Rule of Intestacy of Christian and European Origin Application in Tanzania.. By Johnson Yesaya. L.LB.

PRELIMINARY

People dies while possessing properties, their demise automatically transfer their properties to whom survives their death. Not every person is entitled to benefit from estate of a deceased unless that person form part of lineal descendants of a deceased. Where there are no descendants surviving deceased's death, people who were of kindred to a deceased becomes entitled to estate left. There are several legislations governing probate and administration of estate in Tanzania, The Probate and Administration of Estate Act  and rules made there under, The Indian Succession Act , The Hindu Wills Act , The Administrator General (Power and Functions ) Act , The Primary Courts (Administration of Estates) Rules , The Islamic Law (Restatement) Act , The Islamic Law (Restatement)  and The Local Customary Law Declaration Orders  are few of many enactments governing probate in Tanzania.

Islamic, Customary and Hindu laws applies in probate. The connecting factors of these regimes are ethnicity, religious affinity and or race of the deceased during his life time. A person who died intestate but his life style indicates his affiliation to Islamic religion hence Islamic laws will apply, customary laws applies when a deceased lived his life basing on cultural ways of life. There is a lot of connecting factors which may be used in choosing law to apply in a particular probate situation. In probate and administration of estate, one must come across the following terms which need to be understood;

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 S.2 of Cap.352 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. 

Letters of Administration

Refers to Court writs 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. 

Widow

A woman who has lost her spouse by death and has not married again. A woman to be called widow there must be existing lawful marriage between that woman and a deceased. No one can claim being a widow of a deceased without prior showing evidence to lawful marriage existed between them. 

Lineal descendants

Are also know as issue, they are direct descendants of a deceased such as children and grandchildren. The term is most often used in the context of intestate succession, as courts prioritize a decedent’s spouse and lineal descendants when distributing an estate.  Lineal descendants are direct beneficiaries of estate of a deceased in most jurisdictions, children born out wedlock are sometimes not recognized as issues of a deceased. In Tanzania, depending to a precedent we have, children born out wedlock are as good as children born in wedlock hence they are entitled to parents assets. 

See Elias Jeremia v. Paulo jeremia , H.C agreed that, a child born out wedlock forms part of issues of a deceased by a reason that he is a blood child of a deceased hence entitled to benefit from the estate his late parents.

Also in Elizabeth Mohamed v. Adolf John Magesa , Mruma. J observed that “ I think it is utterly wrong that a child should be denied his right to inherit from his fathers for a reason that  he was born out o f wedlock, the act which he had no control o f whatsoever.” 

The same position was quoted with approval by High Court in the case of Judith Partick Kyamba v. Tunsume Mwimbe and 3 Others, in which judge observed that: “with profound respect, I don't agree with the argument of the petitioner that Children born out of wedlock are illegitimate and they have no right to inherit the deceased estate. I find the petitioner's arguments to be far away and out of touch of justice and realities. In fact such argument is barbaric and discriminative in nature. Children born out of wedlock are the biological Children just like those born within the matrimonial home. They are entitled to equal shares o f their common Father with fellow Siblings.”

All the case laws above establish that both children of a deceased born in wedlock and our of wedlock are entitled to assets of a deceased.

Kindred or consanguinity

These are close relatives of a deceased such as his brothers and sisters, and their descendants and, secondly, his uncles, cousins, and other relations of either sex, who have not descended from a brother or sister of the deceased, and all other members forming part of clan of a deceased. The relatives are only entitled to assets of a deceased when there is no any child of a deceased or widow surviving deceased’s death.

RULE OF INTESTACY OF CHRISTIAN AND EUROPEAN ORIGIN APPLICATION IN TANZANIA.

Section 88(2) of Probate and Administration of Estate Act , allows court to adjudicate matters concerning probate or letters of administration basing on Christian religion if deceased professed Christianity during his lifetime. The law applicable for administration of estates of deceased Christians is the Indian Succession Act which applies to Christians and people of European origin, the rule of intestacy is provided and described under Section 27 of the Indian Succession Act.

The rule of intestacy of Christians and European origin people provides that, “Where the intestate has left a widow and has also left any lineal descendants, one third of the property belongs to his widow and the remaining two thirds shall go to his lineal descendants. Where he has left a widow and 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 to those who are of kindred to him. Where he has left a widow but left none who is of kindred to him, the whole of the property shall belong to his widow.

In addition, Section 28 of the same Act, 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 state through administrator general.

Where deceased left only child or children and no widow, the child will inherit the whole portion of estate or equally divided to children if they are many. Where the intestate has not left surviving him any child but has left a grandchild or grandchildren, and no more remote descendants through a deceased grandchild, the property shall belong to his surviving grandchild, if there be only one or if more than one shall be equally divided among all his surviving grandchildren. Section 30 and 31.

Where the deceased has left no any child or grandchild the property shall belong to the surviving lineal descendants who are nearest in degree to the intestate, where they are all in the degree of great-grandchildren or are all in a more remote degree to him see Section 32.

Children born out of wedlock are excluded from inheriting their father's estate but they may only inherit from the estate of their deceased mothers. This position was changed by several precedents of High Court and appellate court of Tanzania as described above. Now the position holds that, children born out wedlock are as good as children born in wedlock hence they are entitled to assets of their deceased parents.

CONCLUSION

Intestacy is a situation of dying without testifying how and to whom estate of a deceased to be divided. A deceased person who died without saying anything (orally or written) concerning his properties and division of those properties, that person can be said died intestate. Intestate is divided into two, partial and total intestate. Partial intestate is when a deceased left a will which do not disclose an executor, or  all of his properties and mode of division or those properties. Total intestate is when nothing is stated at all by a deceased concerning his properties and mode of division. 

Issues of a deceased may apply before court, probate or letters of administration depending on testacy or intestacy of a deceased. For a deceased who left competent will which state a name of an executor, a named executor or executrix may apply probate before court, but a deceased who died intestate, a person appointed by clan may apply for letters of administration.

REFERENCE

BOOKS

Kitime, E, “Law of Succession and Trust in Tanzania”, of 2017, Pg. 100.

W.M.Musyoka, “Law of succession”, Law Africa Publishing (K) Ltd, Nairobi Kenya.

N.N.N Nditi Jr, “Succession and trust in Tanzania, theory and practice”, Law Africa Publishing (K) Ltd, Nairobi Kenya.

CASE LAWS

Elias Jeremia v. Paulo jeremia PC Probate and Administration Cause Appeal No. 13 of 2020

Elizabeth Mohamed v. Adolf John Magesa   (2016) TLS LR 114

Judith Partick Kyamba v. Tunsume Mwimbe and 3 Others 

OTHER SOURCES

Kagan, J., “probate”, available at < https://www.investopedia.com/terms/p/probate.asp> [Accessed 26 July 2021]

Cornell law school., “Lineal descendants”, available at < https://www.law.cornell.edu/wex/lineal_descendant> [Accessed 26 July 2021]