THE LAW SCHOOL OF TANZANIA

LS 108
PROBATE, ADMINISTRATION OF
ESTATES AND TRUSTS
 LECTURE ONE

INTRODUCTION TO THE COURSE,

JURISDICTION, CHOICE OF LAWS,
PROTECTION OF ESTATES & EXECUTORS OF
THEIR OWN WRONG
 LAWS GOVERNING SUCCESSION,
PROBATE AND ADMINISTRATION OF
ESTATES

The two processes (Succession & Probate

and Administration of Estates) are
distinct, as such, even the laws governing
them are different.
A: LAWS GOVERNING SUCCESSION:

The community in Tanzania is diverse

and so is the legal system governing
succession.

The diversity is based on ethnicity,

religion or race; thus there are four
competing legal systems on matters of
succession:
1.Statutory Laws:

1.1 The Judicature and Application

of Laws Act [Cap. 358];

1.2 The Indian Succession Act of

1865 (ISA);

1.3 The Hindu Wills Act of 1870.

Note: - The two statutes made
applicable by S. 14 of the JALA;

- Reception date – 1st Dec.

1920;

- Future amendments do
not apply – S. 17 of the JALA
- The ISA:

- applies to Christians and all

those of European Origin;

- does not apply to the estate of

a deceased Moslem;

- provides for equality among

the heirs
2.Customary Laws:
There are many tribal groupings in
Tanzania, thus many customary laws.
They apply:

2.1 to African members irrespective

of their religious affiliation;

2.2 Some of the rules are codified

and some are not;
See the Customary Law (Declaration)
Order No. 4 of 1963;

- the Order applies to all communities

in the districts that are specified;

- the rules apply to patrilineal

communities which form 80% of the
local population;
 - the remaining 20% are matrilineal –
their customary rules on succession
are not codified hence little is known
about them.

3. Islamic Law:
3.1 Sources of Islamic Law:

- Quran, hadith, consensus..etc

3.2 Application of Islamic Law in TZ:
Several legislation provide for the
application of Islamic law:

- The Succession (Non-Christian

Asiatic) Act, Cap. 28, see S. 6(1);

- The Islamic Law (Restatement)

Act, Cap. 375, read together with
the Statements of Islamic Law, G.N.
No. 222 of 1967;
 - The Magistrates’ Courts Act,
Cap. 11 [R.E. 2002], see S. 18;

- The Law of Marriage Act, Cap.

29 [R.E. 2002];

- The Probate and Administration

of Estates Act, Cap. 352 [R.E.
2002].
4. The Hindu Law
B: LAWS RELATING TO
ADMINISTRATION OF ESTATES:
1. The Probate and Administration of
Estates Act, Cap. 352.

- This is the principal Act;

- It applies to all estates irrespective

of religion, ethnicity, or race of the
deceased;
- applies in testacy & intestacy.
- It is read/applied together with its
Rules, i.e. Probate Rules;

- It provides for, among other things,

jurisdiction and procedure for dealing
and handling probate and
administration matters.
2. The Magistrates’ Courts Act, Cap. 11
[R.E. 2002].

- It provides for, among other things,

categories of jurisdiction to deal
with probate and administration of
estates.

3. Other complementary laws

 JURISDICTION AND CONFLICT OF LAWS

A: Jurisdiction:

The PAE Act spells out jurisdiction of

the courts in Ss. 2 to 6:

 The HC has jurisdiction in all matters

relating to probate and administration.

See Ss. 3 and 4 of the Act.

 District Delegate:

- A Resident Magistrate specifically

appointed as such by the CJ;

- He has jurisdiction to hear matters

of probate and administration in the
area where the deceased had his
fixed place of abode at the time of
his death; See S. 5 of PAEA + CJ’s
Circular No. 1 of 2008
 - scope of jurisdiction of a District
Delegate depends on whether the
matter is contentious or not [S. 5(2)]

 District Court:

- Jurisdiction limited to small estates;

See S. 6 of the PAEA

 Primary Courts:

- Under paragraph 1(1) of the Fifth

Schedule to the MCA, Cap. 11 [R.E.
2002], PCs have jurisdiction to deal with
probate and administration matters
where the law applicable is either
customary or Islamic.

- Jurisdiction is regardless of value or

nature of the property.
Cases for reference:

- Salmin Mohamed [1986] TLR 250

- Scolastica Benedict [1993] TLR 1

- Mohamed Hassan [1994] TLR 225

- Luiham Martin [1992] TLR 74

B: Conflict of Laws:

- This entails confusion on the law to

be applied in succession;

- Conflict of laws exists in terms of

succession and not probate or
administration of estates;
How to Resolve:

Two tests to be considered:

- Intention of the deceased;

- Mode of life of the deceased;

Read: Innocent Mbilinyi [1969] HCD

No. 283
PROTECTION OF ESTATES PENDING GRANT
AND
EXECUTORS OF THEIR OWN WRONG

A: Protection of Estates
Why Protection? Various circumstances
may lead to the need for protection of
estates:

- danger that the property may be

wasted [S. 10 of Cap. 352];
 - proceedings taking long;

- protection of the beneficiaries;

- need for interim measures;

How to Protect/Measures:

- Appointment of a receiver pending

grant (S. 10) + Rule 24 (Procedure);
- Sale by Order of the Court (S. 11);

Note: This can be done by a

person appointed under S. 10
or any other person. See Rule
25 for procedure.

- Letters of administration for special

purposes. Ss. 35-44 of PAEA.
B: Executors of Their Own Wrong

- S. 16 of the PAEA provides for

executors of their own wrong;

- Justifiable intermeddling S. 16
(proviso);

- Liability of executors of their own

wrong; S. 17