Making A Valid Will in Tanzania Part II S

MAKING A VALID WILL IN TANZANIA
SUCCESSION AND ESTATE

PLANNING LAW
Part II
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table of content
Law Governin the making of 02

wills and types of wills in
Tanzania
An Estate 03
Validity of a will 03
What are the types of wills 04
Silient Considerations when 05

Drawing a valid will
The Principle 08
Conclusion 10
Contacts 11
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LAWS GOVERNING THE MAKING OF WILLS

AND TYPES OF WILLS IN TANZANIA
The Tanzanian succession law adopts a plurality of laws with
regard to the Admiration of estate recognized under our
Constitutional edifice and among the laws are: the Probate
and Administration of Estates Act, Cap 352 R.E, 2002, the
Indian Succession Act, 1865, Administrator General (Powers
and Functions ) Act, Cap 27 RE, 2002 ,the Judicature and
Application of Laws Act, Cap 358 RE,2019, The Succession
(Non-Christian Asiatic) Act Cap 28 R.E, 2002 , the Customary
Law (Declaration) Order No 4, 1963 and the Probate Rules ,
Cap 352 R.E, 2002 among other statutes.
Upon the death of a person all transmissible rights and

obligations are transferred to their successors, this is normally
effected out of their estate and is precisely where a Will comes
in. Among the various types of Wills are Oral Wills on the one
part and a Written Will respectively:
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AN ESTATE
The Black Law Dictionary defines an Estate as, the amount,
degree, nature, and quality of a person’s interest in land or
other property, especially, a real estate interest that may
become possessory, the ownership being measured in terms
of duration.
An estate is a key part of succession. The term estate refers to
aggregate of a person’s property instantaneously owned
preceding their death. In determining a person’s estate all
his liabilities should be included. The fact that money is
payable only after a person’s death is not in itself sufficient to
exclude it from his estate immediately before his death.
VALIDITY OF A WILL
The making of a will is a vitally important act, with extensive
legal consequences. As a matter of common sense and
practical impossibility, when a person dies, they cannot go
with their properties. So, having a valid will is one of the few
ways in which one can bequeath his Estate to his chosen
successors. Usually, a Will is valid if it fulfils the following
key requirements:
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WHAT ARE THE VARIOUS TYPES OF WILLS?

Tanzania like any other state sets its requirements for
accepting Wills as valid. Usually, executors must prove the
testator intended to use the document as a will. However,
without any witnesses, family members or beneficiaries may
challenge their validity. In this case therefore compliance with
the legal requirement for a Will are of primary importance.
I. Oral Will
An oral will is also called nuncupative will is a kind of a will where
the wishes of the one making the will (the testator) are not in a
written form, the testator only express his wishes verbally to the avail-
able witnesses on how his properties shall be distributed upon
his/her death. Oral wills are typically used in emergency situations
when a written will is not feasible, such as on a battlefield or during a
serious illness and they are generally subject to strict legal
requirements including four witnesses. Oral will have customarily
been practically used to accommodate Illiterate people who are
unable to read and write.
II. Written Will

This is the kind of will where a testator’s wishes are put in a written
form signed by him/her and witnesses who know how to read and
write and who saw the testator affix his signature on the document.
Under this category it is important for the will to be written by a
permanent ink.
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SALIENT CONSIDERATIONS WHEN

DRAWING A VALID WILL.
Age
1 Wills are generally executed by a legal adult
who is of sound mind, and estate planners call
this person the "testator”. In Tanzania in order
for a person to make a will must be of legal age.
The law considers a person to have a legal
capacity if has attained 18 years of age. In that
sense, a minor is legally not allowed to make
will and the will that will be executed by a
Minor shall be invalid hence, incapable of being
enforced.
Testamentary Capacity
2 By the time a person embarks on making a will
he/she must be capable of understanding and
forming a rational judgement over the act so
done. To have mental capacity, the testator
must have the ability to know the nature/extent
of property, the physical description of the
property, the disposition being made by her
will and have the ability to connect all of these
elements together to form a coherent plan. This
being the case, a will is invalidated if a testator
is of unsound mind, illness, and is under the
influence of alcohol when making the will or
suffers from a sudden angry animus.
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Intention
3 In the Will making process intention is of the es-
sence. A person is said to have intended to
make a Will if at the time of the signing, he or
she intends to make an irrevocable disposition
of property in the event of his death. The
testator must have the intention when he exe-
cutes the will. More specifically, the require-
ment is that the testator must have intended
that his wishes as expressed in the appropriate
form should take effect on his death. It follows
that these wishes must be entirely the result of
his volition. The testator must have the pres-
ence of mind when making his will. Intention
can be overruled should factors such as fraud,
mistake, undue influence be proved later.
Proper Disposal of Property

4 A Will must properly dispose-off the testator’s
property without abrogating the above stated
principles. This includes listing all property
and assets and properly distributing them
among beneficiaries/heirs according to the tes-
tator’s wishes while considering the law of the
state. Also, the properties that do not belong to
the testator should not be included in the will.
“You cannot give what is not yours.”
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Signed, Dated and Witnessed
5 A Will must be signed and dated by the testator
in front of competent witnesses numbering two
(2), who must also sign. If the testator is illiter-
ate the written will must be witnessed by four
adult persons, two of them must be relative of
the testator who are not beneficiaries of the
testator’s estates.
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THE PRINCIPLE
“YOU CANNOT GIVE WHAT IS NOT YOURS
(NEMO DAT QUOD NON HABET RULE)”
This is a cardinal principle that is applied in the course of
preparing a Will. The principle should be at the back of the
mind of the testator while listing the properties that should
be included in the Will.
The principle requires that, one should not put anything in a
Will which does not belong to him exclusively. As a general
rule some of the properties that should not be included in the
Will are properties that are owned jointly (joint tenancy) or
properties that are owned by another person. That being the
case, if for instance the property is owned in common (tenancy
in common), the testator must only bequeath their shares of
the property and not the entire property.
I. Exceptional Circumstances where jointly held

Property May Devolve to another Party
through a Will.
Joint-Occupiers vs Tenancy-in-Common.
Joint-Tenancy has the right of survivors (jus accrescendi),
meaning that where a party dies the property rights survives
them and therefore passes on to the other living party and can
therefore not be passed through a will.
On the other hand, where there is a tenancy in common, a
testator can bequeath shares in the property as part and parcel
of their estate and valid/indefeasible title in such property
will pass to the heirs .
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II. What if one dies without leaving a Valid Will

(Intestate)?
Intestate succession is a legal process that comes into play
when someone passes away without leaving behind a valid
will or other legally binding document dictating how their
assets and property should be distributed. Instead, the distri-
bution of assets is determined by the laws of intestacy in the
state where the person passed away (Lex Domicili)
Under the circumstance the family oversees appointment of the

administrator/administratrix of the estate to collect, adminis-
ter and distribute the estate of the deceased subject to the
resolutions agreed upon by family members in the meeting.
This part will be well covered in our next article regarding the
process of obtaining letters of administration or probate letter
for the Executor and the Administrator of the estate.
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CONCLUSION
Why should you have a Lawyer to prepare your Will?
The main reason that most people should consider hiring an
Advocate or Law Firm to create their last will and testament is
that this is a crucial step to take, and even a small mistake can
create massive headaches for your loved ones in probate
Court. To make sure that a Will is well drafted so as to avoid
unnecessary objections in Court, it is advisable for Advocates
to be involved in the process of drafting the Will.
Customary law is equally worthy of mentioning at this point
with some curious observations, because for instance
extraneous circumstances may exist allowing a testator to
disinherit a heir among the circumstances which are also not
homogenous across all communities are where the presumed
heir commits adultery with the wife of the testator or where
the same presumed heir attempts to kill the testator among
other reasons.
A concept known as conflict of laws will normally handle the
choice of law debate/question depending on the ethnic origin
of the deceased, their wishes as expressed when still alive,
customs, and way of life, religion professed during their
lifetime among other key considerations which is best left to a
lawyer to handle in detail and with precision.
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OUR CONTACTS
+255 742 850 702
info@lysonlaw.co.tz
Plot No. 1826/76, house no. 6

Masaki, Bandari Road, Off-Kahama Road
P.O Box 79395
Dar es Salaam - Tanzania.
lysonlaw www.lysonlaw.co.tz

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MAKING A VALID WILL IN TANZANIA

SUCCESSION AND ESTATE

Law Governin the making of 02

What are the types of wills 04

Silient Considerations when 05

LAWS GOVERNING THE MAKING OF WILLS

Upon the death of a person all transmissible rights and

WHAT ARE THE VARIOUS TYPES OF WILLS?

II. Written Will

SALIENT CONSIDERATIONS WHEN

SALIENT CONSIDERATIONS WHEN

Proper Disposal of Property

SALIENT CONSIDERATIONS WHEN

I. Exceptional Circumstances where jointly held

II. What if one dies without leaving a Valid Will

Under the circumstance the family oversees appointment of the

+255 742 850 702

Plot No. 1826/76, house no. 6

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