PROBATE AND ADMISTARATION OF ESTATE.

The legal representative of a deceased person's estate gets the power by the court to
administer the deceased's estate through a “grant of representation”.

- If there is a Will (Testate Succession), the EXECUTOR applies for “Grant of Probate”

- If Executor is Unwilling or Unable, court appoints “personal administrator.”

- If there is no Will (Intestate Succession) – ADMINISTRATOR, applies for a “Grant of Letters

of Administration.”

Pumzika kwanza kabla hujaendelea Uncle.

- A “grant of representation” is a document, generally issued by a court, that officially

recognizes the right of an executor or administrator to administer an estate.

- Our focus in this instruction will be on the practice and procedure in:
- Grant of Letters of Administration
- Grant of Probate

Estate and Estate Planning

Estate:
Means net worth of a person at any point in time alive or dead.
However, the term has special meaning in legal context, it generally refers to property.

See the case of Henderson v. Secretary of state for Social Security [1998] CA

FIKIRIA KWANZA uendelee uncle

Estate Planning:
The process of anticipating arranging for disposal of an estate inter vivos or through will, for
the benefit of the family members or other individuals in case the estate owner dies.

Categories:

I. Estate Planning before Estate Owner's Death

II. Estate Planning after Estate Owner's Death
HAYA TUENDELEEEEEE.

1. Estate Planning before Estate Owner's Death

a. When the E. Owner is physically and Mentolly ok/fit

The estate owner is expected to produce more and more through investment.

Tools for Estate Planning

✓ Gift inter vivos
✓ Trust
✓ Business investment
✓ Joint Properties
✓ Transfer through Nomination

b)Estate Planning When the E. Owner Is Mentally

Ok/ fit but physically Incapacitated

Tools for Estate Planning

✓ Power of Attorney
c. When the E. Owner is Mentally Incapacitated
✓ Common Law Position (UK) – LPA
✓ Position In Tanzania
✓ The Mental health Act No. 21 of 2008 repealed the
Mental Diseases Act
✓ S. 3 – 26 of the Act

Kaka pumzika pitia hiii casee(mental unfit)

Case:
Re Application for Management &
Administration of NMB Acc of Dina Marunda
Mmari in application by Lilian Bernard
Masaki. No. 7 of 2022. (pettion by affidavity)

Relevant Documents
- Deed of Gift (consideration love and affection)
- Deed of Trust
- Power of Attorney
- Will
- Waqf Deed
2:Estate Planning After Owners Death

✓ How and to whom will your assets be distributed after death. This is what amounts to
succession law.
✓ Mainly planning through a WILL (testate succession)

Summary*
Deceased's Death
- Will (testate)
- Grant of Probate
- No Will (Intestate)
- Grant of Letters of Administration

Competent Court

Deceased's Estate
Legal Heirs

Process of administration of deceased's estate.

APPLICABLE LAWS AND SUCCESSION REGIMES

APPLICABLE LAWS
- Under our "probate laws", whether intestate or testate succession, the "competent court"
has to be moved by application for a "grant":
- For intestate succession: a "Petition for a Grant for Letters of Administration."
- For testate succession: a "Petition for Grant of Probate."

What are the Applicable Laws?

- The Local Customary Law (Declaration) (No.4) Order, G.N. No.436/1963, Second Schedule,
Laws on Inheritance [Sheria za Urithi & Mirathi]; First Schedule - Laws on Guardianship
(Sheria za Ulinzi)
- The Local Customary Law (Declaration) Order, G.N. No. 279/1963 First Schedule, Laws of
Persons [Sheria Zinazohusu Hali ya Watu]

The Judicature and Application of Laws Act,

Cap. 358 R.E. 2019 – s.11(c)(ii) "law of a tribe",
"law of a community" and s.2(3) – on application
of the principles of the common law and equity.

- The Statements of Islamic Law; G.N. No.

222/1967 made under the Islamic Law
Restatement Act s.48(1)(c), [Cap. 375 R.E. 2002]

The Probate and Administration of Estates Act,

s.88(1)(a) and 88(2) Cap.352 R.E. 2002 – on
conflict of law test for “small estates”, and the
PROBATE RULES, G.N. No. 10 of 1963 as
amended by G.N. No. 107 of 1963 and G.N. No.
369 of 1963

- Succession (Non-Christian Asiatics) Act, s.6(1),

Cap.28 R.E. 2002 – the law of the religion
professed by Non-Christian Asiatic.

The Indian Succession Act, 1865 (Act No. X of 1865) – Parts XXIX to XL (inclusive) and
section 333 of the Act were dispapplied under section 165 of the Probate and Administration
of Estates Act, Cap. 352 R.E. 2019.

Some of the common law principles on the law of wills codified under the Wills Act of 1837 of
England are also found in the Indian Succession Act.

SUCCESSION REGIMES
TRINITY OF
I. CUSTOM - BASED REGIME (Primary court & high court)
II. RELIGIOUS - BASED REGIMES (primary court&high court)

III. STATUTORY - BASED REGIME (High court)

- Custom/traditional-based succession system

- Customary Personal law of Succession
- Patrilineal tribes codified: Local Customary Law Declaration (No.4) Order G.N. 436 & 279
of 1963
- Matrilineal tribes: uncodified
- Religious-based system of succession
- Islamic/Muslim Personal law of succession: Sunni (Hanbali, Hanafi, Shafii and Maliki); Shia
- Hindu Personal law of Succession
- Non-Christian Asiatic Personal Law of Succession
- Christian Personal Law of Succession

Received /State Laws

- Indian law of Succession Act, 1865
XXIX-XL & S. 333
- Hindu Wills Act, 1870
- Wills Act (UK), 1873

Common law
- Common law principles
- Doctrines of Equity
- Statutes of general application

CASES

Musilm

- Waziri Manemo Choka v. Abasi Choka

- Anwar Z. Mohamed v. Saidi Selemani Masuka
- Amina Taratibu Mbonde v. Selemani Ahmed Mtalika

customary
how unfair distribution is (inequality)

- Violeth Ishengoma Kahangwa and Jovin Mutabuzi v. Administrator General and Eudokia
Kahangwa
- Ndewawosia Ndeamtzo v. Malasi

Conflict of Laws
Conflict of Laws occurs when determining which law applies, particularly in disputes
involving Statute law, Customary law, Islamic law, or foreign versus domestic laws. The
relevant law depends on the lifestyle and cultural values of the deceased during their
lifetime, often referred to as the "Mode of life Test."
answering
. asses the mode of life of the deceased
. changing mode of style at the end of his life will be considered.
Case Summary
In Innocent Mbilinyi's case [1969] HCD 283, it was determined by Georges CJ that the
deceased had abandoned their customary way of life in favor of a Christian and non-
traditional lifestyle. Consequently, it was directed that the Indian Succession Act should be
used for administering the deceased's estate.

JURISDICTION OF COURTS IN SUCCESSION MATTERS

Introduction
- In Probate and administration of estate cases, the issue of jurisdiction is of great
importance as failure to observe it will render proceedings nullity, see Masoud Mbita & 2
others V. Daria Ruthinda
- Jurisdiction is a creature of statutes hence parties cannot confer jurisdiction to a court
- Sospeter Kahindi v. Mbeshi Mashindi
- John M. Bwanakilala v. Agency Maritime

Courts in Probate and Administration of Estate Matters

- The High Court(yes christian)

- District Delegate(yes christian)
- District Court
- Primary Court(no christian)

Determinants of Jurisdiction

1. The mode of life of the deceased. (The Mode of life Test)

If deceased professed Islam religion (Islamic Law) or If he led "customary way of life"
(Customary Law) - Primary Court.

If deceased "professed Christian religion" - the Indian Succession Act will apply - District
Delegate and/or High Court.

Cont…
2. The domicile (place of abode) of the deceased.
A place/country in which a person has or deemed by law to have his permanent home
(residence)

3. Nature of the Estate

If the gross value of estate does not exceed one hundred million shillings (Tshs.
100,000,000/=) - District Court presided over by District Delegate.

General Powers of the Courts

1. Appointment of General Representatives

2. Grant of Probate of Will and Letters of Administration
3. Revocation of Grant of Probate and Letters of Administration
4. Maintain overall control over exercise of powers by legal representatives.

Primary Court (mca & rules)

- Relevant applicable laws

- The Magistrates' Courts Act, Cap.11 R.E. 2019 - s. 18(1) – civil matters and the Fifth
Schedule thereof, Para 2(a) & 2(b);
- The Primary Courts (Administration of Estates) Rules, G.N. No. 49 of 1971-Rule 9(1)(a) to
(e)

Cont…
- The general jurisdiction of Primary Courts is provided for under section 18(1)(a)(i) of the
Magistrates' Courts Act under which a Primary Court is vested with jurisdiction to entertain
civil matters where the relevant law is customary law or Islamic law.

- Rule 1(1) of the Fifth Schedule provides for the specific jurisdiction of the Primary court in
administration of estate where the applicable law is Islamic law or Customary Law. See the
decision in Ibrahimu Kusoga v. Emanuel Mweta [1986] TLR 26.

Cont…..

- In exercising its specific jurisdiction in administration of estate of a deceased person, a

Primary court is vested with powers under Rule 2(a), (b) and (c) of the Fifth Schedule to
appoint administrators or revoke such appointment.

- The decision in Sekunda Mwambo v. Rose Ramadhani [2004] TLR 439 demonstrates the
powers conferred on a primary court in appointing or revoking the appointment of an
administrator of estate of a deceased person.

Limitations to the Jurisdiction of PC

- The matter is of Civil nature

- The Law applicable to it is either Customary or Islamic
- The deceased at the time of his death had fixed place of abode within the local limit.
- Where the grant has been made under Probate and Administration of Estate Act (HC, DD,
DC)
- Where the administration is undertaken by the Administrator - General.

paea only comes s.92

Powers of the PC

- The Fifth schedule to the Magistrates' Courts Act is to be read together with the Primary
Court (Administration of Estates) Rules, G.N. No. 49/1971 – the Rules.

- Para 2 (a) – (h) bretice kamanga vs ziada kamanga

- Rule 5 provides for the powers and role of the administrator.

- Rule 6 confers the administrator with the powers to sue and be sued on behalf of the
estate.

- Rule 8 provides for accountability of the administrator in event of misappropriating the

property of the deceased's estate.

DISTRICT COURT

Under Cap. 352 R.E 2002 as recently amended, a "District Court" presided by "district
magistrates" has jurisdiction in administration of estates where the estate is a "small
estate", meaning an estate whose gross value does not exceed one 100,000,000/=

S. 6 of PAEA
Hapa kuna kipande kumerukwaa

- In terms of Section 62(2) of the Act, “the jurisdiction of a district court shall be exercised in
accordance with the provisions of Parts VII and IX".
- Part VII of the Act section [8] deals with "Powers and Freedom in Appointing and Revoking
the Appointment of Administrators of Small Estates".

- Consider
- Definition of "Court" under S.2
- Hence the District Court has no jurisdiction over probate and administration of estate
matters under CAP 352. The only exception is the provisions of PART VII of the Act.
- See S.73

Limitations of District Court

I. Must be presided over by the District Magistrate

II. The gross value of 100,000,000/=
III. No powers to revoke grants granted by the Primary Court
IV. Applicable Laws PAEa

DISTRICT DELEGATE

- A "District Delegate" is a "Resident Magistrate" appointed and designated by the CJ and

has jurisdiction in all matters relating to administration of estates.
matters which are not
. customarry
. islamic
. small estate

only statuory matter in all non-contentious matter

- Section 5(2) of the Act states as follows:

"A District Delegate shall have jurisdiction in all matters relating to probate and
administration of estates with power to grant probate and letters of administration of estates
if the deceased, at the time of his death, had his fixed place of abode within the area for
which the Delegate is appointed—

(a) non-contentious cases; no matter the value will be heard

(b) contentious cases, if the Delegate is satisfied that the gross value of the estate does not
exceed three thousand shillings, or the High Court authorizes the Delegate to exercise
jurisdiction in such circumstances as are specified in subsection (3).

Cont…

The mere fact that a district delegate has exercised jurisdiction in the administration of an
estate the gross value of which exceeds fifteen thousand does not make such exercise of
powers invalid. s.5(3) PEA

- Section 5(4) of the Act categorically bars a District Delegate from exercising any of the
powers expressly reserved to the High Court.
- Such powers include for example, resealing grants of probate, which is a preserve of the
High Court.

- Rule 83 of the Probate Rules provides for the procedure on how the High Court is to deal
with a contentious case reported to it by a District Delegate, where the gross value of the
estate exceeds fifteen thousand shillings.

- Rule 83 was considered in the case of Ashbura M. Masoud vs Salima Ahmad, PC Civil
Appeal No. 213 of 2004 (HCT)(DSM)(unreported) by Mlay J. (as he then was) [judgment
dated 14/09/2007].

The District Delegate has jurisdiction in matters falling under statutory law where the
deceased had a fixed place of abode within the jurisdiction of the court.

Limitations

I. Must be presided over by the District Delegate

II. All non contentious matters
III. In contentious matter the value should not exceed Tsh. 15,000/=
IV. Diseased fixed place of abode
V. Applicable Laws.

HIGH COURT

- The jurisdiction of the High Court in administration of estates is carved under section 3 of
Cap. 352 as follows:

- The High Court shall have jurisdiction in all matters relating to probate and the
administration of deceased’s estates, with powers to grant probates of wills and letters of
administration to the estates of deceased persons or to revoke such grants.

- Furthermore, section 4 of Cap. 352 stipulates that:

- The High Court shall have jurisdiction to re-seal grants of probate and letters of
administration made by a court of probate in any part of the Commonwealth in accordance
with the provisions of Part X of this Act.

Time Limit in Filling Application

(1) In any case where probate or administration is for the first time applied for after
expiration of three years from the death of the deceased, the petition shall contain a
statement explaining the delay.

(2) Should the explanation in the petition be unsatisfactory, the court may require such
further proof of the alleged cause of delay as it may think fit [Rule 31 of Probate Rules].

ORGINAL JURSIDICTION ENDS HERE

NOW TAKE A SIP TO APPELATE JURISDICTION

APPELATE JURISDICTION

- In probate and administration matters, appeals do not depend on pecuniary jurisdiction or

regimes regulating probate and administration matters. Appeals in probate follow the normal
civil appeals procedures as provided under the MCA, CPC and CATR.

TYPES OF APPEALS

=> First Appeal

1. HC - DC
=> (MCA S. 20 - Petition of Appeal)

2. DC or DD (does not enjoy appeal juris)- HC

=> (CPC - Memorandum of Appeal)

3. HC - CA
=> [AJA, CAT Rules - Notice of Appeal + Memorandum of Appeal]

Normallly we use revision rather than appeal the relevant document is ......(tafuta)

==> Second Appeal

1. DC (Appellate from PC) - HC
=> (MCA S. 25 - Petition of Appeal)

2. HC (Appellate from DC or DD) - CA

=> (AJA, CATR - Notice of Appeal + Memorandum of Appeal)

Third Appeal
HC (Appellate from PC) – CA
[AJA, CATR – Notice of Appeal + Memorandum of Appeal]
(certficate of point of law)

we dont witness content of the will

even excutor