Q&A with Isidora & Company: The legal effect of a Will under Tanzanian law
What you need to know:
I am aware that many Tanzanians postpone writing a will day after day, yet death without one has caused chaos and a bitter probate dispute in a family that’s in our neighbourhood. Can you please enlighten me on the legal effect of having or not having a will in place? Also, can a foreigner and, in particular, one who is the spouse of a Tanzanian citizen, inherit an estate in Tanzania and become the legal personal representative of the deceased person? Best regards, Tinka.
Under the Probate and Administration of Estates Act, Cap 352, the term “will” means “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”. A testator is the person who has written and executed a last will and testament that is in effect at the time of his/her death. With this brief meaning of what a will is, let us now turn to your question.
In the absence of a Will
If there is no will, the heirs of the deceased person must appoint an administrator of that deceased person’s estate. This is done at a clan meeting. The administrator has the duty of petitioning the High Court of Tanzania, which, under section 3 of the Act, has jurisdiction in all matters relating to probate and the administration of deceased’s estates, with power to grant probates of wills and letters of administration to the estates of deceased persons and to alter or revoke such grants.
The documents that must accompany the petition include: (i) minutes of the clan meeting to show that the heirs have consented to and entrusted the administrator to administer the estate; (ii) the death certificate of the deceased; (iii) an affidavit as to the domicile of the deceased person, sworn by the administrator, or one of the heirs; and (iv) surety bonds executed in favour of the elected administrator, confirming that he will administer the estate honestly.
On hearing the petition, the Court usually grants the letters of administration, unless fraud or other legal impropriety is exposed. So, what if there are no heirs? In this case, the falls to the Tanzanian government (under the appointed Administrator General).
In the presence of a Will
If there is a will, an executor needs to petition the Court.
However, there situations where the will does not name an executor; here, the will only serves to define the wishes of the deceased regarding how the estate should be devolved in which case the procedure to be followed is the same as in the absence of a will. But if an executor is named in the will, the executor must petition the Court in order to probate the will. The petition is required to be accompanied by (i) a copy of the will; (ii) an affidavit to prove the domicile of the deceased; and (iii) surety bonds, to be executed if the will is contested. The estate of the deceased is then placed vide a Court order under the executor’s charge, following which the estate must be distributed according to wishes of the deceased person as detailed in the will.
Legal personal representative
The administrator of the estate, or the executor of the will, as the case may be, only becomes the legal personal representative of the deceased after registration with the registrar of titles at the land registry in the Ministry of Lands, Housing and Human Settlements. The legal personal representative has powers to sell or lease the landed property for the interests of the heirs. A foreigner, or a foreign who is a spouse of a Tanzanian citizen, can inherit an estate in Tanzania, can be appointed as an administrator or an executor, and can be registered as legal personal representative with power to sell the property in that capacity and realize the proceeds. It is highly recommendable to write and register a will under the Registration of Documents Act, Cap 117 to guide the Court in carrying out the wishes of a deceased person and reduce the time required to administer the estate.
Wills can be written, or oral
A will can be written or oral. An oral will is made in the presence of not less than four witnesses, two of whom must be relatives of the testator. A written will is made by a literate testator in the presence of two witnesses, one of whom must be a relative. Although writing and registering a will may be simple and straightforward, it is recommendable to engage a practicing Advocate to provide the best option in the circumstances. The issue of writing, registering and enforcing a will is a pressing one, but which few people have a good understanding of.
Paul Kibuuka ([email protected]) is a tax and corporate lawyer, tax policy analyst and chief executive of Isidora & Company.
