Death is a major occasion for the transfer of property and the principles relating to it form an

important part of any legal practice. Succession is also one means to acquire properties for
self-actualisation of human needs. Succession is universal concept to all humanities in the
world despite the fact that human societies do differ in terms of culture, history, religion,
philosophy, attitudes, ideology and legal system.

Succession refers to the transfer of property from an individual who is dead but formerly was
entitled to another person who is surviving his or her death. Hence, succession law can be
defined as the branch of law which deals with transmission or devolution of property upon

death of the owner. It provides mechanism through which property that belonged to the
deceased is distributed to the people who are surviving him. It provides for procedures by
which entitled beneficiaries and heirs inherit the estate of deceased person.1

The importance of the law of succession is as follows:

It provides an avenue for creditors as well as the will challengers to come forward seeking
satisfaction before the assets are distributed to the inheritors. This can be ensured when the
court with competent jurisdiction makes sure that the will was validly executed, and an
argument could be presented before the court if anyone wanted to challenge the validity of
the will.

Furthermore, law of succession provides mechanism to determine the rightful claimant that
can benefit from the estate of deceased according to the rules of testate or intestate
succession. This facilitates the administration of justice in the devolution of the property of a
person upon his/her death. It ensures who deserves what estate of the deceased person.

Another importance of the law of succession is that it enables the transfer of property to
another person after death of the deceased person for development and improvement of those
properties. Hence when the owner dies, his property should be taken care of and this can only
be done throughthe use of law of succession where the estates of deceased person are taken
care of, improved and managed.

The law of succession also prescribes the rules which determine how a person’s estate shall
be divided after his death and all matters incidental thereto. It identifies the beneficiaries who

1
Law of succession and trust in Tanzania by Eluid Kitime
are entitled to succeed to the deceased's estate, and the extent of the benefits they are to
receive, and determines the different rights and duties that persons.

Although succession law varies from state to state depending on legal system and culture. In
Tanzania there are several rules and regulations that regulate succession and among those
rules and regulations are Probate and Administration of Estate Act2, Magistrate Court Act,
Indian Succession Act of 18653, Islamic Laws and Local Customary Law (Declaration) Order
(No. 4) of 19634 among others. Therefore, the sources of succession law in Tanzania are
as follows:

Constitution: is the grand law of the land. This is due to the provision which emphasizes that
all law must reflect the constitution and any law which made inconsistent with constitution
shall be declared null and void5. Constitution is the source of succession law because it
provides for the right to property.6

Statute law: This refers to laws which are enacted by the parliament. They are a source of
law of succession because they provide for the rules of succession. The relevant law here is
the Indian Succession Act of 1865, which was made applicable in Tanzania by the Indian
Acts (Application) Ordinance, Cap. 2. Under section 247, a man is considered to die intestate
in respect of all property of which he has not made a testamentary disposition, which is
capable of taking effect.

The Indian Succession Act, 1865 does not apply to the estate of a deceased Muslim. It applies
to Christians and all those of European origin. Illegitimate children are excluded from
inheriting their fathers estate, but they may only inherit from the estate of their deceased
mothers. The main consideration in this Law is the welfare of the deceased’s immediate
family members and dependents.

Not only that but also this law (Indian Succession Act of 1865) provides a mechanism on
how the properties of deceased person be distributed if he left a widow and lineage
descendants, widow only, widow and kindred to him, as referred in section 278;
2
Probate and Administration of Estate Act
3
Indian Succession Act of 1865
4
Local Customary Law (Declaration) Order No 4 of 1963
5
Article 64(5)
6
Article 24
7
Indian Succession Act of 1865
8
Ibid section 27
 "Where the intestate has left a widow, if he has also left any lineal descendants, of his
property shall belong to his widow and the remaining shall go to his lineal descendants … if
he has left 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 shall belong to those who are of kindred
to him … and if he left none who are of kindred to him the whole of his property shall belong
to his widow"
Furthermore, this law is applied in conflict of law as the prevailing law in case two laws such
as customary law and statutory law are in conflict in matters concerning succession for
instance in the case of Re Innocent Mbilinyi deceased [1969] HCD No. 283 9, the judge in
charge used this law as the prevailing law and gave conclusion in the matter of succession
where there was a conflict. " In the High Court, Georges, C.J. (as he then was) held that: “the
deceased had abandoned the customary way of life in favour of what may be called a
Christian and non-traditional way. There is satisfactory evidence that he was to a large extent
alienated from his family and that his children had no connection whatsoever with them.”
Therefore, statutory law was held to apply.

Customary laws: Customary Law may be defined to mean that Law which is either written

or unwritten but is recognized by the community as having the force of law. It is applicable to
African members of the Community irrespective of their religious affiliation. In Tanzania
Mainland, there are as many Customary Laws as there are tribal groupings. The Customary
rules of testate and intestate Succession are embodied in the Local Customary Law
(Declaration) Order (No. 4) of 1963 and they apply to all local Communities in the Districts
where the declaration was specifically extended.

This law acts as a source of succession law because it contains the succession rules of the
patrilineal and matrilineal communities, which applies in succession matters, especially in
devolution of deceased assets and inheriting of deceased property or properties to his legal
heirs. But several rule or rules of this law discriminate women in matter of inheritance for
instance there's a rule state that;
"Women are allowed to inherit except clan land. They can use clan land without selling it
during their lifetime. But if there are no men in that clan, a woman can inherit this land
completely". Therefore this rule automatically becomes unconstitutional because it goes

9
Re Innocent Mbilinyi deceased [1969] HCD No 283
contrary against Article 2410 of Constitution of United Republic of Tanzania, not only to
be unconstitutional but also this rule brought a case of Bernado Emphahim v. Holaria
Pastory and Gervazi Kaizirege (PCC) Civil Appeal No. 70 of 1989 (unreported) 11 which
was based on sexual discrimination in a succession matters especially in case of inheritance
of female and girl child, whereby it's judgement become a precedent in abolition of other
sexual discrimination cases in succession matters especially in case of inheritance to female
and girl child.
"Mwalusanya J., declared this custom as being discriminatory and unconstitutional".

Religious laws: Islamic law refers to the law constitutes a divinely ordained path of conduct
that guides Muslims toward a practical expression of religious conviction in this world and
the goal of divine favour in the world to come.Islamic Law is often equated or confused with
customary law, consequently giving rise to conflict of laws. A number of pieces of legislation
provide for the application of Islamic Law in Tanzania (Mainland) in matters relating to
Succession / Inheritance where parties are members to the Islamic faith. The following are
the pieces of legislation:

(i) The Probate and Administration of Estates Act Cap 352 R.E 2009) Section 88(1)
(a).

(ii) The Judicature and Application of Laws Act (Cap.358 R.E 2002) Section 9.

(iii) The Magistrates Courts Act

(iv) The Law of Marriage Act

(vi) The Wakf Commissioners Act

This law regarded as a source of succession law because it provides clearly the mechanisms
on how Islamic inheritance or succession is conducted. Before distributing property, the
Islamic way, the way how the deceased lived is a matter of great importance. Whether the
deceased lived life the Islamic way or not is of great importance especially if there was no
will left behind. In the case of: The Estate of the Late Salum Omari Meremi [1973] LRT
No. 80,12 whereby it was stated that; the deceased was a Hehe Moslem. He was an army
10
Article 24 of Constitution of United Republic of Tanzania, 1977
11
Bernado Emphahim v. Holaria Pastory and Gervazi Kaizirege (PCC) Civil Appeal No 70 of 1989 (unreported)
12
The Estate of the Late Salum Omari Meremi (1973) LRT No 80
Officer. He married a member of his own tribe through Civil marriage. He was a practicing
Muslim – Justice Mfalila held that applying mode of life test (that he was a practicing
Moslem) the deceased has intended his estate to be administered according to Islamic Law
and not Hehe Customary Law, as the deceased’s manner and way of life was far removed
from his tribal customs".
Not only that but also the Islamic law and customary law are interdependent in real life, and
this is revealed in the case of The Estate of the Late Suleman Kusundwa [1965] E.A.
24713 whereby it come into conclusion through the judgement of the case of Hussein
Mbwana v. Amiri Chongwe Civil Appeal No. 1 of 1963 (T) (unreported) 14 where he
stated that:
“I hold therefore there are two systems of law which may apply in African Muslims
Community, religious law matters peculiarly personal such as marriage, and customary law
which may apply in all spheres of life.”

Hindu laws: Hindu Law of Succession/Inheritance, that is the Hindu Wills Act, 1870, was
imported to Tanzania (Mainland) through the Indian Laws (Application) Ordinance (Cap.2)
and made to apply to the Hindu Community. However, the paramount difficulty in the
application of Hindu Law of Succession is its limited applicability within the Hindu
Community. Hindu Law is the law applicable mainly to Wills of persons who profess the
Hindu religion. However the law applies in certain cases to those of such descendants who
have not abjured that religion.

Case laws: These are precedents made by the courts of records in the judicial system. They
bind lower courts in the decision making when they encounter with the case of similar
material facts to the previous case. Under common law legal system, they are also operating
as laws. Their bindingness depends on the judicial hierarchy system.

The relationship of succession and inheritance is hugely based on the compatibility with each
other. These two terms are used in sad events such as death. This basically means that there's
no inheritance if there's no succession (No succession no inheritance) because succession is
based on the process by which all the earthly properties of a deceased person are dealt with
and inheritance is based on transfer of rights of property from a deceased person to a
successor. (Succession is a consequence of inheritance to exist).

13
The Estate of the Late Suleman Kusundwa (1965)E.A 247
14
Hussein Mbwana v. Amiri Chongwe Civil Appeal No 1 of 1963 (T) (unreported)
Conclusion.
The law of succession is merely important in our lives because it brings justice among us
especially in a matter of equality between two sexes in inheritance, moreover the law of
succession acts as a protector of human rights because it goes equally with a fundamental
aspect of human rights.

BIBLIOGRAPHY.
Book.
Law of succession and trust in Tanzania by Eluid Kitime
Article.
The Constitution of United Republic of Tanzania, 1977.
Case Laws.
Bernado Emphahim v. Holaria Pastory and Gervazi Kaizirege (PCC) Civil Appeal No. 70 of
1989 (unreported).
Hussein Mbwana v. Amiri Chongwe Civil Appeal No. 1 of 1963 (T) (unreported).
Re Estate of the Late Suleman Kusundwa [1965] E.A. 247
Re Innocent Mbilinyi deceased [1969] HCD No. 283
The Estate of the Late Salum Omari Meremi [1973] LRT No. 80
Statutory Laws.
Local Customary Law Declaration Order No 436 of 1963
The Indian Succession Act of 1865