INTRODUCTION

According to cap 352 the term Probate means the copy of a will, or, in case of an oral will, a
statement of the contents thereof, certified under the seal of the court, with a grant of
administration to the estate of the testator1.
THE LAWS GOVERNING SUCCESSION, PROBATE AND ADMINISTRATION OF ESTATE
IN TANZANIA.
In Tanzania the law governing succession, probate and administration of estate are categories
into four as follows
STATUTORY LAW
These are law which are enacted by the parliament, these statutory law are uses to regulate
succession, probate and Administration of estate for example of these laws are Probate and
Administration of Estate Cap 352, The Magistrate Court Act, The law of Marriage Act, The
Child Act, The Land Act, The Land Registration Act, The law of Limitation Act.
CUSTOMARY LAW
These are the law also govern the Succession, Probate and Administration of Estate, in order for
these customary law to be uses the part must be from the same community.
ISLAMIC LAW
These are laws govern Succession, Probate and Administration of Estate, these laws uses for the
parties who prophecy in Islamic religion.
HINDU LAWS
These are law govern Succession, Probate and Administration of Estate for Indian Community
residing in Tanzania

1 Cap352

DISCUSSION

ON

THE

LAWS

GOVERNING

SUCCESSION,PROBATE

AND

ADMINISTRATION OF ESTATE IN TANZANIA.

The following are the specific laws which are governing Succession, Probate and Administration
of Estate.
THE CONSTITUTION OF UNITED REPUBLIC OF TANZANIA, 1977
Its the supreme law of the land which gives the validity to all laws of the land. Therefore all
laws in relation to succession, probate and the administration of state in Tanzania get their
validity from the constitution2.
Specifically Art 24 of the same constitution provides for the right to own property where for any
law against the constitution loses its validity. also the same constitution 3,provides for the equality
before the law and non discrimination to the effect that all persons are equal before the law and
no one is to be discriminate in any manner .in the case of Bernado Ephraim Vs Holaria Pastory
and others,4the higher customary law(declaration)(no 4)order of 19635,the law that was
discriminatory in nature discriminating woman from selling a clan land was nullified by the court
as it was unconstitutionality
THE PROBATE AND ADMINISTRATION OF ESTATE ACT CAP 352
This is the law that for the grant of probate of will and letters administration to the estate of
deceased persons. This law empowers The High Court in all matters relating to probate and the

2 Art 64 (5) Cap2

3 Art 13 (1)(2)
4 Civil appeal Case no 70 of 1989
5 Para 20

administration of deceaseds estate, with power to grant probate of wills and letters and to alter
or revoke such grants6
The probate and administration of estate govern through part II which provides for jurisdiction in
probate and administration of estate apart from that deals in protection of estate which pending
and executors of their own wrong, granting of probate and letters of administration by the court .
It generally be known that the probate and administration of estates and its rules of 2011 in
which illustrate7 as well as for contention probates proceedings8.
THE LAW CHILD ACT
This is an act which provides for reform and consolidation of laws relating to children , to
stipulate right of child and to promote, protect and maintain the welfare of a child with a giving
effect to international and regional contention on the right of the child , to provide affiliation ,
faster care , adoptional and custody of the child to further regulates employment and
apprentionship to make provisions with respect to a child in conflict with law and to provide for
related to a child9.
Under section 10 of the Child Act provides for right to parental property of the child the
provisions stipulated that a person shall not deprive a child of reasonable enjoyment out of the
estate of a parent.
THE MAGISTRATE COURTS ACT
This is the Act which provides for the jurisdiction of primary courts in all proceeding of a civil
nature10.Also the Act provides for the power of primary courts in administering cases of the
6 Section 3 of the Probate and Administration of Estate
7 Part II Of the probate and administration of Estates Rules of 2011
8 Prt III Of the probate and administration of Estates Rules of 2011
9 Cap 13 of 2009
10 Section 18(1) of the MCA

deceased estate, where the law applicable to the administration or distribution or the succession
to the estate is customary as Islamic law 11. As well as power of courts in the administration of
deceased estate has been conferred in the Act12.
Also the Act provides the general duties of administrator who appointed by primary courts to
collect the property of deceased and costs of the administration 9. As well as to bring and defend
proceeding on behalf of the estate13.
The succession (non-Christian Asiatic) Act this is the principal legislation which govern the
succession probate and administration of estate of the deceased who is non Christian Asiatic ,
simply term as an act which regulate succession on death to property of non Christian Asiatic
This Act applied in mainland Tanzania for succession to the movable property in mainland
Tanzania of deceased non Christian Asiatic who at the time of death is domiciled in Tanzania
and to the immovable property in mainland Tanzania14.
THE ADMINISTRATOR GENERAL (POWER AND FUNCTIONAL) ACT
This is an Act which governs the succession, probate and administration of the estate by
providing or makes provisions for the appointment and duties of an administrator general such
as under section 4 (1) of the act provide for the minister may appoint an administrator General
and as may Assistant Administrator General as may from time to time required to do15.
11 Rule 2 of the 5th schedule of MCA
12 Rule 2 of the 5th Schudule of the Magistrate Court Act
13 Rule 6of the same sedule
14 Section 6 of succession act of 1923 rev 2002
15 Cap 2 of the laws

THE JUDICUTURE AND APPLICATION OF LAWS CAP 358

This is the law that permits certain laws to apply in Tanzania. This law recognizes the application
of the United Kingdom in Tanzania,16 application of Customary law,17application of Islamic Law,
and application of The Indian Acts.18 The laws which are fundamental to matters related to
succession, probate and administration of Estate in Tanzania. Also the law is applicable in
matters related to succession, probate and administration of estate in Tanzania as it provides for
full jurisdiction to the High Court of Tanzania in Civil and Criminal matter.19 This implies that
all matters in relation to succession, probate and administration of Estate may be determined by
the High Court although other written laws empower the subordinate courts over this matter.
THE LAND ACT, CAP 133
This is the law regulating matters relating to land occupancy. This law governs the succession,
probate and administration of Estate as it provides right of occupancy of land to every person. 20
This implies that the land is subject to succession to the lawful heir upon the death of the real
owner. The law provides procedures on how the land of the deceased is to be transmitted to the
lawful heir. Also under s.159 of the Land Act, when the land is occupied under common or joint,
once the party thereto dies then the right of occupancy remains to the surviver.
16 S.9 of The Judicuture and Application of Laws
17 Op.cit s.11
18 Loc.cit s.14
19 S.2(1) and (2) of The Judicuture and Application of Laws
20 S.19 of the Land Act

CIVIL PROCEDURE CODE; CAP 33

This is the law that provides for procedures on adjudication of proceedings in civil nature. This
law governs succession, probate and administration of Estate as the matter is in civil nature. Also
the same law,21 empowers the inherent jurisdiction the High Court to determine any matter for
the purpose of justice administration wherefore, the High Court is empowered to determine
matters in relation to estate.
THE MARRIAGE ACT
This is the law that governs matters relating to marriage issues. The law governs Succession as it
provides for the rights and obligation of spouses and their children. Also it provides for the
proper Courts on Matrimonial proceedings as per section 7622 which are the High Court, The
Residence Magistrate Court, The District Court and The Primary Court.

THE LAW OF LIMITATION ACT

This is the law which provide for the limitation of time on application and institution of the suits
in civil nature, this law governs Succession, Probate and Administration of Estate as it provides
for the time limit on suits in respect of Estate claims, for example a suit in respect of a claim to
movable property of a deceased person is time limited to twelve years 23 Also Section 3524 on
21 S.95
22 The Law of Marriage Act
23 Rule 21 of Part 1 of the Schedule of the law of Limitation Act
24 The Law Of Limitation Act Cap 89 Re (2002)

Administration dates back to death provides that; For the purposes of the provisions of this Act
relating to suits for the recovery of land, an administrator of the estate of a deceased person shall
be taken to claim as if there had been no interval of time between the death of the deceased
person and the grant of the letters of administration or, as the case may be, of the probate.

LOCAL CUSTOMARY LAW (DECLARATION) (NO.4) ORDER GOVERNMENT NOTICE

NO. 436 OF 1963
Local Customary Laws (Declaration)25 explains that Inheritance follows the patrilineal side. The
administrator of the deceaseds property is the eldest brother of the deceased, or his father and if
there is no brother or father, can be any other male relative chosen with the help of the clan
council. If there is no male relative, his sister is the administrator. After the administration of the
estate plan is established, inheritance property is usually distributed immediately.
Rule 2026 provides thus; Women can inherit, except for clan land, which they may receive in
usufruct but not sell.
Rule 27 and 2827 provide that a widow has no share in her husband's estate if there are issues of
the union and the husband cannot inherit from his wife who dies intestate, unless the wife left no
children or any member of her own family.
Local Customary Law (Declaration)28 explains that, A Will is a statement, which is voluntarily
made by a person during his lifetime to show his intention and how he decided his property to be
distributed upon his death. A Will can be of two types; an oral Will and a written Will. Special

25 (No. 4) Order, Government Notice (GN) 436/1963, Schedule 2, Laws on Inheritance

26 The Local Customary Law (Declaration) (No.4) Order 1963, GN. 436 of 1963
27 Ibid note 2 above
28 (No. 4) Order, Government Notice (GN) 436/1963, Schedule 3, Laws on Wills/Probate

witnesses who must be present at the same time shall witness a Will. A Will is invalidated if a
testator is of unsound mind because of insanity, illness, and drunkenness or sudden anger.
Rule 28 (Law on Wills)29 provides that a testator may give all of his property without necessarily
mentioning every item that he will have at the time of his death.
Rule 77 (1) (Law of Persons)30 provides that a childless widow is entitled to 2 of the property
acquire during her married life with the deceased after the debts of the deceased have been
repaid.
ISLAMIC 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: The Succession (Non-Christian Asiatic)
Ordinance (Cap. 112) Section 6(1), The Administration (Small Estate) Ordinance (Cap. 30)
Section 19(1) (a), The Judicature and Application of Laws Ordinance (ap.453) Section 9, The
Magistrates Courts Act No. 2 of 1984 section 18 which gives the primary court jurisdiction over
cases of succession, the Law of Marriage Act No. 5 of 1971, The Mohamedan Estate
(Benevolent Payments) Ordinance, Cap. 25, The Re-statement of Islamic Law, GN.22 of 1967,
The Wakf Commissioners Act, Cap. 109.
In the case of small estates, in terms of S.19 (a)31, in the case of the administration of the estate of
an African Muslim, it is not Islamic Law which will apply in all cases. For Islamic Law will not
apply in the following circumstances:a) Where the deceased person had through written or oral declaration provided that
Customary Law should apply; or
b) Where the deceased person's acts or manner of life show an intention that his estate
should wholly or in part be administered in accordance with Customary Law.
29 Ibid note 4 above
30 (No. 4) Order, Government Notice (GN) 436/1963, Schedule 1, Laws of Persons
31 The Administration (Small Estates) Ord. Cap.30

THE LAND REGISTRATION ACT, CAP. 334, R.E 2002

For the landed property of the deceased, the executor will have to apply for the land registrar for
registration of title along with a copy of the probate of the will or letters of administration to the
estate of the owner, or of his appointment as required under section 67 of Land Registration
Act.32 This will transfer the title of ownership from the deceased to an executor. In addition,
during distribution of the deceased estate the executor will transfer a good title to the respective
legatee.
HINDU WILL ACT 1870:
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/Inheritance is its limited applicability within the Hindu Community. So far
there are no known court cases on the subject in the country.
Section 3(1)33 provides that by virtue of the Indian Acts (Application) Ordinance (Cap.2)Hindu
Law is applicable in Tanzania, as is the case in Kenya.
The Hindu Wills Act 1870 which was made applicable to Tanzania (Mainland) by the Indian Acts
(Application) Ordinance, Cap. 2 define a Will as: the legal declaration of the intentions of the
testator with respect to his property which he desires to be carried into effect after his death.

THE INDIAN SUCCESSION ACT, 1865

32 Cap 334 R.E 2002
33 The Hindu Succession Act Cap 158

The Indian Succession Act, 1865 is basically codified English law. It is an old piece of legislation
which was imported to Tanzania (Mainland) from India as it was in India in 1907. While in
India, the Indian Succession Act, 1865 has undergone a number of amendments and
modifications, this has not been the case with the one in Tanzania.
The provisions of the Indian Succession Act 1865 differ from those under the English law today.
The Act provides for freedom of testamentary disposition to the extent that the testator/testatrix
may dispose of all his/her property by will without providing anything to his/her dependents. It
does not give recognition to illegitimate children and makes no distinction between movable and
immovable property. It does not apply to Muslims though it may apply to Christians and those of
European origin resident in Tanzania (Mainland).
Section 2634 of the Act gives the kindred of the deceased (including illegitimate children) the
right to inherit when the deceased did not leave any children or any linear descendants.
Section 27 of the act provides that where the intestate has left a widow, if he has also left any
lineal descendants, a of his property shall belong to his widow and the remaining b shall go to his
lineal descendants: ... if he has left no lineal descendants, but has left persons, who are of kindred
to him, one 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.
Section 4635 of the Act provides for persons capable of making wills that; every person of sound
mind and not a minor may dispose of his property by will.
THE COMPANIES ACT, CAP 212 RE 2002
Section 7036 provides for Evidence of grant of probate that; the production to a company of any
document which is by law sufficient evidence of;
34 The Indian Succession Act, 1865
35 Ibid note 7 above
36 The Companies Act, Cap 212 Re 2002

(a) probate of the will, or letters of administration of the estate, of a deceased person having
been granted to some person; or
(b) the Administrator General having undertaken administration of an estate under the
Administrator General (Powers and Functions) Act, shall be accepted by the company,
notwithstanding anything in its articles, as sufficient evidence of such grant or
undertaking.
Also section 16137 provides for Contributories in case of death of members that;
1. If a contributory dies either before or after he has been placed on the list of
contributories, his legal representatives, and his heirs, shall be liable in due course of
administration to contribute to the assets of the company in discharge of his liability
and shall be contributories accordingly.
2. If the legal representatives make default in paying any money ordered to be paid by
them, proceedings may be taken for administering the estate of the deceased
contributory, and for compelling payment there out of the money due.

BIBLIOGRAPHY
STATUTES
THE CONSTITUTION OF UNITED REPUBLIC OF TANZANIA OF 1977
THE MAGISTRATE COURT ACT
THE LAND ACT
37 Ibid note 12 above

THE LAW OF LIMITATION ACT

CIVIL PROCEDURE CODE
THE LAW OF CHILD ACT
THE ADMINISTRATION (POWER AND FUNCTION) ACT
THE JUDICUTURE AND APPLICATION OF LAWS ACT
THE LAW OF MARRIAGE ACT
CASE LAW
BERNADO EPHRAIM VS HOLARIA PASTORY AND OTHERS CIVIL APPEAL CASE NO
70 OF 1989