Description
Applicable law in probate and administration of estate – intention test and mode of life test – Hybrid mode of life – both customary lifestyle and modern lifestyle – testamentary capacity test – some bequeathed property did not belong to the testator – disinherited elder issues – witnesses of the will – sanctity of the will – restrictive testamentary freedom – child born out of wedlock – Indian Succession Act of 1865 – substance of common law and statutes of general application – Wills Act, 1837 – Doctrine of Testamentary Freedom – Everything is permitted except what is forbidden by the law – Citizens are permitted to do things which the law is silent – doctrine of absolute testamentary freedom – cure harshness, injustice and unfairness – modifications, qualifications and exceptions – testamentary dispositions on the share in matrimonial assets of the surviving spouse – bequeath biological or dependent or adoptive children – testator should be of sound mind and of age of majority – testamentary disposition against public policy of Tanzania – null and void – disinherit his sons, daughters or wife – mistreatment of the testator by words or deeds – share of the surviving spouse in matrimonial property upon death of the other spouse – statutory heirs – equality of people, non-discrimination and duties to the society – Ex turpi causa non oritur actio – an action or cause of action founded on an illegal action – No benefit principle – ordinary suit – contentious probate and administration of estate proceedings – Reginald Abraham Mengi
- Tests for determining applicable law in probate and administration of estate matters – intention test and mode of life test (p. 16)
- Hybrid mode of life – both customary lifestyle and modern lifestyle (p. 17)
- Proof of customary mode of life and modern mode of life.
- Statutory law applies in the administration of the estate of a deceased who lived a modern lifestyle.
- A will was held to be invalid since it disinherited elder children of the divorced wife without a reason and the issues were not given the right to be heard (pp. 21 -22)
- A will was invalidated for failure to meet testamentary capacity test (pp. 21 – 22)
- Testator stroke leading to loss of rational thinking
- Some bequeathed property did not belong to the testator
- No reason to disinherit the elder issues
- Witnesses of the will were not given the opportunity to read the contents of the will
- The sanctity of the will was questionable since one of the main heirs/beneficiaries was the custodian of the will.
- Restrictive testamentary freedom (p. 22)
- A biological parent is obliged to bequeath his estate to a child born out of wedlock (p. 23)
- The Indian Succession Act of 1865 was interpreted in conformity with substance of common law and statutes of general application(Wills Act, 1837) in interpreting the Doctrine of Testamentary Freedom (p. 26)
- Everything is permitted except what is forbidden by the law. Citizens are permitted to do things which the law is silent (p. 26)
- A state shall do nothing except what it has been permitted by law (p. 27)
- Doctrine of absolute testamentary freedom (p. 28)
- It was held that the doctrine of absolute testamentary freedom (derived from the common law and statute of general application by virtue of the general reception clause) does not suit local circumstances of Tanzania and its people, hence it is just and fair to modify and qualify it so as to cure harshness, injustice and unfairness which has always been caused by the doctrine (p. 59)
- Modifications, qualifications and exceptions to the doctrine of absolute testamentary freedom (pp. 60 – 64)
- A testator has no power to make testamentary dispositions on the share in matrimonial assets of the surviving spouse (pp. 60 – 61). The same applies when the other spouse has passed away but her/his shares are yet to be administered fully (p. 61).
- A testator is mandatorily required to bequeath his biological or dependent or adoptive children (p. 61).
- However, the portion or percentage to be bequeathed to the child or children is discretionary upon the testator but such portion or percentage should be reasonable in the circumstances of each case (p. 61).
- A testator should be of sound mind and of age of majority (p. 61)
- Any testamentary disposition which is against public policy of Tanzania should be deemed to be null and void (p. 61)
- A testator is entitled to disinherit his sons, daughters or wife in the following circumstances (p. 63):
- Where the son or daughter commits adultery with the spouse of the testator
- Where the spouse commits adultery with a son or daughter of the testator
- Where a son, daughter or spouse attempts to murder the testator or his or her spouse
- Where a son or spouse neglects to, fails to look after the testator or fails to take care of the testator in hunger or sickness or during old age without justifiable reasons
- Mistreatment of the testator by words or deeds
- Where a son, daughter or spouse of the testator by fraud, violence, intimidation or undue influence causes the testator to make a will or to change one already made
- Any other ground which the court may determine to be sufficient cause for disinheritance of son, daughter or spouse
- Share of the surviving spouse in matrimonial property upon death of the other spouse (p. 48)
- A testator has no power to bequeath the share of the surviving spouse in the matrimonial assets (p. 49)
- Meaning of child, parent and statutory heirs (pp. 49 – 50)
- Section 10 of the Law of the Child Act indiscriminately confers on children of all categories the right to inherit the estate of their deceased father including children born out of wedlock and adopted children (p. 50)
- Definition of public policy (p. 56)
- Courts in Tanzania should intervene when the last will and testament contravenes or is inconsistent with and repugnant to the public policy of the United Republic of Tanzania (p. 58)
- Tanzania’s public policy on inter alia, equality of people, non-discrimination and duties to the society should be treated as limitation and one of the exceptions to the general rule on Testamentary Freedom (p. 58)
- Ex turpi causa non oritur actio – an action or cause of action founded on an illegal action cannot be enforced by a court of law. No one can benefit from his own wrong (p. 58)
- No benefit principle
- Where a caveat is lodged against a petition for probate, the petition turns into an ordinary suit. The petition is deemed as a plaint and the caveator’s affidavit a written statement of defence (pp. 68 – 69)
- The caveators being defendants in a contentious probate and administration of estate proceedings, they are entitled to all relief prayed in the caveat (p. 68)
- It is not the forms and or Sections which appoint an administrator, rather; the Court upon being satisfied that the best interest of the deceased’s estate and beneficiaries are safeguarded (p. 70)
- A caveat against petition for probate succeeded hence the caveator’s were automatically appointed as administrators since they had prayed for the appointment in their caveat (p. 65 – 70)
