UNIVERSITY OF DAR ES SALAAM

SCHOOL OF LAW
COURSE CODE: LW307

NAME: CHAMI, MARY VICTOR

REGISTRATION NUMBER: 2020-04-01026

COURSE NAME: LAW OF SUCCESSION AND TRUSTS

COURSE INSTRUCTOR: DR MUSSA

No limitation is expressly provided for in the Indian Succession Act which provides restrictions to the
owner of the property to bequest his property by his last will to persons he is related to by blood,
marriage or adoption, this thus expressly implies on absolute testamentary freedom be the owner of the
estate can decide on who to leave the estate to and who to disinherit. This was stated clearly in the
Probate and administration Cause no. 39 of 2019 1 and is further proved under Section 46 of The Indian
Succession Act which provides that every person of sound mind and has reached the age of majority has
the right to dispose his property through will. This clearly shows that the Act supports freedom of
testament, whereby the only requirement is age of majority and soundness of mind. And because
Tanzania has employed the use of the Indian Succession Act it falls under this provision which grants
freedom to testators if you leave aside people who are subjected to customary laws and religious laws
such as the Islamic Law of succession However, this is not the only law that is used during its application
thus in commenting on the statement given in the Probate and administration Cause no. 39 of 2019,
there are limitations imposed on the testator in disposing his will despite The Indian Succession Act
providing for his absolute freedom and they are as follows;

Testamentary capacity will apply in observing the wills validity. This means that even though the law
provides for absolute freedom of the testator in disposing their will his capacity will still be observed.
This will be on terms of mental capacity and age. This shows that regardless of his freedom the testator
still has to posses capacity of creating such will or else it will be null and void. Section 46 of The Indian
Succession Act, 1985 shows that among qualities possessed by said testator age and soundness of mind
is greatly observed. This is further proved in the case of Banks V Goodfellow 2 which provided the
“golden rule” which was a test which considers the testator’s mental capacity to observe if he had
knowledge and understanding during time of disposing the will. 3 Moreover, in the case of Leah
Ntambula V Francis Wenceslaus Ntambula and Another,4 which showed its support to the Bank’s case
provided that the testator should be in position to understand the nature of the will and what he is
disposing and that there should be no disorder of mind that would have made him act differently to
when his mind is sane. Even in the case at hand the will was declared invalid because the testator’s
capacity was proved not to be on sound mind while disposing his will.

1
(High Court of Tanzania, Dar es Salaam District Registry)
2
[1870] LR 5 QB 549
3
https://stephensons.co.uk
4
Civil Case No. 172 of 2020
Matrimonial assets and properties acquired jointly will not be disposed off freely by the testator.
Regardless of the freedom provided for under Section 46 of The Indian Succession Act, there are laws
which still do not allow disposing off without a care the marriage assets by the deceased. For the
remaining spouse has valid interests on the properties, so it won’t be right to just dispose the property
with the view of testamentary freedom as if the wife is entitled to nothing at all. Section 114 of The Law
of Marriage Act,5 provides the wife with the right of having a share of matrimonial assets acquired by
joint efforts upon death of her husband. This position has been observed in the landmark case of Bi
Hawa Mohamed V Ally Sefu,6 whereby The Court of Appeal of Tanzania brought the proposition it is
proper to consider contribution of a spouse to the welfare of the company as contribution to acquisition
of matrimonial assets or family assets and thus embracing the domestic works or efforts of husband and
wife. In determining meaning of the matrimonial assets as they are provided for under Section 114 of
The Law of Marriage Act, the case of Gabriel Nimrod Kurwijila V Theresia Hassan Malongo,7 matrimonial
assets were given same weight as in the case of Bi Hawa, to mean family assets in a way that they had
been acquired before or during marriage with the intention that they would benefit them and their
children during the period of their joint lives. Both cases had been on the basis of divorce but can be
applied during division of the deceased estate. The case of Elizabeth Mohamed V Adolf John Magesa,8
provided that in distributing deceased estate the deceased has no power to apply the testamentary
freedom in bequeathing other heirs’ property that he had acquired jointly with his wife, meaning the
testator cannot dispose freely through “last will” matrimonial assets.

The Law of the Child Act9 expressly provides for indiscriminative rights of children towards their parents’
estate, as shown under Section 10 which provides for rights of children to inherit estate of their
deceased father regardless of them being adoptive children or born out of wedlock. In the case of Judith
Patrick Kyamba V Tunsume Mwimbe,10 the court held that a child born out of wedlock is still entitled to
right to inherit the estate of his father even after attaining age of majority, 18 years and above. This
means that even adult children have the right to inherit their parents’ estate together with the minor
children. Moreover, in the case of children born out of wedlock they will still have the right to inherit as
subjected to provisions in The Constitution of The United Republic of Tanzania which advocates for the

5
Cap 29, RE 2019
6
[1983] TLR 32
7
Civil Appeal No. 102 of 2018 Court of Appeal of Tanzania, (Tanga Registry) (Unreported)
8
Probate Administration Appeal No. 14 of 2011
9
Cap 13
10
Probate and Administration Cause No. 50 of 2016, High Court of Tanzania (Dar es Salaam District Registry)
(Unreported)
rights of equality. Moreover, Section 36 (4) of the Law of Child Act, 2009 further proves that children
born out of wedlock are still entitled to get a share of their parents’ estate in respect to religious beliefs
of their biological father. And an adopted child has the right to inherit estate of his adoptive parent who
dies testate as per section 65 (1) of The Law of Child Act as if the child is biological. And if it occurs that
the “last will” was made without prior to the completion of adoption order by the court then the
adopted child has the right to apply to the court to vary testamentary disposition to provide the adopted
child from the estate of deceased adoptive parent as per Section 66 (1) of The Law of Child Act. The Law
of Child Act introduced concept of “Statutory Heirs” to include both biological and adoptive children
thus this should be regarded as an exception to the testamentary freedom.