Probate - Lectures 2 & 3 - Law School

THE LAW SCHOOL
OF
TANZANIA
PROBATE, ADMINISTRATION
OF ESTATES & TRUSTS
(LS 108)
LECTURE TWO
WILLS
Introduction:
What is testate succession?
It simply means the distribution of the

estate of the deceased person in
accordance with his Will. It presupposes
the existence of a Will.
What is a Will?
S. 2 of the PAEA, Cap. 352:

-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.
-the definition is similar to the one by ISA,

1865.
-See also Musyoka, W. M., (2006), Law of
Succession, Pg. 27;
-Some authors define a Will to mean a

document or documents in which a
person expresses his wishes upon death;
See: Sawyer, C., (1998), Principles of

Succession: Wills and Probate, Pg. 35
-Case law definition:
“the Will of a man is the aggregate of his

testamentary intentions, so far as they are
manifested in writing, duly executed
according to the statute”.
See: Lemage Vs. Good ban [1865] LR 1

P and D 57
Wills, strictu sensu, concern disposition of
property, though as observed in Good
ban’s case, they may cover other incidental
matters as well, e.g.:
Appointing executors, trustees &

guardians for the children (minors);
Directions as to the manner and

disposition of the deceased’s body, etc.
Laws Governing Wills in Tanzania:
Statutory Law (Statutory Wills):
- The ISA, 1865;

See S. 50 (Unprivileged Wills)
See S. 52 (Privileged Wills)
- The Hindu Wills Act, 1870.

Customary Law (Customary Wills):
- Local Customary Law
(Declaration) Order No. 4 of 1963;
- Testator’s age – 18 yrs+;
- 3 witnesses including wife(s);

- Absence of the wife(s) – the Will
becomes defective:
See: Lwehabura Vs. Lwehabura

[1968] HCD No. 358
- Beneficiaries cannot become

witnesses except the wife(s);
- Witnesses to a written Will
must be literate;
- If the testator is illiterate – 4

witnesses are required;
See: Jackson Reuben Maro Vs. Hubert

Sebastian, Civil Appeal No. 84 of 2004,
CAT, Arusha (Unreported)
- Date, signature/thumbprint.
Islamic Law (Islamic Wills):
- No special form required;
- May be oral or written;
- Must be proved by witnesses;
- Not to bequeath more than 1/3

unless consent is obtained from the
heirs;
Witnesses required:
- Adult male Moslems from the
testator’s relations;
- Just persons;
See Quran: Ch. V Verses 106, 107
& 108
- Attestation not necessary;
- Intention must be clear.

Nature & Characteristics of a Will
The wishes are intended to take effect

upon death of the testator;
- there has to be a statement

showing that the testator had
intended the disposition to take effect
after his death;
The Will only takes effect after death;
- Beneficiaries do not acquire
interest in the property before the
testator’s death
Operates only as an expression of

intention;
- Making a Will does not affect the
testator’s proprietary rights ( he may
dispose off property even if the will
exists)
It is ambulatory;
- Capable of dealing with property

acquired after it is made
It is revocable;
See Ss.46 & 49 of the ISA, 1865
Can be amended;
Can be made in several documents;

Creation of a Valid Will
For a Will to be valid it needs to have the
following attributes:
Animus testandi (intention to make a
Will);
- it must be established that there was
testamentary intention at the time of
making a Will
Capacity;
- See S. 46 of the ISA, 1865
Capable of being executed;
- some wishes of deceased

persons may not be executable e.g.
based on matters which are against the
law, policy, customs etc.
Must conform to the law(s) under which

it is made;
Must contain signature, attestation (if
necessary depending on the law under
which it is made);
See also: Ss. 50 and 52 of the ISA,

1865 for unprivileged and
privileged Wills
How To Write a Will
No specific format of writing a Will.
However, it is advisable to do the
following:
To start with a sentence: “This is the last
Will and testament of me [name]”;
Full name, current address, date of the

Will;
A statement revoking all previous Wills;

A list of properties;
A list of beneficiaries and their

proportions (depending on the law
applicable);
A statement on any particular wishes

e.g. Funeral arrangements etc.;
A statement appointing your executor;

Must contain witnesses, signature,
attestation (if necessary depending on the
law under which it is made);
LECTURE THREE
APPLICATION FOR GRANT OF

PROBATE
Introduction
A grant of probate is made under S. 24 of
the PAEA read together with Rule 33 of the
Probate Rules;
Granted in respect of the estate of a

deceased person who has left a valid Will;
Application is usually made by/and

granted to the Executor appointed by the
Will;
Where the Will does not effectively
dispose off all the property, the deceased
will be deemed to have died partially
intestate and probate will be granted in
respect of the property provided by the
Will;
The Effects of Grant of Probate:
Proof of proper execution of the Will;
Confirmation of the executor’s authority

to act;
Note: Executor assumes full

authority/responsibility e.g. he can sue or
be sued on behalf of the estate.
Time Limitation:
By implication drawn from Rule 31 of the

Probate Rules, the time limit for applying
for the grant of probate is 3 years from the
date of death of the deceased person.
Practice & Procedure
See Rule 33 of the Probate Rules:
Application by Form No. 18;
Verification by Form No. 19;
Form No. 1 (heading) is a must;

Petition to be accompanied by:
- the last Will of the deceased;
- death certificate or affidavit in lieu

thereof; See Rule 63.
- Affidavit of domicile (Form 45);
- executor’s Oath (Form 47);

Procedure in Court:
Upon receipt of the Petition, the Court
issues a General Citation;
The object is to notify interested persons

to inspect the proceedings and register
their interests (if any) within the time
specified in the citation/notice;
Where no objections are registered the

Court will proceed to grant probate
Where objections are registered, the
proceedings will turn into contentious
proceedings (to be covered in another
lecture).

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THE LAW SCHOOL

What is testate succession?

It simply means the distribution of the

S. 2 of the PAEA, Cap. 352:

-the definition is similar to the one by ISA,

-Some authors define a Will to mean a

See: Sawyer, C., (1998), Principles of

“the Will of a man is the aggregate of his

See: Lemage Vs. Good ban [1865] LR 1

Appointing executors, trustees &

Directions as to the manner and

Statutory Law (Statutory Wills):

- The ISA, 1865;

- The Hindu Wills Act, 1870.

- Testator’s age – 18 yrs+;

- 3 witnesses including wife(s);

See: Lwehabura Vs. Lwehabura

- Beneficiaries cannot become

- If the testator is illiterate – 4

See: Jackson Reuben Maro Vs. Hubert

- May be oral or written;

- Must be proved by witnesses;

- Not to bequeath more than 1/3

- Attestation not necessary;

- Intention must be clear.

The wishes are intended to take effect

- there has to be a statement

Operates only as an expression of

- Capable of dealing with property

Can be made in several documents;

- some wishes of deceased

Must conform to the law(s) under which

See also: Ss. 50 and 52 of the ISA,

Full name, current address, date of the

A statement revoking all previous Wills;

A list of beneficiaries and their

A statement on any particular wishes

A statement appointing your executor;

APPLICATION FOR GRANT OF

Granted in respect of the estate of a

Application is usually made by/and

Proof of proper execution of the Will;

Confirmation of the executor’s authority

Note: Executor assumes full

By implication drawn from Rule 31 of the

See Rule 33 of the Probate Rules:

Application by Form No. 18;

Verification by Form No. 19;

Form No. 1 (heading) is a must;

- the last Will of the deceased;

- death certificate or affidavit in lieu

- Affidavit of domicile (Form 45);

- executor’s Oath (Form 47);

The object is to notify interested persons

Where no objections are registered the

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