sub-school of Hindu Law.”
(i) The Indian Succession Act, 1865, was originally applied to the
East African Protectorate by the East African Order in Council,
1897, without any exception for testamentary succession to the
property of Hindus, Mohammedans or Buddhists, and S.50 of
the Act requiring attestation continued to apply by virtue of the
application to the Protectorate of the Hindu Wills Act 1870,
(ii) The effect of the application of the Hindu Wills Act, 1870, to the
Protectorate was, on the one hand, to apply to the Wills of
Hindus, Jains, Sikhs and Buddhists in East Africa the rules for
the execution, attestation, revocation, revival, interpretation
and probate contained in those sections of the Indian
Succession Act, 1865, which were enumerated in S.2 of the
Hindu Wills Act, 1870, while, on the other hand, exempting
intestate or testamentary succession to the property of any
(iii) In accordance with S.50 of the 1865 Act attestation of the Will
of a Sikh made in Kenya affecting property situate in Kenya is
necessary and accordingly exhibits “B” and “D” were not Wills.
This case illustrates the criticism touching on the Hindu Law. What
emerges from this case is that section 30 of the Indian Succession Act
1865 lays down the rules for attesting Hindu Wills and was originally
applied to the East African Protectorate by the East African Order in
Council 1897, without any exception for testamentary Succession to
the property of HINDU, MOHAMMEDANS AND BUDDHISTS. Equally
Section 50 of the Indian Succession Act of 1865 continued to apply by
virtue of application to the Protectorate of the Hindu Wills Act 1870.10
9
Section 3(1) of the Hindu Succession Act Cap. 158.
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. - 19 -
quoted above, which has been cited as an authority in all the countries
making up East Africa, the Commission has not been able to find any
other case on the matter under reference.
10
Vide – Charan Singh Chadra and Another virtus Mohinder Singh Chadha and ORS 1961 EAA 637.
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. - 20 -
PART 2
RESEARCH FINDINGS
1.0 UNIFORMITY
1.2 Supporters of the unification of the Law of Succession propose that the
process should take into account good customary rules that now exist
and are accepted by various communities as well as rules of
inheritance which are more open and accessible to many people.
1.3 However, a view was expressed from Pangani District rejecting the
proposition of unification because if all rules of inheritance including
those of Muslim community, which are regarded to be part of the
Quran are put together, this will open a flood gate thereby flouting the
fundamental principles of Islam.
1.4 Research findings from Mbeya, Rukwa, Ruvuma, Iringa and Morogoro
regions point to the fact that scattered laws on inheritance bring about
uncertainty in the application of the laws. The majority views are that,
only unification of the laws of Succession/Inheritance could do away
with the problems of uncertainty, which brings about confusion and
choice of law.
1.7 The research findings in Lindi and Mtwara regions are divided on
whether or not there should be a uniform law of succession for the
purposes of bringing about equality among Tanzanians regardless of
gender, religions and custom. The other position favours the idea of
having more than one law of succession especially having regard to
freedom of worship that is Islamic religion as well as recognition of the
role of customs and traditions in our societies.
1.8 The research findings in Tabora and Shinyanga regions supports the
idea of unification of the scattered laws of inheritance so as to bring
them under one umbrella like the Law of Marriage Act No. 5 of 1971;
with the convert that the Islamic law of succession should be
reproduced from the Koran with its Arabic text.
1.9 However, further research has revealed that the people in these two
regions who are predominantly Wasukuma and Wanyamwezi are
traditionalists hence still heavily influenced by their customs and
traditions. They still believe that there is nothing wrong with their
Customary Law in Inheritance, though they are willing to abolish some
of their outdated customs.
1.10 In Mara and Mwanza regions, research findings show a divided opinion
on the idea of having a uniform law of succession. One position
favours a uniform law of succession with the abolition of customary
laws and traditions; whereas the other favours the retention of the
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. - 22 -
(iii) Views have been further expressed that, if the unification of the
laws of Succession/Inheritance is to be successfully undertaken,
then it must proceed from first recognition of the existing laws,
second, reform of certain aspects of such laws which are
inconsistent with the provisions of the Constitutions and third,
harmonize those aspects of laws which are at variance;
2.1 In Mara and Mwanza Regions, research revealed that there is divided
opinion among the people surveyed on whether female children should
be given the right to inherit equally with the male children. One
position favours equality in inheritance except clan land as well as
acquired land, for fear that such property could be transferred to
another clan. It was also suggested that the distribution of property
should be made according to age, i.e. the young ones should get more
than the older ones. The other position does not favour inheritance by
females. However, according to the Kurya customary law and
traditions, an unmarried female can inherit where there are no male
children.
2.3 In Singida and Dodoma Regions, apart from the senior most surviving
son being entitled to inherit immovable property of the deceased’s
father in trust for other children (if any), views were expressed that,
as a matter of justice, there should be distribution of the rest of the
estate of movable property, on equal basis among all the surviving
children. However, it was further suggested that the surviving children
should be free to appoint anybody else among themselves to inherit in
trust for them if the senior most surviving son is found incapable of
inheritance. And that upon sale of such property the proceeds to be
shared on equal basis.
2.5 In Mbeya, Rukwa, Ruvuma, Iringa and Morogoro Regions, the majority
views expressed favoured the abolition of discriminatory practices
among children. However, the Moslem community reiterated the fact
that the Quran teachings should be abided by the letter in matters of
succession. In Chunya district, the majority of people interviewed
admitted that, it was unfair at this particular time in history to
discriminate children in matters of inheritance only because of their
sex, because parents do toil in life to acquire property for the benefit
of all children.
2.7 In Tabora and Shinyanga regions, research has revealed that custom
and tradition among the Wanyamwezi and Wasukuma still have a big
influence because many people believe that there is nothing wrong
with their customary law of inheritance although the abolition of
outdated customs and traditions was proposed. A case in point is the
discrimination of female children on inheritance simply because they
are expected to get their share of inheritance through marriage.
However this position is negated by the fact that the wife was not
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. - 25 -
3.2 In Mara and Mwanza regions, research findings show a divided opinion
on whether or not children born out of wedlock have right of
inheritance. One position favours the right to inherit by children born
out of wedlock provided there is period recognition by the deceased
family members or legitimization has taken place. Nevertheless the
distribution should be based on the productivity, loyalty or a set down
percentage, such as or ¼. The other position disallows inheritance
11
The Court of Appeal of Tanzania in Violets case insists on written Wills. In the Estate of Bruno
Kahangwa: Administrator General’s Cause No. 3 of 1987 Initially probate and Administration Cause
No. 12 of 1987 (unreported) Dar es Salaam High Court; and Violet Ishengoma Kahangwa and
Others v. The Administrator General/Endosia Kahangwa (Mrs.), Civil Appeal No. 17 of 1989
(unreported).
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. - 26 -
3.3 In Mtwara and Lindi Regions, opinion was expressed on the following
divergent views:
(i) Children who are born out of wedlock are faultless/ innocent
hence they should not be denied the right to inherit from their
deceased father. The Government was argued to ensure that
everyone enjoys equal rights.
3.4 The research findings from Singida and Dodoma regions revealed that,
children born out of wedlock and introduced to and accepted by the
members of the family of the deceased should be entitled to a share in
the estate of their deceased father equal to those children of lawful
marriage. Most of the people interviewed shared the view that
children whose births have been kept secret by the deceased father
and remain unknown to the deceased’s family could only have an
equal share with other children provided that the deceased’s partner
produces a birth certificate signed by the putative father together with
his passport size photograph. On this point, however, the majority of a
group of women interviewed in Mpwapwa district objected to give any
share of the alleged deceased father’s property to these children
despite the evidence to certify that the deceased was a putative
father, on the ground that such children are normally given much
more property by the putative father.
4.1 It is the customary law principle among the Bahaya that the clan
interests must be protected for the benefit of members and not for the
benefit of outsiders. Since women leave their families on marriage
and accompany husband who belong to different clans, it is a common
fear among the Bahaya that if females are given the right to inherit
the clan property, there are great chances that they may transfer clan
(land) property to strangers. There is a traditional Bahaya saying that
“A female was born looking outside her family/clan, whereas a male
was born looking inside the residence.” In other words, a woman is
simply considered an “outsider” in so far as clan property interests are
concerned.13 This position is also illustrated by a number of decided
cases both by the High Court and the Court of Appeal14 with the
exception of such cases as have been decided by the same courts after
the enactment of the Bill of Rights in the Constitution.15
12
Violet Ishengoma Kahangwa & Other v. The Administrator General and Mrs.
Endokia Kahangwa, Civil Appeal No.17 of 1989 (unreported). Should only inherit
from their mother’s share.
13
“Outsider” means a member of a different clan (a married woman/widow) see
Peter S. Rugarabamu v. Constantine Kiiza (MZ) (PC), Civil Appeal No. 76 of
1987 (unreported).
14
Boniface Mhigi v. Philimon Mhigi, [1967] EA 38 at 66; Deocres Lutabana v.
Deus Kashaga, Civil Appeal No. 5 of 1981 (unreported) now it appears in
[1981] TLR 122 (CA); Pastory Ijupo v. Winifrida Kailu & Felician Bigambo,
(PC) Civil Appeal No. 35 of 1985 (unreported) Mwalusanya J. which cited
Deocres Lutabana v. Deuse Kashaga, [1981] TLR 122 (CA) Exceptions are
such cases as Ngundwa & Two Others v. Ibrahim Hassan, (PC) Civil Appeal
No. 160 of 1986 (unreported) in which Katiti J., maintained that “where a
deceased husband leaves no heir or relative the widow has absolute rights of inheritance
and vice versa.
15
In Bernerdo Ephrahim v. Holana Pastory & Gervasi Kaizilege, (PC) Civil Appeal No. 70 of 1989
(unreported) Mwalusanya J. attempted to construe rule 20 of the GN 436/1963 in the light of the
constitutional amendment brought about by Act 15 of 1984. But in Baspari Lutagwerera v.
Samson Lutoha, Civil Appeal No. 278 of 1990 (unreported) Lugakingira J. cautions
that one must consider the rationale of patrilineal orientation to inheritance.
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. - 29 -
4.2 Under S.114 of the law of Marriage Act 1971, where marriage comes
to an end by divorce, spouses are entitled to an equitable share of the
matrimonial property that has been acquired through their joint effort
during the marriage. However such property interest of the wife is not
at all protected when the marriage comes to an end upon the death of
the husband. This, as we have noted earlier, is because of the
restrictie provisions of the customary law and Islamic law.
For jointly acquired property husbands have always had an upper hand
in its management, except some few families which have adopted a
Western way of life. It was further noted that when a wife dies, there
is no controversy because a woman is considered to have neither
testamentary powers nor wealth of her own. However when a
husband dies, the question as to who should inherit the deceased’s
property become very crucial, particularly for those who still adhere to
16
A widow has no right of residence and this as found in the decision of the Court of Appeal in
Scholastica’s case even though under rule 27 of the GN 436 of 1963 there is a limited protection
accorded to a widow.
17
Contrary view is found in Masunga Musobi v. Ndege Lukuba, (PC) Civil Appeal No. 67 of 1984,
(unreported) Mwalusanya, J.
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. - 30 -
4.4 The position in Tanga, Arusha and Kilimanjaro regions is that, there is
a need to enact a law which will give and guarantee a widow a share
of her husband’s estate when he dies.
4.5 In Sumbawanga district, it was proposed that, the right to inherit the
deceased person’s property should be limited to family members, that
is the surviving spouse should be left to develop and manage the
family property without interference from other relatives because they
too have their own families and property to take care of. This point
was reiterated in Mbeya, Ruvuma, Iringa and Morogoro regions.
4.10 Equally the husband should have the right to inherit up to 50% of the
deceased wife’s property. However in some case the right to inherit is
conditional upon the widow accepting to remain permanently at the
deceased’s home.
4.12 The other position is to the effect that because of payment of dowry,
the wife/wives cannot inherit. It further disallows inheritance by
widow/widows for fear that the property could be transferred to
another family, although widows could be appointed as trustees on
behalf of the surviving children.
18
Little is known about matrilineal communities as evidenced in Donald s/o Yonathan [1967] HCD
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. - 32 -
4.13 In Singida and Dodoma regions, research has established that the
proposed law of succession should protect the property interests of the
wife over the wealth acquired through joint efforts with her husband.
Also when the wife dies, her self acquired property should subject to
probate and administration proceeding, except for the Muslim couples
when the husband dies, the Islamic Law of Succession should apply.
4.14 Where upon death the husband leaves behind immovable property,
such as residential house(s), the position is that, the surviving wife or
wives should inherit that property for life in trust for the surviving
children, unless she remarries then property would revert to the
children.
4.16 In all regions members of the public from the Islamic community
strongly protested against the application of the intended reforms to
the administration of estates of deceased Moslems on the ground that
would be interfering with the Quranic rules of inheritance, which are
GOD given and therefore immutable.
5.1 Property grabbing upon the death of the husband has been found to
exist in all the regions visited in Tanzania Mainland. The practice is
done by greedy and unjust relatives of the deceased immediately upon
death. Both the widow and the surviving children fall victims to the
practice.
5.2 Research findings reveal that the problem is causing a great concern
to each and sundry. It has been proposed that machinery should be
PART 3
WILLS
1.0 INTRODUCTION
2.1 There are differences of definitions on Wills. The Hindu Wills Act 1870
which was made applicable to Tanzania (Mainland) by the Indian Acts
(Application) Ordinance, Cap. 2 defines a Will as:
2.2 All in all, there are two distinctive meanings of the word “Will”. The
first is metaphysical, and denotes the sum total of what a testator
wishes or wills to happen on his death. The second which is physical
and more common denoting the document or documents in which that
intention is expressed. Professor Mellows21 sums it all in the following
statement:
20
Abbas Mithain, Islamic Wills, the World Federation of K.S.I. Muslim Communities Stanmore Middix
1994 at p. 16.
21
Mellows, A.R. The Law of Succession, 4th Edition, 1983.
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. - 36 -
(v) A Will takes effect on the death of a testator, and until the
testator dies, heirs have no interest in the estate of the
testator.
3.1 Wills under statutory Law are governed by the Indian Succession Act,
1865 which was made applicable by the Indian Acts (Application)
Ordinance Cap. 2. Under statutory law Muslims are excluded from the
application of the provisions of this law. It does not even apply to
Africans who are non-Christians.
3.2 Under this law any person who has attained 18 years of age and
above, of sound mind, may dispose of his property by Will. A married
woman is also free to dispose of by Will any of her property which she
is capable of alienating during her life time. Nevertheless a person
who is insane may make his Will during an interval in which he is lucid.
A Will which is proved to have been made by a testator while he was
of unsound mind will be rendered defective.
(i) “The testator shall sign or shall affix his/her mark to the
Will, or it shall be signed by some other person in his
presence and by his direction.
3.4 Under section 82 a testator may bequeath all of his estate to any
person he wishes to unless it appears from the Will that only a limited
interest was intended to pass to such a person. The testator may take
a conditional legacy and until such conditions are met a legatee cannot
inherit under the will, but a bequest made with an impossible condition
or fulfillment which will be contrary to law or morality is void.
3.5 Section 125 provides that, where a bequest is made absolutely or for
the benefit of any person, but the Will contains a direction that the
bequest should be enjoyed or applied in a particular manner the
legates shall be entitled to receive that legacy as if the Will had
contained no such direction.
3.6 An executor of a Will may also inherit under the Will. Before he takes
the legacy he must first prove the Will or otherwise manifest his
intention to act as an executor of the said Will.
4.1 Customary Law Wills are also governed by the Local Customary Law
(Declaration) Order, 1963. According to this declaration, any person
of the age of 18 years and above of sound mind is free to make a Will.
It may be a written or oral Will. On making a Will, the testator may
appoint his own witnesses to such a Will and they must all be present
at the same time when the will is made and attest in the presence of
each other. Among the witnesses the wife or wives of the testator
staying at home at the time of making of such a Will must also be
present and attest to the Will.22 Absence of the wife or wives will
render the Will to be defective as it was decided by Justice Seaton.23
4.2 People benefiting from the Will are disqualified from becoming
witnesses to the Will except the wife or wives of the testator. A
written Will must be written by a permanent ink and preferably should
be printed or typed. The date of the writing of the Will must be clearly
shown on it. A written Will must be witnessed by witnesses who know
how to read and write. If the testator knows how to read and write,
the number of witnesses required is to (one from the clan and another
from elsewhere). If the testator is illiterate then the number of
witnesses required is four (two form the clan and two from elsewhere).
4.3 The testator must put his signature on the written Will if he is literate
and if he is not then he should affix his right hand thumbprint on the
Will.
4.4 A written Will may be registered and deposited in Court. An oral Will
must be witnessed by four witnesses; two clan members and two from
elsewhere. If all the witnesses die before the testator, the Will cannot
take effect and the property will be distributed according to the
intestate succession rules. If two of the witnesses die and other two
are still alive, the Will will be followed.
22
Rule.
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. - 39 -
4.5 Rule 28 provides that a testator may give all of his property without
necessarily mentioning every item that he will have at the time of his
death. Under rule 31 of the rules regarding Wills, one may be
deprived of his right to inherit by the testator on the following reasons
considered as grave:
(i) if the heirs has committed adultery with the testator’s wife;
(iii) if the heir without any justifiable reasons, failed to look after
the testator in hunger or in sickness.
5.1 Under Islamic Law, a Will has no special formal requirement. It may be
oral or written but whatever form it is, must always be proved by
witnesses.
23
John Lwehabura vs. Edward s/o Lwahabura [1968] HCD 358.
24
Quran s.v. 106, also in a case of Mohamed Thabit Ali Maktari v. Rageh Mohamed Saleh Maktari
and Others [1966] EA (Sir Clement de Lestang, AG Vice President was of the same view.
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. - 40 -
5.4 Justice Wicks in the same case went on to observe that, disposition of
unwillable may be done by the Will of the testator as long as they
follow Islamic Law principles, otherwise the testator cannot and the
court will regard them as being void. He gave an example of payment
of funeral expenses and deceased’s debt which will have to be paid
before the testators’ estate is distributed. Thirdly, taking an oath is an
important element on the part of a witness to a bequest by Will,
especially on an Oral Will (Sura v. 106). In Islamic Law of Succession
the Will is an exception rather than the rule because the Quran has
laid down the basic provisions of inheritance.
25
Administrator General Zanzibar v. Nassor Bin Fazil Bin Nassor and Other [1957] E.A. 159.
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. - 41 -
6.2 In Mbeya, Rukwa, Ruvuma, Iringa and Morogoro regions, the practice
of writing Wills was commended with the emphasis that family
property be left to be enjoyed by family members and that
confidentially pertaining to Wills be safeguarded.
6.3 In Tenga, Arusha and Kilimanjaro regions it was suggested that there
is a need for making unified rules on Wills. That all Wills should be in
writing, and only in exceptional cases that Oral Wills should be
allowed. A proposal was made to the effect that a testator should not
be allowed to dispose of all of his property/estate by Will, without
making provisions for his nearest relations/dependents. The majority
view was that one should not dispose of his estate by Will to the
extent of only. On the question of witnesses on the making of a Will
it was proposed that one of the witnesses must be a close relative of a
testator for the purposes of ensuring credibility among the
beneficiaries/relatives.
26
Muzera (minor) v. Nazarali Jiwa, [1966] EA 177.
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. - 42 -
6.4 Research finding in Mtwara and Lindi regions, revealed that, the
majority of people interviewed support the idea of having written Wills
as opposed to Oral Wills to avoid fraud and misrepresentation. Equally
they proposed to have uniform rules regarding Wills, to the extent that
the testator will not be allowed to dispose of all his estate and the
need to preserve the secrecy in writing of Wills by excluding the
presence of any witness.
6.6 The problems arising from Will relate to diversity of laws, Legal
systems and administration in the following manner:
(i) Very few people leave behind Wills. Some people believe
that when one writes a Will, he is inviting his own death.
(ii) The few written Wills more often than not have been found
by courts to be defective and have thus been declared void.
In many cases such Wills are badly executed.
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. - 43 -
(iv) With the exception of Wills under Islamic Law, one may give
away his property without taking into account the needs
and welfare of his family and dependents. This position is
considered unfair.
(i) It has been argued that if Wills are properly applied, they
may solve most of the problems encountered in cases of
intestate succession.
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. - 44 -
(ii) Save for Wills under Islamic Law, one may bequeath all his
property to any one he chooses and in a manner he feels
appropriate. One may bequeath his property to persons
who otherwise are excluded from inheritance when he dies
intestate such as concubines, illegitimate children,27 friends
etc.
(iii) Through the Will one may make equal distribution for the
estate among his male and female children in disregard to
seniority of children as is prescribed for by the Local
Customary Law (Declaration) order, 1963.
(iv) One is free to choose under which legal system one may
make his Will depending upon ones wishes as to how one
would like ones property to be distributed.
(vi) The Will cuts across tribal (Customary Law) and religious
boundaries on distribution of the deceased’s estate.
(vii) The Will cuts across the patrilineal and matrilineal lines of
succession.
27
See Footnotes 11, 12 in which the Court of Appeal reiterated that by writing a Will the deceased
person would continue to execute his moral obligations to such children.
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. - 45 -
PART 3
(ii) Small Estate whose value does not exceed ten thousands
(10,000/=) shillings are governed by the Probate and
Administration Ordinance. If it is an estate belonging to a
deceased Native, the law governing such an estate is
Administration (Small Estate) Ordinance.
1.6 The Magistrates Courts Act, 1984 governs administration of all estates
whose law applicable is Islamic Law or Customary Law. The Probate
and Administration Ordinance applies to all estates of persons dying
while domiciled or leaving property in Tanzania (Mainland).
(a) that the deceased had made a Will bequeathing his estate or
part thereof and has omitted to appoint an executor; or
2.1 Research findings revealed that the prevailing practice is for one or
more of the heirs to the estate, (mostly children or relatives of the
deceased) to apply for the letters of Administration. They are
appointed as joint administrators of the estate with equal powers to
deal with the estate. This practice has raised a wrong assumption that
the one named in the letters of administration is the sole beneficiary of
the deceased’s estate.
2.2 It has been argued by some people that the procedure set under the
Probate and Administration Ordinance is lengthy and cumbersome. To
follow that procedure one has to fill up to several forms and most of
them require an assistance of a legally trained mind to fill them up
and a lawyer to attest. All this process requires both time and money.
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. - 48 -
2.3 A deceased family has often to endure all the inconvenience procedure
to go through a lengthy procedure such as that set out under the
Probate and Administration Ordinance simply to find a fit and
competent person to administer the deceased’s estate. A wrong
choice of an Administrator may lead the family into a disaster. As it
has been stated before it is being emphasized at the risk of repetition
that there is gross misconception among the chosen administrators,
who believe that when letters of Administration are given to them,
then the deceased property belongs to them. On the contrary,
Administrators and Executors of the deceased’s estate are required to
administer and distribute the deceased’s estate even if they are also
entitled to benefit from the estate as heirs. This misconception has not
yet been cleared although of late some attempts have been made by
the High Court of Tanzania (Mainland).28
2.4 The Probate and Administration Ordinance and the Magistrates Courts
Act provide for two safety nets:
2.5 It has been observed that if the relevant provisions were followed and
enforced by the people on one hand and the courts on the other, most
of the problems emanating from maladministration of the deceased’s
estate could have been avoided. What is the functions of the court
28
Chiku Salum and Hamisi Simba vs. Iddi Omar, (PC) Civ. App. No. 53 of 1990 (unreported).
29
5th schedule Part II Magistrates Court act, 1984 as well as section 103 of the Probate and
Administration Ordinance, Cap. 445.
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. - 49 -
2.6 However, since the provisions both in the Probate and Administration
Ordinance as well as in the Magistrates Courts Act have articulated the
respective roles to be played by the courts the courts should not shy
away from their clearly spelt responsibility.
2.7 Evidence shows that there is another problem, which causes confusion
among people who wish to go to court on matters of administration. It
is the indecision as to which court the matter should be referred.
2.8 The nearest court for many people is the Primary Court and that may
explain why many of the administration cases are filed in this court.
Unfortunately this court has limited jurisdiction. The Primary Court will
only entertain administration cases, where the law applicable to the
administration or distribution or the succession to the estate is
customary law or Islamic law. This limitation of jurisdiction of Primary
Court has greatly affected deceased’s estate in the urban areas where
property developed on registered landforms part of the estate.
2.9 There are many cases where District Courts have overruled decisions
of Primary Courts to entertain administration cases, which include
property on registered land on the ground that the Primary Courts
have no jurisdiction to entertain such cases. The District Court which
is next nearest to the people have no comparable original jurisdiction
on matters of Probate and Administration. The Resident Magistrates
Court and the High Courts are far from the ordinary people
geographically as well as financially. This observation has been
30
supported by Justice Mfalila.
30
Manungwa Lutalamila and Others vs. Martha Lutalamila, [1982] TLR 98 (Mwanza).
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. - 50 -
2.11 Where a person of such calibre is difficult to come by from within the
deceased family or clan, one should not hesitate to appoint an
administrator who is not a member of the deceased’s family or clan
provided he/she is a fit and competent person. Courts may also assist
on the choice of an administrator. When examining the would be
administrator if courts are in doubt on the competence of the applicant
they are free to reject him or her and advise the family to choose
another person.
Under the existing laws where there is no fit person among those related to
the deceased to be appointed as an executor or administrator of the
deceased’s estate, one may appoint any of the following persons, public
institutions to be an executor or administrator of the deceased’s estate:-
PART 4
1.0 Research terms visited Morogoro, Iringa, Mbeya, Ruvuma, Rukwa, Tanga,
Arusha and Kilimanjaro regions specifically to meet and discuss with members
of Women Economic Groups on the proposed Law of Succession/ Inheritance.
In Morogoro and Iringa regions, twelve Women Economic Groups had the
following views:
(b) The surviving spouse and the children of the deceased irrespective of
their status that is a son or daughter be entitled to a store and the
remaining part of the estate.
(f) Where the husband dies leaving behind immovable properties such as
residential house(s), the surviving wife or (wives) should be entitled to
inherit such property for life in trust of the surviving children.
(h) Where either spouse dies without leaving any children the whole estate
of immovable properties should be auctioned to enable the surviving
spouse to acquire his/her share in cash and the rest be distributed to
the entitled beneficiaries.
In Mbeya and Rukwa regions twelve Women Economic Groups had the
following views:
(c) It was suggested that children born out of the wedlock and have been
introduced to and accepted by members of the family of the deceased
should be entitled to inherit. But a child whose birth has been kept
secret by the deceased father and remains unknown to other members
of the deceased’s family should not be entitled to inherit.
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. - 54 -
(d) Further suggestions were given that women’s right to inherit property
such as house(s), farms and agricultural produce should be recognised
and safeguarded.
PART 5
RECOMMENDATIONS
1.1 Uniformity
1.2 Such a uniform law will further enhance national unity and avoid or
regulate conflicts within various personal laws which in one way or
another infringe rights of certain sections of the community.
The proposed Law of Succession should also provide that upon the death of
any of the spouses, any child who had been adopted by the couple shall be
entitled to inherit the estate of the deceased on equal basis with the other
children of the marriage.
(i) Children born out of wedlock who have been recognized by the
putative father and are known to the other members of the
deceased’s family of his marriage should be entitled to inherit
the deceased father’s estate on equal basis with the other
children of marriage.
(i) A child born out of wedlock and kept in secrecy by the deceased
putative father, should not be entitled to inherit the estate of
the father, unless there is proof that both the putative father
and the child’s mother have signed such child’s birth certificate
and, in addition, a passport size photography of the putative
father has been attached to such birth certificate that is in the
custody of the Registrar of Births and Death; provided that in
the absence of the photographs, the evidence of a two close
relatives of the deceased should suffice.
5.2 The proposed law should also provide that where the spouses have
had immovable property such as houses, farms, the surviving
spouse(s) should have the right to inherit such property for life in trust
for the children (if any). Where there are surviving children such right
of the widow(s) to inherit immovable property for life should cease
upon remarriage; in which case the property shall revert to the
children or their appointed trusts.
5.3 All household effects should be left for use by the surviving spouse(s).
5.4 The proposed law should also provide that notwithstanding the
provisions of any other law to the contrary, in all cases where there is
distributable estate of the deceased other than immovable property in
respect of property jointly acquired during the marriage, as provided
for under S. 114 of the Law of Marriage such property shall only be so
distributed to the beneficiaries after the due equitable share of the
surviving spouse has been determined and set aside by a court of law.
5.5 The proposed law should further provide that where the spouses had
no child of the marriage or one of any of the other categories
mentioned in para 3 and 4, above, then upon the death of the
husband, where there is immovable property such as a house, forming
part of the state of the deceased, the same shall be inherited by the
widow(s) for life, and on re-marriage the property shall be subject to
division between herself and the deceased’s husband relatives.
5.6 The proposed law should provide that in all cases of mixed marriages
Succession/Inheritance issues shall be determined in accordance with
it.
5.7 The proposed law should expressly provide that after the property
interests of the widow(s) have been determined and set aside by a
court of law of competent jurisdiction, the distributable estate of a
deceased person who is a Moslem, Hindi or any person from the Asian
Community who did not, during his life time, express any contrary
intention in writing or whose life style was not in total contradiction
with his Islamic faith and tradition, shall be distributed in accordance
with Islamic rules of Succession/Inheritance.
5.8 The proposed law should expressly provide that where either of the
spouses dies, leaving behind an inheritable estate the nature of such
estate shall first be determined by a court of law before the same is
made the subject of probate and administration proceedings. This
should be done by way of a declaration order, in a petition for such a
declaration, by any beneficiary.
6.3 It should be the duty of all such institutions concerned to ensure that
distribution of such properties does not take place until an
Administrator has been duly appointed by a court of law and probate
and administration proceedings have been finalized.
6.5 The proposed law should make it an offence for any person to interfere
with such property so listed, save upon the permission of such
institution or officer or court for good cause, such as saving the goods
from damage or decay, or catering for the interests of the
beneficiaries, such as providing for school fees, or their maintenance.
7.0 WILLS
7.3 The rules on Wills should limit the power of testamentary disposition to
the extent that no person should be allowed to dispose of his property
by way of a Will in excess of one third (1/3) of the whole of his estate
of whatever description.
7.4 The proposed law should as far as possible aim at removing conflicts of
laws and interests.
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. - 61 -
7.5 The proposed law should provide the requirement of witnesses to the
Will who should be fit, competent and honest persons, thus avoiding
possible fraud or misrepresentation.
7.6 Witnesses to the Will should be other persons than any of the
beneficiaries.
(v) Any other cause that shall be considered by the court as grave
enough as to warrant such cause of action by any other
reasonable person of the community from which the testator
comes.
9.2 Differences about categories of the estates and their values, persons
who might be affected by such laws, those who might be appointed as
executors of administrators should be streamlined. The assumption
that executors or administrators are the beneficiaries should be clearly
dispelled.32
31
Probate and Administration Ordinance, Cap. 445; Administration (Small Estates) Ordinance, Cap. 30.
The Magistrates Courts Act, 1984 and the Administrator Generals Ordinance, Cap. 27.
32
Vide Section 76 of the Law of Marriage Act.
The law of succession.ACD
DR R.W. TENGA’S TEACHING MATERIALS
PDF BY GEORGE KAZI. - 63 -
9.4 The proposed law must provide for concurrent jurisdiction in matters
of probate and administration in the High Court, a court of Resident
Magistrate, a District Court and a Primary Court.
9.7 In addition the law should provide that institutions like the
Administrator General’s Office, the Public Trustee, Lawyer(s), Religions
Leaders or Bankers Social Welfare Officials appointed.