PROBATE AND ADMINISTRATION OF ESTATES IN TANZANIA.

The very rationale behind probate and administration of Estates emanate from the fact that one day we will die or be incapacitated in the course of our daily life, however we may wish to tell and instruct on how our properties (Estates) should be dealt with. It is in that aspect that the Laws of Tanzania regarding probate and administration of Estates lay down procedures on how to go about in dealing with properties of the deceased person or an incapacitated one.

Before exploring into details I find it important to define the herein under terms as applied in probate and administration of Estates perspective.

1. Succession

This refers to the transfer of title to property from an individual who is
dead but formerly was entitled to another person who is surviving his or her death. It occurs when an estate or property which a man has by descent, as heir to another or which he may transmit to another, as his heir. Also, succession entails anything a person receives from the estate of a decedent, whether by the laws of descent or as a beneficiary of a will or trust. The vital issues in succession are the death of the property owner, the devolution of property to the heirs and beneficiaries under the law of descent and distribution. This means that succession of the property cannot occur when the owner of such property is alive. Hence succession becomes after the death of the owner. Also, the devolution of property of the deceased is normally to the heirs and or beneficiaries. This devolution is done under guidance and control of the law of descent and distribution. In a simple way succession means who is to take what from the deceased and at what proportional.

Succession can be of two types basically

Testate succession – where a person dies leaving a will behind and therefore the distribution will be done according to the will.

Intestate succession – Where a person dies without leaving a will or where a will left has been declared invalid by the Court of law.

Intestate succession can be further divided into two:-

Total intestate where the deceased without leaving a will or left a defective will or the will become inoperative, And,

Partial intestate This is a kind of intestacy which occurs when the deceased person made a will for
some of the estate but other estates are not disposed of with a will. This may occur where only a part of the beneficial interest is disposed of.

In Tanzania there are a number of legal regimes governing succession which depend on ethnicity, Religion,race or agility. The legal regimes are categorised into three:-

1. Statutory regime- these are  the laws which are enacted by the parliament normally governs specific groups of people that includes the Hindu wills Act 1870 which is applicable in Tanzania by virtue of the Judicature and Application of Laws Act (JALA) section 14. There is also the Indian Succession Act of 1865 this law is applicable to the Christians and all those of European origin,Illegitimate children are excluded from inheriting their father’s estate, but they may only
inherit from the estate of their deceased mothers.The main consideration in this Law is the welfare of the deceased’s immediate family members and dependents.

2. Customary regime- this is the regime which is natured according to the customary laws which laws are according to the norms, usages and traditions of a particular community irrespective of their religious beliefs. In Tanzania there are many customary laws as there are tribes, the Customary rules of testate and intestate succession are contained in the Local Customary Law declaration order No. 04 of 1963. It is important to understand that these laws must be in conformity with the constitution and other laws of the law, contrary to that they can be declared void and null. The above law provides for Inheritance in three degrees, whereas normally the first son from the first house is the heir in the first degree, second degree heirs include all other sons and third degree heirs are normally the daughters of the deceased.

3. Religious Regime- basically this regime is about Islamic law guided by the Quran the applicability of Islamic law in the probate and Administration of Estate Act is enshrined under section 88 which provides for statutory basis. There are various laws applicable under the Islamic law which includes The wakf commissioners Act, The re-statement of Islamic law, The Mohammedan Estate (Benevolent Payment) Act and many others there is also the Hindu 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. In Tanzania only the High Court has the jurisdiction to deal with the Hindu matters.

Up to this juncture it is worth noting that the major Laws Governing probate and administration of Estates in Tanzania are:-

A. Probate and administration of Estates Act

B. Probate and administration of Estates Act (Rules)

C. The magistrate’s Court Act

D. The Land Registration Act

E. The Office of Administrator General (Discharge of Power and function) Act

2. Executor- A male person appointed by the testator in the will to administer his estate upon his demise.

3. Executrix – A female person appointed by the testator in the will to administer his estate upon his demise.

4. Administrator – A male person nominated by the family meeting and letter appointed by the Court to administer the estate of the deceased who died intestate.

Administratix – A female person nominated by the family meeting and letter appointed by the Court to administer the estate of the deceased who died intestate.

ESTATE PLANNING

Estate is a net worth of a person at any point of time alive or dead, while planning is a comprehensive and dynamic legal concept which denotes a process. Generally Estate planning is the process which entails what is to be done once the estate owner is incapacitated due to old age, sickness or accident or even death.

The basis of Estate planning culminates from two fundamental questions.

1. Why do people work?

And the answer to this question is that people work to earn income in order to care for their needs.

2. What things do people fear the Moat?

And the answer to this question is incapacitation- the situation where a person is no longer able to earn income due to various reasons including sickness. And death which came as a punishment from God.

From the above questions the basis of Estate planning can be drawn and formulary can be presented as:-

Estate planning= Work – (Incapacitation+Death)

The practical aspect of Estate planning can be looked at into two dimensions

1. Estate planning before the owner’s death.

2. Estate planning after the estate owner’s death.

Starting with the first Estate planning before the owner’s death occurs when a person plans on how his properties should be dealt with while alive and it is divided into three:-

(a). Where the estate owner is physically and mentally ok.

▪️This happens when a person is fit and healthy and this is a stage where more investment has to be done through various investment platforms like UTT Arms, NSSF, PSSSF so that to prepare when a person will become incapacitated at this stage the transfer of properties can be done through

✔️Gift in contemplation of Death– When a person is about to die he may direct some properties to others.

✔️Gift intervivos– properties can be transferred as gifts from the donor to the donee via the deed of gift.

✔️Transfer through Nomination– this is normally done via next kin normally done in the social security fund programs where a person will fill in the special form which asks who will be the next kin to benefit his shares.

(b). Where a person is mentally ok but physically incapacitated.

At this stage a person’s mind is healthy which means that he/she can make a rational decision only that his body is not active, here the best option is for the planner to write the Power of Attorney to the other person who will be his lawful Attorney and act on his behalf in management of his estate it can be specific or General.

(c). Where the estate owner is mentally incapacitated.

At this juncture an individual’s mind is not sound and stable and therefore cannot make a rational decision. This is where the Mental health Act comes in provided under section 19 where an Application has to be made before the court by an interested person for the administration of the estates. As it was held in the case of DINAR MARUNDA MMARI MISCELLANEOUS CIVIL APPLICATION NO. 07 OF 2022 HC MOSHI.

2. Estate planning after the owner’s death.

After death estate planning can testate succession or intestate succession as explained here above

Estate planning as discussed above can be done through the following tools.

Wills, Wakf, Trusts, Gift in contemplation of death, Gift intervivos and Power of Attorney.

While winding up this part it is important to understand that the right to inherit is normally founded on the relationship between heirs and deceased that can be by birth, marriage or adoption and not any stranger can come and inherit as it was held in the case of Shabaha Juma & Others vs. Rashid Juma [1977] TLR.

JURISDICTION OF COURTS IN PROBATE AND ADMINISTRATION OF ESTATES.

In determining jurisdiction there are three important factors to be taken into account as follows:-

1. Regime.

2. Value or Size.

3. Place of Domicile.

The following are Courts which deals with probate and administration of Estates.

Primary Courts, District Court, District Delegate and High Court.

A. PRIMARY COURT.

The primary Court has jurisdiction to deal with probate and administration of Estates in the matters with Islamic and customary orientation here the size or value of the estate does not matter. It has the original jurisdiction in matters of probate and administration of Estates with Islamic and customary elements. However the matter can also be taken to the High Court as far as the inherent powers are concerned.

B. DISTRICT COURT.

The District Courts deals with small estates whose values should not exceed one hundred million (from 0 to 100 Million) but the matters should not involve Islamic or Customary element. The above was provided via Written Law Miscellaneous amendment No.02 of 2016. The petition is done by using form No. 76 as postulated in the Probate rules and further articulated under section 6 of PAEA.

C. DISTRICT DELIGATES

Historically before 2008 the chief justice used to issue a special instrument to certain categories of Magistrates to be the district deligates. However in 2008 the Chief justice issued a circular known as Circular No. 1 which required all the resident Magistrates with at least a year in their post to become District deligates as Resident Magistrates. It should be noted that we do not have specific buildings for the district deligates and therefore the district Courts are all the same but the people who sit there will determine if it’s a district Court or the Court of district deligates.

In the District deligate Court Islamic or Customary law is not an issue, his jurisdiction is unlimited if the matter is non contentious, but if the matter is contentious the district deligate’s jurisdiction is limited to 15000/= and if that is the case the matter has to be forwarded to the High Court for directions as provided under section 5 of Probate and administration of Estates Act.

The jurisdiction of the district deligate is similar to that of the High Court for the purposes of granting letters of administration and probate, save for the exceptional jurisdiction only vested to the high Court like that of resealing of the foreign grant.

D. HIGH COURT

The jurisdiction of the High Court of Tanzania is unlimited it also has jurisdiction to reseal the foreign grant of probate and letters of administration. The other jurisdiction of the High Court is appellate and Revisional ones.

THE CONCEPT OF MISSING EXECUTORS.

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