Eliud Kitime, Law of Succession and Trust in Tanzania

BY
i
ACKNOWLEDGMENT
I am deeply indebted to express my sincere and humble thanksgiving for various

people who have contributed to their best level for ensuring the production and
publication of this book. I would like to give thanks to my best friend Mr.
Alphonce Nachipyangu for his encouragement, research and furtherance of the
ideas gathered that led to publication of this book. Also, I shall be devoid of
thanksgiving if I cannot thank Mr. Emmanuel Moshi, who developed the ideas in
the book, structuring and logical arrangements of the contents of the book.
However, I would moreover like to thank Ms. Gaspar Mtikile, Ms. Mariam
Mwayonga, Ms. Alice Innocent for their encouragement and hopes which
provoked the publication of this book. Furthermore I would like to extend my
gratuitous thanks to all members of the Legal Arena for their contribution and
modification of the book.
Finally, I sincerely and heart fully extend my acknowledgment to Stella Msigwa,

my fiancée, my joyful love for her blessings, efforts, contribution,
encouragement and motivation that made the publication of this book possible.
The same is extended to my begotten parents for blessings. Also, to all those in
one way or another contributed to this book but have not appeared in this page,
I thank you a lot. May Almighty, God bless you abundantly.
i
Eliud Kitime, Law of Succession and Trust in Tanzania 2017
LIST OF STATUTES
 Indian Acts (Application) Ordinance, Cap. 2

 Indian Succession Act, 1865
 The Administrator-General (Powers and Functions) Act, CAP 27 RE 2002
 The Civil Procedure Code, CAP 33 RE 2002
 The Interpretation of laws Act, CAP 1 RE 2002
 The Islamic Law (Restatement) Act, CAP 375 RE 2002
 The Judicature and Application of Laws Act (Cap.358 R.E 2002)
 The Law of Marriage Act (CAP 29 RE 2002)
 The Local Customary Law (Declaration) Order (No. 4) of 1963
 The Magistrates Courts Act (CAP 11 RE 2002)
 The Probate and Administration of Estates Act Cap 352 R.E 2002)
 The Probate Rules of 1963
 The Succession (Non-Christian Asiatic) Act CAP 28 RE 2002
 The Trustees' Incorporation Act, CAP 318 RE 318
ii
TABLE OF CASES
 Abdul Sadiki v. Wilfred Rutakunikwa 1988 TLR 167 (HC)
 Allgood v. Blake (1878) LR 8 Exch. 160 at 162
 Armitage v. Nurse [1998] Ch. 241, 253 (App. Ct. 1997
 Banks v. Goodfellow 1870 LR 5 QB 549 at 569
 Bernado Emphahim v. Holaria Pastory and Gervazi Kaizirege (PCC) Civil
Appeal No. 70 of 1989 (Unreported)
 Birmingham v. Renfrew [1937] CLR
 Brown vs. Skirrow (1902) P 3
 Boyes v. Cook [1880] 14 Ch.D 53
 Celestina Paulo v. Mohamed Hussein 1983 TLR 291 (HC)
 Clementina Tikengwa and Another vs Traseas Kabogi. [1978] LRT 49
 Donald s/o Musa v. Tutito s/o Yonathan [1967] HCD no. 118
 Finch v. Combe (1894) P.191 at 198
 Gattward vs. Knee (1920) P 99
 George A. Mmari and Anande A. Mmari [1995] TLR 146 (HC)
 Hall v. Hall (1868)
 Hodson vs. Barnes
 Hussein Mbwana vs. Amiri Chongwe Civil Appeal No. 1 of 1963 (T)
(Unreported)
 Hussein Mbwana vs. Amiri Chongwe, Civil Appeal No. 1 of 1963 (T)
(Unreported)
 In the Goods of Hale (1950) 2 Irish Reports 362
 In the Estate of Bean (1944) P. 83
 In the Estate of Bravda (1968) 1 WLR 479
iii
 In the Matter of the Estate of Susan Kanini Kilonzo (deceased) Nairobi

HCSC No. 2669 of 2002)
 In the Matter of the Estate of James Ngengi Muigai (1996)
 John Ngomoi v. Mohamed Ally Bofu 1988 TLR 63 (HC)
 Karanja and Another vs. Karanja (2002) 2 KLR 22
 Keech v. Standford (1726)
 Kevern v. Ayres & Another [2014] EWHC 165 (Ch.)
 Knight v. Knight (1840) 49 ER 58
 Kothari v. Qureshi and Another [1967] EA 564
 Lemage v. Good ban (1865) 1 LR 1 P and D 57
 Morgan v Thomas (1853) 8 Exch 303; 155 ER 1362
 Manungwa Lutamila and Others v. Martha Lutamila (1982) TLR 98
 McNeil v. McNeil 798 A.2d 503, 509 (Del. 2002
 Namirimu v. Mulondo & 2 Others (High Court Civil Suit No. 27 OF 2011)
[2015] UGHCFD 48 (23 December 2014)
 Ndewawoisia d/o Ndeamtzo vs Immanuel Malasia (1968) H.C.D. 127
 Nicho v. Nicho (1814)
 Pickles v. Helliwell [1916] 2 Ch. 580
 Re Bravda (1968)
 Re Chalcraft‟s Goods (1948)
 Re Cook‟s Estate (1960)
 Re Cook [1948] Ch. 212
 Re Colling (1972) 1 WLR 1440
 Re Estate of the Late Suleman Kusundwa. [1965] E.A. 247
 Re Goodchild [1997] 1 WLR 1216
iv
 Registered Trustees of Tanzania Assemblies of God v. William Lusito and

Emmanuel Lazaro
 Re Kaptyn Estate 2010 ONSC 4293, 102 O.R. (3d) 1
 Re Krushel Estate (1990) 40 E.T.R. 129
 Re Machauffee [1969] EA 424
 Re Mann‟s Goods (1942) P. 146
 Re Mohamed Husein Sharif Jiwa (1967), HCD n. 238
 Re Poisl's Estate (1955), 44 C.2d 147, 280 P.2d 789
 Re Theriault estate (1997) N.S.J.No.36
 Richards v. Delbridge (1874) LR 18 Eq 11 Court of Appeal
 Ricketts v. Turquand (1848) 1 HL case 472
 Riggs v. Palmer (1889) 115 NY 506
 Robert Lugakingira v. Leonard F Lugakingira (1967) HCD 167
 Rochefoucauld v. Boustead [1897] 1 Ch. 196
 Rondel v. Robinson Estate 2011 ONCA 493, 337 D.L.R. (4th) 193
 Taylor v, Blakelock (1886) 32Ch.D. 560.
 Thomas Matondane v. Didas Mawakalile & 3 Others 1989 TLR 210 (HC)
 The Estate of the late Salum Omari Meremi [1973] LRT No.80
 Wilkinson v. Joughin (1866)
 Winter v. Peratt (1843) 6 M & G 314; 134 ER 914
v
PREFACE
Law of succession and trust is the subject which multidisciplinary due to its
interconnection and interrelation with other legal disciplines. It attracts a lot of
conflicts. It is inevitable due to the fact death is a major occasion for the transfer
of property and the principles relating to it form an important part of any legal
practice. This has led to existence of this law for ensuring the right to inherit is
exercised justifiable and fairly as well as management of the properties of the
deceased to the rightful heirs and beneficiaries. It is the same reason which back
fired the need of having this book as guideline, reference, research resource for
not only academic purpose but also practice of the same.
This book has been prepared so as to provide general understanding on the

law of succession and trust. It is conceptual and theoretical oriented manual. It
aims at imparting underlying conceptual knowledge. It is user friendly since it
has been designed to attract attention and establish the strategies in studying
succession and trust with results desired. It uses simple language as well as
ideas grasping nature. However this book should not be used as final and
conclusive reference during the pursuit of the law of succession and trust study.
Hence students and other stakeholders are needed to refer other literatures cited
and referred herein for further clarification and extensive knowledge
development.
vi
TABLE OF CONTENTS
ACKNOWLEDGMENT ................................................................................................................................... i
LIST OF STATUTES .................................................................................................................................... ii
TABLE OF CASES ....................................................................................................................................... iii
PREFACE ..................................................................................................................................................... vi
CHAPTER ONE ............................................................................................................................................. 1
INTRODUCTION TO LAW OF SUCCESSION ........................................................................................... 1
1.0 Introduction ..................................................................................................................................... 1
1.1 Objectives ........................................................................................................................................ 1
1.2 Succession ....................................................................................................................................... 2
1.3 Types of succession........................................................................................................................ 3
1.3.1 Testate succession.................................................................................................................. 3
1.3.2 Intestate Succession (intestacy)........................................................................................... 4
1.3.3 Types of intestate succession (Intestacy) ........................................................................... 5
1.3.3.1 Total intestacy ................................................................................................................. 5
1.3.3.2 Partial intestacy ............................................................................................................... 6
1.4 Law of succession ........................................................................................................................... 6
1.5 Nature of law of succession .......................................................................................................... 6
1.6 Importance of law of succession .................................................................................................. 8
1.7 Relationship between law of succession and other laws .......................................................... 9
1.7.1 Law of property and Law of succession .............................................................................. 9
1.7.2 Law of succession and Law of equity .................................................................................. 9
1.7.3 Family law and law of succession ...................................................................................... 10
1.7.4 Law of trust and law of succession .................................................................................... 11
1.8 Summary ........................................................................................................................................ 12
1.9 Activities ......................................................................................................................................... 12
CHAPTER TWO .......................................................................................................................................... 14
SOURCES OF LAW OF SUCCESSION ..................................................................................................... 14
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2.0 Introduction ................................................................................................................................... 14

2.1 Objectives ...................................................................................................................................... 14
2.2 Sources of law of succession in Tanzania ................................................................................. 15
2.2.1 Statute law............................................................................................................................. 15
2.2.1.1 Relevant laws under statute law ................................................................................ 16
2.2.1.2 Provision of law ............................................................................................................. 16
2.2.1.3 Application ..................................................................................................................... 18
2.2.2 Customary laws ..................................................................................................................... 19
2.2.2.1 Relevant law .................................................................................................................. 19
2.2.2.2 Application ..................................................................................................................... 20
2.2.3 Religious laws ........................................................................................................................ 21
2.2.3.1 Relevant laws ................................................................................................................ 21
2.2.3.2 Application ..................................................................................................................... 22
2.2.4 Hindu laws ............................................................................................................................. 23
2.2.5 Non-Christian Asiatic law ..................................................................................................... 24
2.2.6 Case laws ............................................................................................................................... 25
2.3 Summary ........................................................................................................................................ 26
2.4 Activities ......................................................................................................................................... 27
CHAPTER THREE....................................................................................................................................... 29
NATURE AND IMPORTANCE OF WILLS ................................................................................................. 29
3.0 Introduction ................................................................................................................................... 29
3.1 Objectives ...................................................................................................................................... 29
3.2 Meaning of Will ............................................................................................................................. 29
3.3 Codicil ............................................................................................................................................. 30
3.4 Characteristics of will ................................................................................................................... 31
3.4.1 Legal declaration ................................................................................................................... 31
3.4.2 Disposition of property......................................................................................................... 31
3.4.3 Expression of intention ........................................................................................................ 31
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3.4.4 Ambulatory ............................................................................................................................ 32

3.4.5 Proof of will ............................................................................................................................ 32
3.4.6 Public record .......................................................................................................................... 33
3.4.7 Revocability............................................................................................................................ 33
3.5 Significance of wills ...................................................................................................................... 34
3.5.1 Execution of testator‟s intention ......................................................................................... 34
3.5.2 Disclosure of deceased property ........................................................................................ 34
3.5.3 Directions on distribution of property ................................................................................ 34
3.5.4 Direction on disposal of deceased body ............................................................................ 35
3.5.5 Expression of final wishes ................................................................................................... 35
3.5.6 Preservation of assets after death ..................................................................................... 35
3.5.7 Avoidance of conflict over assets ....................................................................................... 36
3.5.8 Avoidance of rules of intestacy ........................................................................................... 36
3.5.9 Other people benefits........................................................................................................... 37
3.5.10 Appointment of executors ................................................................................................... 37
3.5.11 Appointment of guardians ................................................................................................... 37
3.5.12 Tax Planning .......................................................................................................................... 38
3.6 Summary ........................................................................................................................................ 38
3.7 Activities ......................................................................................................................................... 39
3.8 References ..................................................................................................................................... 39
CHAPTER FOUR ........................................................................................................................................ 41
CLASSIFICATION OF WILLS ................................................................................................................... 41
4.0 Introduction ................................................................................................................................... 41
4.1 Objectives ...................................................................................................................................... 41
4.2 Classification of wills .................................................................................................................... 42
4.2.1 Privileged Wills ...................................................................................................................... 42
4.2.2 Unprivileged Wills ................................................................................................................. 44
4.2.3 Oral Will .................................................................................................................................. 45
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4.2.4 Mutual Will ............................................................................................................................. 46

4.2.5 Joint Will................................................................................................................................. 49
4.2.6 Contingent/Conditional Will ................................................................................................. 50
4.2.7 Sham Wills ............................................................................................................................. 51
4.3 Summary ........................................................................................................................................ 51
4.4 Activities ......................................................................................................................................... 53
4.5 References ..................................................................................................................................... 53
CHAPTER FIVE .......................................................................................................................................... 55
CREATION OF WILLS AND THEIR VALIDITY ....................................................................................... 55
5.0 Introduction ................................................................................................................................... 55
5.1 Objectives ...................................................................................................................................... 55
5.2 Testamentary capacity ................................................................................................................. 56
5.3 Testamentary formalities ............................................................................................................. 58
5.3.1 Writing .................................................................................................................................... 59
5.3.2 Signature ................................................................................................................................ 59
5.3.3 Witnesses ............................................................................................................................... 61
5.3.4 Attestation.............................................................................................................................. 63
5.3.5 Presumption of due execution ............................................................................................ 64
5.4 Validity of Will................................................................................................................................ 65
5.4.1 Animus testandi “intention to make will” .......................................................................... 65
5.4.2 Testamentary capacity ......................................................................................................... 65
5.4.3 Genuineness of will............................................................................................................... 66
5.4.4 Testamentary formalities ..................................................................................................... 67
5.5 Summary ........................................................................................................................................ 68
5.6 Activities ......................................................................................................................................... 69
5.7 References ..................................................................................................................................... 69
CHAPTER SIX ............................................................................................................................................ 71
REVOCATION AND ALTERATION OF WILL........................................................................................... 71
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6.0 Introduction ................................................................................................................................... 71

6.1 Objectives ...................................................................................................................................... 71
6.2 Revocation ..................................................................................................................................... 72
6.2.1 Implied Revocation ............................................................................................................... 72
6.2.2 Express or Deliberate revocation........................................................................................ 73
6.3 Circumstances which can revoke a will ..................................................................................... 74
6.3.1 Marriage ................................................................................................................................. 74
6.3.2 Divorce ................................................................................................................................... 75
6.3.3 Destruction ............................................................................................................................ 76
6.3.4 Alteration of part of the will ................................................................................................ 77
6.4 Summary ........................................................................................................................................ 78
6.5 Activities ......................................................................................................................................... 80
6.6 References ..................................................................................................................................... 80
CHAPTER SEVEN ....................................................................................................................................... 82
INTERPRETATION AND CONSTRUCTION OF WILLS .......................................................................... 82
7.0 Introduction ................................................................................................................................... 82
7.1 Objectives ...................................................................................................................................... 82
7.2 Construction of Wills .................................................................................................................... 83
7.3 Interpretation of Wills .................................................................................................................. 83
7.4 Principles of Interpretation and Construction of Wills............................................................. 84
7.5 Techniques of Interpretation and Construction ....................................................................... 86
7.5.1 Words to be Given Their Ordinary Grammatical Sense .................................................. 86
7.5.2 Words Not to Be Read in Isolation ..................................................................................... 86
7.5.3 The Dictionary Principle ....................................................................................................... 87
7.5.4 Technical Words.................................................................................................................... 87
7.5.5 Words may have secondary meanings .............................................................................. 88
7.5.6 Words may have particular meanings ............................................................................... 88
7.5.7 Later provisions will take precedence ................................................................................ 89
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7.6 Approaches to Interpretation of Wills........................................................................................ 90

7.6.1 Meaning of words in Will when the Will was made ......................................................... 90
7.6.2 Meaning of words in Will at the time of death ................................................................. 90
7.6.3 Mixed Approach .................................................................................................................... 91
7.7 Goal of Interpretation of Wills .................................................................................................... 92
7.8 Role of Court in interpretation and construction of wills ........................................................ 92
7.8.1 Armchair rule ......................................................................................................................... 92
7.8.2 Ambiguous words ................................................................................................................. 94
7.8.3 Meaningless words ............................................................................................................... 94
7.9 Summary ........................................................................................................................................ 95
7.10 Activities ......................................................................................................................................... 96
7.11 References ..................................................................................................................................... 97
CHAPTER EIGHT ....................................................................................................................................... 98
INTESTACY RULES IN TANZANIA .......................................................................................................... 98
8.0 Introduction ................................................................................................................................... 98
8.1 Objectives ...................................................................................................................................... 99
8.2 Rules of intestacy ......................................................................................................................... 99
8.2.1 Rules of intestacy for Christians and European origin .................................................. 100
8.2.2 Customary rules of intestacy............................................................................................. 103
8.2.2.1 Relevant laws .............................................................................................................. 104
8.2.2.2 Administrator ............................................................................................................... 104
8.2.2.3 Clan Council ................................................................................................................. 105
8.2.2.4 Male and female heirs ................................................................................................ 105
8.2.2.5 Properties for inheritance .......................................................................................... 106
8.2.2.6 Degrees of inheritance ............................................................................................... 108
8.2.2.7 Disinheritance rules .................................................................................................... 111
8.2.3 Islamic rules of intestacy ................................................................................................... 112
8.2.3.1 Principle Heirs.............................................................................................................. 113
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8.2.3.2 Islamic Inheritance Scenarios for Male Deceased ................................................. 113

8.2.3.3 Tests for application of Islamic rules ....................................................................... 115
8.2.4 Hindu rules of intestacy ..................................................................................................... 118
8.2.5 Non-Christian Asiatic rules of intestacy ........................................................................... 119
8.3 Summary ...................................................................................................................................... 120
8.4 Activities ....................................................................................................................................... 122
8.5 References ................................................................................................................................... 122
CHAPTER NINE ....................................................................................................................................... 124
PROTECTION OF ESTATE...................................................................................................................... 124
9.0 Introduction ................................................................................................................................. 124
9.1 Objectives .................................................................................................................................... 124
9.2 Appointment of receiver pending grant .................................................................................. 125
9.2.1 Who can apply for appointment of receiver pending grant? ....................................... 125
9.2.2 Mode of application for appointment of receiver pending grant ................................. 126
9.2.3 Ground for appointment of receiver pending grant ...................................................... 126
9.2.4 Immunity of appointed receiver pending grant ............................................................. 126
9.2.5 Refund of costs of receiver pending grant...................................................................... 127
9.3 Executor of his own wrong........................................................................................................ 128
9.3.1 Executor of his own wrong defined ................................................................................. 128
9.3.2 Illustrations of executor of his own wrong ..................................................................... 129
9.3.3 Liability of executor of his own wrong............................................................................. 129
9.3.4 Intermeddling person becomes not executor of his own wrong ................................. 130
9.4 Penalty for contempt .................................................................................................................. 131
9.5 Order of sale................................................................................................................................ 132
9.6 Summary ...................................................................................................................................... 133
9.7 Activities ....................................................................................................................................... 134
9.8 References ................................................................................................................................... 134
CHAPTER TEN ......................................................................................................................................... 136
xiii
GRANTS OF REPRESENTATION............................................................................................................ 136

10.0 Introduction ................................................................................................................................. 136
10.1 Objectives .................................................................................................................................... 136
10.2 Grant of representation ............................................................................................................. 137
10.3 Categories of Grants of Representation .................................................................................. 138
10.3.1 Grant of probate ................................................................................................................. 138
10.3.2 Grant of letters of administration ..................................................................................... 139
10.3.3 Grant of letters of administration with will annexed ..................................................... 140
10.3.4 Special grants ...................................................................................................................... 142
10.3.4.1 Grant of letter of administration until prior will...................................................... 143
10.3.4.2 Grant of representation during minority ................................................................. 143
10.3.4.3 Grant of representation during insanity .................................................................. 143
10.3.4.4 Pendente lite................................................................................................................ 144
10.3.4.5 Grant of letter of administration for preservation and collection of estate........ 144
10.3.4.6 Grant of representation for trust property .............................................................. 144
10.3.4.7 Grant of representation upon absence of executor ............................................... 145
10.4 Number of executors and administrator for grant ................................................................. 145
10.5 Effects of grants of representation .......................................................................................... 146
10.5.1 Exception.............................................................................................................................. 146
10.5.2 Lapse of time ....................................................................................................................... 146
10.5.3 Special purpose ................................................................................................................... 147
10.5.4 Death of administrator or executor.................................................................................. 147
10.6 Summary ...................................................................................................................................... 148
10.7 Activities ....................................................................................................................................... 149
10.8 References ................................................................................................................................... 150
CHAPTER ELEVEN ................................................................................................................................... 152
APPLICATION FOR GRANTS OF REPRESENTATION ......................................................................... 152
11.0 Introduction ................................................................................................................................. 152
xiv
11.1 Objectives .................................................................................................................................... 152

11.2 Requirement before application ............................................................................................... 153
11.3 Who may apply for grant of representation ........................................................................... 154
11.4 Application for letter of administration .................................................................................... 155
11.5 Application for probate .............................................................................................................. 155
11.5.1 Petition for probate when there is written Will .............................................................. 155
11.5.2 Petition for probate when there is oral will..................................................................... 156
11.5.3 Petition for probate when will is destroyed or lost ........................................................ 157
11.5.4 Petition for probate of copy or draft of will .................................................................... 158
11.6 Application by Trust Corporation .............................................................................................. 158
11.7 Application by attorneys ............................................................................................................ 159
11.8 Application by guardian ............................................................................................................. 160
11.9 Application after death of sole executor or administrator .................................................... 161
11.10 Application upon expiry of limited grant ............................................................................. 161
11.11 Application by creditor ........................................................................................................... 162
11.12 Application pending determination of proceedings ........................................................... 162
11.13 Application for collection and preservation of property .................................................... 162
11.14 Application for a suit .............................................................................................................. 163
11.15 Application for trust property ................................................................................................ 164
11.16 Summary .................................................................................................................................. 165
11.17 Activities ................................................................................................................................... 166
11.18 References ............................................................................................................................... 167
CHAPTER TWELVE .................................................................................................................................. 168
NON-CONTENTIOUS AND CONTENTIOUS PROCEEDINGS .............................................................. 168
12.0 Introduction ................................................................................................................................. 168
12.1 Objectives .................................................................................................................................... 168
12.2 Non-contentious Proceedings ................................................................................................... 169
12.2.1 Citation ................................................................................................................................. 169
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12.2.1.1 Meaning of citation ..................................................................................................... 169

12.2.1.2 Service of citation ....................................................................................................... 170
12.2.1.3 Types of citation ......................................................................................................... 170
12.2.2 Consent ................................................................................................................................ 172
12.2.2.1 Requirement of consent ............................................................................................ 172
12.2.2.2 Persons whose consent is required .......................................................................... 172
12.2.2.3 Absence of consent .................................................................................................... 173
12.2.3 Renunciation of executorship............................................................................................ 174
12.2.3.1 Renunciation defined.................................................................................................. 174
12.2.3.2 Requirements of renunciation ................................................................................... 174
12.2.3.3 Right to renounce ....................................................................................................... 175
12.2.3.4 Citation to renounce ................................................................................................... 175
12.2.3.5 Service .......................................................................................................................... 177
12.2.3.6 Effect of renunciation ................................................................................................. 177
12.2.4 Rectification of errors in grants of representation ......................................................... 177
12.3 Contentious proceedings ........................................................................................................... 178
12.3.1 Revocation of grants of representation ........................................................................... 179
12.3.1.1 Application for revocation .......................................................................................... 179
12.3.1.2 Reasons for revocation .............................................................................................. 180
12.3.1.3 Order of revocation .................................................................................................... 180
12.3.1.4 Effects of revocation of grants.................................................................................. 181
12.3.2 Caveats ................................................................................................................................. 181
12.3.2.1 Locus standi ................................................................................................................. 182
12.3.2.2 Where to enter ............................................................................................................ 182
12.3.2.3 Service .......................................................................................................................... 183
12.3.2.4 Effects of caveats........................................................................................................ 183
12.3.3 Objections to grants of representation............................................................................ 184
12.3.3.1 Grounds of objection .................................................................................................. 185
xvi
12.4 Summary ...................................................................................................................................... 186

12.5 Activities ....................................................................................................................................... 186
12.6 References ................................................................................................................................... 187
CHAPTER THIRTEEN .............................................................................................................................. 189
ADMINISTRATION OF ESTATE ............................................................................................................. 189
13.0 Introduction ................................................................................................................................. 189
13.1 Objectives .................................................................................................................................... 189
13.2 Functions of personal representative ...................................................................................... 190
13.3 Powers of the administrator or executor................................................................................. 190
13.3.1 Enforce cause of actions .................................................................................................... 190
13.3.2 Expenditure.......................................................................................................................... 191
13.3.3 Investment........................................................................................................................... 192
13.4 Duties of executors or administrators ..................................................................................... 193
13.4.1 Collection of property and debts of deceased person ................................................... 193
13.4.2 Preservation of property .................................................................................................... 194
13.4.3 Debts payment .................................................................................................................... 194
13.4.4 Distribution of estate .......................................................................................................... 195
13.4.5 Duty not to derive any benefit from office ..................................................................... 196
13.4.6 Funeral provision ................................................................................................................ 196
13.4.7 Inventory and accounts ..................................................................................................... 197
13.5 Summary ...................................................................................................................................... 199
13.6 Activities ....................................................................................................................................... 200
13.7 References ................................................................................................................................... 200
CHAPTER FOURTEEN ............................................................................................................................. 202
JURISDICTION IN PROBATE AND ADMINISTRATION OF ESTATES............................................... 202
14.0 Introduction ................................................................................................................................. 202
14.1 Objectives .................................................................................................................................... 202
14.2 Jurisdiction ................................................................................................................................... 203
xvii
14.3 Court ............................................................................................................................................. 203

14.4 High court .................................................................................................................................... 203
14.5 District Delegate ......................................................................................................................... 205
14.6 District Court ............................................................................................................................... 206
14.7 Primary court ............................................................................................................................... 209
14.8 Summary ...................................................................................................................................... 210
14.9 Activities ....................................................................................................................................... 211
14.10 References ............................................................................................................................... 212
CHAPTER FIFTEEN ................................................................................................................................. 214
INTRODUCTION TO LAW OF TRUST ................................................................................................... 214
15.0 Introduction ................................................................................................................................. 214
15.1 Objectives .................................................................................................................................... 214
15.2 Trust ............................................................................................................................................. 215
15.2.1 Trust defined ....................................................................................................................... 215
15.2.2 Historical foundations of trust........................................................................................... 216
15.2.3 Elements of trust ................................................................................................................ 219
15.2.4 Characteristics of trust ....................................................................................................... 220
15.2.5 Uses of trust ........................................................................................................................ 221
15.2.6 Significance of trusts .......................................................................................................... 222
15.2.6.1 Trust avoids probate .................................................................................................. 223
15.2.6.2 Trust helps during incapacitation ............................................................................. 223
15.2.6.3 Trust controls inheritances ........................................................................................ 224
15.2.6.4 Trusts can provide funds for educational purposes .............................................. 225
15.2.6.5 Trusts to benefit charities and institutions.............................................................. 225
15.2.6.6 Trusts avoid taxes....................................................................................................... 226
15.3 Law of Trust ................................................................................................................................ 227
15.3.1 Nature of trust law ............................................................................................................. 227
15.3.2 Basic principles of trust law............................................................................................... 228
xviii
15.4 Summary ...................................................................................................................................... 229

15.5 Activities ....................................................................................................................................... 230
15.6 References ................................................................................................................................... 231
CHAPTER SIXTEEN ................................................................................................................................. 232
CLASSIFICATION OF TRUSTS............................................................................................................... 232
16.0 Introduction ................................................................................................................................. 232
16.1 Objectives .................................................................................................................................... 232
16.2 Categories of trust ...................................................................................................................... 233
16.2.1 Express Trust....................................................................................................................... 233
16.2.1.1 Meaning of express trust ........................................................................................... 233
16.2.1.2 Requirements of express trust .................................................................................. 234
16.2.1.3 Creation of express trust ........................................................................................... 235
16.2.1.4 Characteristics of express trust ................................................................................ 236
16.2.2 Implied or Resulting Trust ................................................................................................. 237
16.2.2.1 Nature of implied trust ............................................................................................... 237
16.2.3 Constructive Trusts ............................................................................................................. 238
16.2.3.1 Meaning of constructive trust ................................................................................... 238
16.2.3.2 Occurrence of trust..................................................................................................... 239
16.2.3.3 Uses of constructive trust .......................................................................................... 239
16.2.4 Living Trusts ........................................................................................................................ 240
16.2.4.1 Rationale behind living trust ..................................................................................... 240
16.2.4.2 Alteration of living trust ............................................................................................. 241
16.2.5 Testamentary Trusts .......................................................................................................... 241
16.2.5.1 Meaning of testamentary trust ................................................................................. 242
16.2.5.2 Rationale behind testamentary trust ....................................................................... 242
16.2.5.3 Modification of testamentary trust ........................................................................... 242
16.2.6 Private trust ......................................................................................................................... 243
16.2.7 Public trusts ......................................................................................................................... 243
xix
16.2.8 Discretionary trusts ............................................................................................................ 243

16.2.9 Protective trusts .................................................................................................................. 245
16.3 Summary ...................................................................................................................................... 246
16.4 Activities ....................................................................................................................................... 247
16.5 References ................................................................................................................................... 247
CHAPTER SEVENTEEN ........................................................................................................................... 249
CREATION OF TRUSTS .......................................................................................................................... 249
17.0 Introduction ................................................................................................................................. 249
17.1 Objectives .................................................................................................................................... 249
17.2 Creation of trust .......................................................................................................................... 250
17.3 Capacity of creation of trust...................................................................................................... 250
17.4 Three certainties ......................................................................................................................... 251
17.5 Properties for trust creation ...................................................................................................... 253
17.6 Formalities ................................................................................................................................... 253
17.6.1 Express declaration ............................................................................................................ 253
17.6.2 Transfers of property ......................................................................................................... 255
17.6.3 Powers of Appointment...................................................................................................... 255
17.6.4 Contracts trusts ................................................................................................................... 255
17.6.5 Statute .................................................................................................................................. 256
17.6.6 Judicial implication .............................................................................................................. 256
17.7 Summary ...................................................................................................................................... 257
17.8 Activities ....................................................................................................................................... 258
17.9 References ................................................................................................................................... 258
CHAPTER EIGHTEEN .............................................................................................................................. 260
PARTIES TO TRUST AND THEIR ROLES ............................................................................................. 260
18.0 Introduction ................................................................................................................................. 260
18.1 Objectives .................................................................................................................................... 260
18.2 Parties to trust............................................................................................................................. 261
xx
18.2.1 Settlor ................................................................................................................................... 261

18.2.2 Trustee ................................................................................................................................. 262
18.2.2.1 Meaning ........................................................................................................................ 263
18.2.2.2 Powers of trustee ........................................................................................................ 263
18.2.2.3 Duties of trustees ....................................................................................................... 265
18.2.3 Beneficiary ........................................................................................................................... 267
18.2.3.1 Meaning of beneficiary ............................................................................................... 267
18.2.3.2 Rights of beneficiaries ................................................................................................ 268
18.3 Summary ...................................................................................................................................... 269
18.4 Activities ....................................................................................................................................... 270
18.5 References ................................................................................................................................... 270
CHAPTER NINETEEN .............................................................................................................................. 272
BREACH OF TRUST AND ITS REMEDIES ............................................................................................ 272
19.0 Introduction ................................................................................................................................. 272
19.1 Objectives .................................................................................................................................... 272
19.2 Breach of trust ............................................................................................................................ 273
19.2.1 Meaning of breach of trust ................................................................................................ 273
19.2.2 Basis of breach of trust ...................................................................................................... 274
19.2.3 Circumstances of breach of trust ..................................................................................... 274
19.3 Liability ......................................................................................................................................... 276
19.3.1 Nature of liability................................................................................................................. 277
19.3.2 Limitation of liability ........................................................................................................... 278
19.3.3 Personal liability of trustee ................................................................................................ 278
19.4 Remedies for breach of trust .................................................................................................... 279
19.4.1 Remedies against trustee .................................................................................................. 281
19.5 Summary ...................................................................................................................................... 282
19.6 Activities ....................................................................................................................................... 284
19.7 References ................................................................................................................................... 284
xxi
CHAPTER TWENTY ................................................................................................................................. 286

MODIFICATION AND TERMINATION OF TRUST ............................................................................... 286
20.0 Introduction ................................................................................................................................. 286
20.1 Objectives .................................................................................................................................... 286
20.2 Modification and termination of trust ...................................................................................... 287
20.3 Consent of beneficiaries upon modification of trust .............................................................. 287
20.4 Trust Modification ....................................................................................................................... 289
20.4.1 Reason for trust modification............................................................................................ 289
20.4.2 Methods of trust modification ........................................................................................... 290
20.5 Trust termination ........................................................................................................................ 290
20.5.1 Grounds of trust termination ............................................................................................ 290
20.5.2 Methods of trust termination ............................................................................................ 291
20.5.2.1 Revocation ................................................................................................................... 291
20.5.2.2 Invalidity declaration .................................................................................................. 292
20.5.2.3 Dissolution of partnership that created trust .......................................................... 292
20.5.2.4 Lapse of time ............................................................................................................... 292
20.5.2.5 Consent of beneficiaries............................................................................................. 293
20.5.2.6 Failure of material purpose ....................................................................................... 293
20.5.2.7 Destruction of trust property .................................................................................... 293
20.5.3 Effects of trust termination ............................................................................................... 293
20.6 Summary ...................................................................................................................................... 294
20.7 Activities ....................................................................................................................................... 295
20.8 References ................................................................................................................................... 295
xxii
CHAPTER ONE
INTRODUCTION TO LAW OF SUCCESSION
1.0 Introduction
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. Nevertheless, each state in the world has its own
rules and regulations governing succession matters even though succession is
same concept to all states. Variation of the rules and regulations of inheritance is
sourced from the variation of culture, economy and legal systems.
Therefore in this chapter we are going to learn the introduction issues about law
of succession so as to create a better foundation for understanding of the law of
succession and trust. Under this chapter we are going to cover various issues
such as conceptual foundation of law of succession and its terms without
disregarding their importance.
1.1Objectives
At the end of this chapter you should have:-
 Acquired knowledge and understanding of the basic concepts

of succession, testacy, intestacy, executor, administration,
probate, letter of administration, administrator, testator etc.
 Acquainted with knowledge and understanding on
1
differences between testate and intestate succession, partial

and total intestacy.
 Developed ability to describe nature and importance of law
of succession.
 Acquainted with ability to discuss the interface between law
of succession and other branches of law.
1.2 Succession
Succession refers to the transfer of title to property from an individual who is

dead but formerly was entitled to another person who is surviving his or her
death.1 It occurs when an estate or property which a man has by descent, as
heir to another or which he may transmit to another, as his heir. Also, succession
entails anything a person receives from the estate of a decedent, whether by the
laws of descent or as a beneficiary of a will or trust.
The vital issues in succession are death of property owner, the devolution of
property to the heirs and beneficiaries under the law of descent and distribution. 2
This means that succession of the property cannot occur when owner of such
property is alive. Hence succession becomes after the death of the owner. Also,
the devolution of property of the deceased is normally to the heirs and or
beneficiaries. This devolution is done under guidance and control of the law of
descent and distribution.
1
See Rwebangira, M. K. and Mukoyogo, M. C., The law of Inheritance in Tanzania: A status
Report, WLEA Publication No. 4, Nairobi , Kenya, 1995
2
See Black’s Law Dictionary, 5th Edition
2
Succession involves acquisition of the title whereby a man on the death of his
ancestor acquires his estate by right of representation, as his heir at law. 3 An
heir, therefore, is he upon whom the law casts the estate immediately on the
death of the ancestor.
This was considered and cemented by Per Owen, J in re Bradley's Estate4

when explained that “succession is a proper term to denote the devolution of
title to property from an ancestor to his immediate heir.”
1.3Types of succession
There are basically two types of succession. These types are categorised based
on how the person dies in relation to will. These are testate and intestate
succession.
1.3.1 Testate succession
This is devolution of estate of person upon the death according to the will or
testament. Hence succession is based on the provision of the will of the
deceased person.5 The male person making the will is called testator while the
female person making the will is called testatrix.
The will made appoints the person to manage and distribute the property of
deceased person. Such person appointed by will to manage and distribute the
3
2 Andrews, American LAW (2nd ed.) 1131
4
185 WVis. 393, 201 N. W. 973, 38 A. L. R. 1 (1925)
5
See W. Musyoka, Law of Succession, Law Publishing (T) Ltd, Dar es Salaam-Tanzania,
2010, at page 6
3
estate of deceased person is called executor. The executor drives his or her
authority to manage and distribute the property of the deceased person from the
will. The executor has to manage and distribute the property of deceased person
according to the terms and conditions of the will.
Despite the fact that executor is empowered by the will of the deceased person,
he or she has be granted with probate by the competent court so as to confirm
and approve his or her authority to manage and distribute the property of the
deceased person accordingly. Probate is certificate which proves the genuineness
of the will and executor is authorised to dispose estate of the deceased person
accordingly.
1.3.2 Intestate Succession (intestacy)
This refers the devolution of estate upon death of a person which occurs when a
person dies without will or dying with a will which is invalid in the eyes of the
law. This occurs when the person makes no will for the property or makes the
will but such will if invalid basing on the requirements of the law on creation of
the will.6
The devolution of property shall be done according to the rules of intestacy.

Rules of intestacy can be statute, customary, Islamic or Hindu. These rules
determine who is entitled and to what extent is entitled accordingly. The male
person appointed to manage and distribute the estate of deceased person when
there is intestacy is called administrator while the female person appointed to
6
W. Musyoka, Law of Succession, Law Publishing (T) Ltd, Dar es Salaam-Tanzania, 2010,
at page 6
4
manage and distribute the estate of deceased upon intestacy is called

administratix. The administrator derives his or her authority from letter of
administration granted by the court upon the application.
Generally, the heirs under rules of intestacy are immediate family and distant
relatives. Mostly immediate family includes spouse and children. Distant relatives
include parents, aunties, uncles, nephews, nieces, cousins. The order of
inheritance is immediate family then distant relatives. However when there is no
immediate family or distant relatives, the estate devolves to the state.
1.3.3 Types of intestate succession (Intestacy)
Intestate succession can also be categorised two main types. This classification is
based on the circumstances under which such intestacy may occur. These are
total intestacy and partial intestacy.
1.3.3.1 Total intestacy
It is the category of intestacy which occurs when the following circumstances

occur for the purpose of succession or inheritance: the circumstances are as
hereby explained
(a) where a person dies without leaving a Will at all

(b) a person dies leaving a defective Will, for example,
where the said Will is not attested according to the law
(c) When will become inoperative for example where a
legatee predeceases the executor (intestacy on the
beneficial interest but not as to a legal estate).
5
1.3.3.2 Partial intestacy
This is kind of intestacy which occurs when the deceases person made a will for
some of the estate but other estates are not disposed with a will. This may occur
where only a part of the beneficial interest is disposed of.
1.4Law of succession
This is the branch of law which deals with transmission or devolution of property
upon death of the owner.7 It provides mechanism by which property devolves
from the deceased owner to the people who are surviving him. It provides for
procedures by which entitled beneficiaries and heirs inherit the estate of
deceased person.
Law of succession prescribe rules, principles and regulations affecting who is

entitled to receive what from the estate of a deceased person. Some
beneficiaries, such as spouses and children to mention but few, have a right to
claim an inheritance and can even do so despite the express terms of a will.
Henceforth it ensures the rightful claimants inherit the estate of deceased
person.
1.5Nature of law of succession
In every system of law provision has to be made for a readjustment of things or

goods on the death of the human beings who owned and enjoyed them.
7
2010
6
Succession, in the sense of the partition or redistribution of the property of a

former owner is, in modern systems of law, subject to many rules. Such rules
may be based on the will of a deceased person.8
However, there are cases in which a will9 cannot be expressed and eventuality,
there need to be some broadly accepted rules upon which the property shall
devolve upon those succeeding him.
There can be no doubt, however, that these rules primarily are the
characteristics of the social conditions in which that individual lived. They
represent the view of society at large as to what ought to be the normal course
of succession in the readjustment of property after the death of a citizen.
Thus in such cases, there are rules whereunder the aggregate of things and
claims relinquished by a deceased person may pass to relatives or other persons
who stood near him in a way determined by law.
There are also, simultaneously, the rules which determine such devolution,
should several persons of the kind stand equally near in the eye of the law and
the consequence would be a division of the inheritance.
Therefore the law of succession comprises of rules which govern devolution of

property, on the death of the person, upon other persons solely on account of
their relationship with the former. It involves the receipt of a property from an
ancestor under the laws of intestacy that is by bequest or device. However over
quest in not limited to such devolution.
8
See Mulla, Hindu Law (2), (Butterworths, New Delhi, 2001), 277
9
Bryan A. Garner (ed.), Black Law Dictionary, (West Group. St. Minn, 7th edition), 787.
7
1.6Importance of law of succession
Law of succession provides an avenue for creditors to come forward seeking

satisfaction before the assets are distributed to the inheritors. 10 This can be
ensured when the competent court 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. This is all well and good for creditors
and potential estate challengers.
Moreover, law of succession provides mechanism to determine the rightful

claimant that can benefit from the estate of deceased according to the rules of
intestacy and testamentary dispositions.11 This facilitate the administration of
justice in the devolution of the property of person upon his her death. It ensures
that who deserves what estate of the deceased person.
Furthermore, law of succession 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. Therefore through law of succession, estate of deceased person are taken
care of, improved and managed.
Generally law of succession prescribes the rules which determine the devolution
of a person‟s estate after his death and all matters incidental thereto. It identifies
the beneficiaries who are entitled to succeed to the deceased's estate, and the
10
See http://frankkraft.com/inheritance-law-understanding-the-importance/ retrieved
on 13th September 2016
11
See J. Razack, Inheritance and Succession, Rights of Women and Daughters under
Personal Laws, Lex Orates, 2014,
8
extent of the benefits they are to receive, and determines the different rights
and duties that persons.
1.7 Relationship between law of succession and other laws
There is intimate relationship between law of succession and other areas of law
but particularly law of property, equity, family and law of trusts.
1.7.1 Law of property and Law of succession
Law of succession involves transmission of property upon death of person to the

one who survives the deceased person. Law of property involves the
entitlements of rights and interests upon the property. Law of property regulates
also how the property can be acquired.
These laws interlink in the sense that succession is one of the means of the
acquisition of the property.12 Hence law of succession is part of the law of
property because it regulates on how the person can acquire the property
through succession or inheritance.
Also, prior determination of the succession there must be establishment of

whether the property belonged to the deceased person. Such determination
involves principles of law of property. The principles of law of property applicable
are right of survivorship, and doctrine of commorientes.
1.7.2 Law of succession and Law of equity
12
2010
9
Law of equity concerns itself with the principles of fairness. Law of succession
focuses on the devolution of estate of upon death. There are principles of equity
which are best applicable during the devolution of the estate upon death of the
owner to the heirs and beneficiaries.13
Some of those doctrines of equity applicable to succession are conversion, no

one can benefit from his own wrong, presumption of satisfaction to mention but
a few. It was evidenced in the case of Riggs v. Palmer14 where the respondent,
a lad of sixteen years of age, being aware of the provisions in his grandfather's
will, which constituted him the residuary legatee of the testator's estate, caused
his death by poison in 1882.
For this crime he was tried and was convicted of murder in the second degree,
and at the time of the commencement of this action he was serving out his
sentence in the state reformatory. This action was brought by two of the children
of the testator for the purpose of having those provisions of the will in the
respondent's favor canceled and annulled.
The court held out that no one shall be permitted to profit by his own fraud, or
to take advantage of his own wrong, or to found any claim upon his own iniquity,
or to acquire property by his own crime.
1.7.3 Family law and law of succession
Law of succession is part of the family law because it involves itself with the
demise of the property of family members and it determines who is entitled to
13
See W. Musyoka, ibid
14
(1889), 115 NY 506
10
such estate of the deceased family whereby among of them are surviving family
members.15
The heirs and or beneficiaries of most jurisdictions are family members such as
widow couple, children, grandchildren, parents and other relatives. To determine
the consanguinity of the relatives is matter of family law hence both law of
succession and family law are interdependent.
1.7.4 Law of trust and law of succession
Law of trust governs relationship whereby property is held by one party for the
benefit of another. A trust is created by a settlor, who transfers property to a
trustee. The trustee holds that property for the trust's beneficiaries. 16 During the
administration of estate, the issue of trust arises because there is interval
between the death and distribution of the estate to the heirs or beneficiaries.
The personal representatives of the deceased person hold the estate or property
for the benefit and interest of the entitled heirs or beneficiaries. Hence this
position affirms trust issues. Hence trust can be part of the succession.
Hence the nature of relationship between the personal representatives of the

deceased person while holding the property and beneficiaries of the property of
the deceased person is fiduciary one. Also, trust can be created through will
15
2010
16
See A. W., Scott, Importance of trust, 39 U. Colo. L. Rev. 177 (1966-1967)
11
which is part of succession. Hence this will becomes subject to both law of
succession and trust.17
1.8 Summary
In this chapter we have learnt about some introduction issues of law

of succession. 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 is devolution of property upon death of owner.
Law of succession involves the receipt of a property from an ancestor
under the laws of intestacy that is by bequest or device. Moreover
law of succession identifies the beneficiaries who 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. Law of succession even if it is distinctive it is closely related
to some other branches of law such as law of property, trust, equity
and family laws. Their relations are on the interdependence of their
operation and application.
1.9 Activities
1. Define the following terms:-

(i) Succession
(ii) Testate succession
(iii) Intestate succession
17
See A. W., Scott, Importance of trust, 39 U. Colo. L. Rev. 177 (1966-1967)
12
(iv) Law of succession

2. Distinguish the following phrases:-
(i) Probate and letter of administration
(ii) Administrator and executor
(iii) Partial and total intestacy
(iv) Testator and testatrix
(v) Administrator and administratix
3. Describe the nature and significance of law of
succession.
4. “There is close interface between law of succession and
law of trust, equity, property and family laws.” Discuss
1.10 References
Scott, A. W., Importance of trust, 39 U. Colo. L. Rev. 177 (1966-

1967)
Garner B. A. (ed.), Black Law Dictionary, (West Group. St. Minn,

7th edition), 787
Razack, J. Inheritance and Succession, Rights of Women and

Daughters under Personal Laws, Lex Orates, 2014
Mulla, Hindu Law (2), (Butterworths, New Delhi, 2001), 277
Musyoka, W. Law of Succession, Law Publishing (T) Ltd, Dar es

Salaam-Tanzania, 2010
Rwebangira, M. K. and Mukoyogo, M. C., The law of Inheritance

in Tanzania: A status Report, WLEA Publication No. 4, Nairobi ,
Kenya, 1995
13
CHAPTER TWO
SOURCES OF LAW OF SUCCESSION
2.0 Introduction
Sources are the materials and processes where rules and principles of law can be
found. They refer to a place to obtain law. Since laws do not come from the blue
sky, they should be found somewhere. Sources are important for legal theory
and practices. There are many different sources of law in any society. Some laws
will be written in the country's Constitution, others will be passed by the
legislature, and others will come from long social tradition to mention but a few.
In this chapter, we are going to learn sources of law of succession. This is very
important because we can neither understand nor apply the law of succession
without understanding its sources. Hence we shall focus the sources of law of
succession in Tanzania and determine their applicability in law of succession.
2.1Objectives
 Acquired knowledge and understanding of the basic concepts

of sources of law of succession, customary laws, Islamic
laws, statute law and Hindu law.
 Acquainted with knowledge and understanding on
circumstances under which each law is applicable in law of
succession matters.
 Developed ability to explain the applicability of each category
14
of law and to whom such law is applicable in succession

matters.
2.2 Sources of law of succession in Tanzania
Rules of succession cannot be studied in isolation. They have to be understood

and studies in the context of the prevailing social conditions, the existing social
structure, the hierarchal structure existing, the comparative status of females as
compared to males, the reliance to religious customs and traditions that that
particular society places and most importantly the reforms which the prevailing
government intends to introduce in the wake of reforming or modifying the
existing rules and principles
The Law governing succession in Tanzania (Mainland) is diverse as are the

communities making up our society. There are four competing legal systems
with which a deceased estate may be administered especially when one dies
without leaving a Will. These systems of laws are Statute Law, Customary Law,
Religious Law and Hindu Law. The connecting factor to any of these legal
systems is ethnicity, religious affinity or race. The multiplicity of legal systems
gives rise to a problem of internal conflict of laws leading to the question of
choice of law in the distribution of a particular deceased person‟s estate.
2.2.1 Statute law
This refers to laws which are enacted by the parliament. They are source of law
of succession when they provide rules of succession. There are some laws which
15
were enacted by the legislature which provides the rules applicable in succession.
However the rules provides govern specific group of persons.
2.2.1.1 Relevant laws under statute law
The relevant law is the Indian Succession Act of 1865, which was made
applicable to Tanzania by the Indian Acts (Application) Ordinance, Cap. 2. Under
section 24, 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.
2.2.1.2 Provision of law
Where a person dies intestate such property devolves upon a wife or husband or
upon those who are of the kindred of the deceased. 18 Succession to such an
estate is effected according to the following basic rules prescribed by the Indian
Succession Act, 1865
In case the intestate left no widow, section 28 provides that the property shall
belong to his lineal descendants or to those who are of kindred to him not being
lineal descendants, if none is kindred to him it shall belong to the State. Where
the intestate has left a widow the rules for the distribution of an intestate‟s
property after deducting the widow‟s share among his lineal descendants are as
provided under sections 30 to 33.
Where he has left surviving him a child or children, but no more lineal
descendants through a deceased child, the property shall belong to his surviving
18
Section 26 of the Indian Succession Act.
16
child. If there is more than one child it shall be divided equally among all the
surviving children.19
Where the intestate has not left surviving him any child but has left a grandchild
or grandchildren, and no more remote descendants through a deceased
grandchild, the property shall belong to his surviving grandchild, if there be only
one or if more than one shall be equally divided among all his surviving
grandchildren.20
Where the intestate has not left surviving him any child or grandchild the
property shall belong to the surviving lineal descendants who are nearest in
degree to the intestate, where they are all in the degree of great-grandchildren
or are all in a more remote degree to him.21
If the intestate has left lineal descendants who do not all stand in the same
degree of kindred to him, and the persons through whom the more remote are
descended from him are dead, the property shall be divided into such a number
of equal shares as may correspond with the number of the lineal descendants of
the intestate who either stood in the nearest degree of kindred to him at his
decease, or having been of the like degree of kindred to him, died before him,
leaving lineal descendants who survived him, and
One of such shares shall be alloted to each of the lineal descendants who stood
in the nearest degree of kindred to the intestate at his decease; and one of such
shares shall be allotted in respect of each of such deceased lineal descendants;
19
Ibid section 30
20
Ibid section 31
21
Ibid section 32
17
and the share allotted in respect of each of such deceased lineal descendants
shall belong to his surving child or children or more remote lineal descendants as
the case may be; such surviving child or children or more remote lineal
descendants always taking the share which his or their parent or parents would
have been entitled to respectively, if such parent or parents had survived the
intestate.22
The above rule also applies where the intestate is survived by no children but
grandchildren and great grandchildren. The deceased‟s father, mother, brothers
and sisters, inherit only where there are no lineal descendants surviving him.
They share half of the estate where there is a widow surviving. The husband
surviving his wife has the same rights in respect of her property, if she dies
intestate, as the widow has in respect of her husband‟s property, if he dies
intestate.23
2.2.1.3 Application
The Indian Succession Act, 1865 does not apply to the estate of a deceased
Moslem. 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. The Law is more inclined towards equality of
22
Ibid section 33, also consider sections 35, 36, 37, 38, 39, 40, 41, and 42 on rules
relating to distribution of intestate property after deducting the widow’s share where
there are no lineal descendants.
23
Section 43 of the Indian Succession Act, 1865.
18
division among the heirs of the same degree. It does away with the distinction
between male and female children of the deceased. They inherit equal shares.
The Law does not make any distinction, as regards succession to movable and
immovable property provided that the said properties are situated in the
territory.
2.2.2 Customary laws
Customary Law may be defined to mean that Law which is either written
declared or unwritten but is recognized by the community as having the force of
law.24 It is applicable to African members of the Community irrespective of their
religious affiliation.
2.2.2.1 Relevant law
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.25
24
See Interpretation of laws Act, CAP 1 RE 2002
25
Volume 2 No. 2 December 1988 Tanzania Law Reform Bulletin, p. 56, 2. The Declaration
set out in the First, Second and Third schedules … the areas subject to the
jurisdiction of Chunya, Dodoma, Kasulu, Kibondo, Kigoma, Kondoa, Manyoni, Maswa,
Mbeya, Mpwapwa, Ngara, Njombe, Shinyanga, Singida, Songea, Ufipa, and Ukerewe
District Councils and to be binding upon Africans, to whom the Local Customary Law
relates. It was extended to many more areas.
19
The 2nd schedule of the Order relates to rules of inheritance. The 3rd schedule of
the Order relates to rules on wills. The Declaration only concerns with patrilineal
tribes. The rules were not mandatory as they depended on adoption by the
relevant District Councils. Most District Councils adopted the rules with very few
modifications eg GN 436, 474 and 605 of 1963. Uniform customary law process
is outlined in section 9A of the JALA.
2.2.2.2 Application
It is noted that these rules apply only to patrilineal communities which are 80%
while matrilineal communities which are 20% in Tanzania (Mainland) are
excluded. Very little is known in relation to Customary Law rules of
Inheritance/Succession with regards to the Matrilineal Communities 26 to that
extent they remain disadvantaged because the Customary Law applicable in
those communities remain to be proved in the court of law as a question of fact
whenever they are invoked.
Inheritance is in three degrees, whereas normally the first son from the first
house is the heir in the first degree, second degree heirs include all other sons
and third degree heirs are normally the daughters of the deceased.
The main condition for the application of customary laws is that they should be
in line with the constitution and other written laws of the land. When they
contradict, they will never be applicable. Under the Local Customary Law
Declaration Order, No.4 (1963) males inherit movable and immovable properties
absolutely, but females inherit immovable property only for their use during their
26
Decision by Said, J. (as he then was) in Donald s/o Musa v. Tutito s/o Yonathan, [1967]
HCD No. 118.
20
life time. They cannot sell such immovable property unless there are no male
members in the family. However, the High Court of Tanzania in the case of
BERNADO EMPHAHIM VS. HOLARIA PASTORY AND GERVAZI
KAIZIREGE (PCC)27 Mwalusanya J. declared this custom as being
discriminatory and unconstitutional. It is noted that the situation now obtained
in urban areas is different because of the existence of acquired property (leases).
2.2.3 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.28
Islamic Law is linked with the Mohamedan beliefs in that it is embodied in the
Quran Surat-l-Baqaro (S.II), Surat Nisaa (S.iv) and Surat-l-Maida (S.V) and is in
no way influenced by changes in the society. Majority of Muslims in this country
are Sunni or Shafii School of thought. Islamic Law is often equated or confused
with customary law, consequently giving rise to conflict of laws.
2.2.3.1 Relevant 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:
27
Civil Appeal No. 70 of 1989 (unreported)
28
https://www.britannica.com/topic/Shariah
21
(i) The Succession (Non-Christian Asiatic) Act / Ordinance (Cap. 112/Cap

28 RE 2002) Section 6(1).
(ii) The Probate and Administration of Estates Act Cap 352 R.E 2002)
Section 88(1) (a).
(iii) The Judicature and Application of Laws Act (Cap.358 R.E 2002) Section
9.
(iv) The Magistrates Courts Act No. 2 of 1984 section 18.
(v) The Law of Marriage Act No. 5 of 1971.
(vi) The Mohamedan Estate (Benevolent Payments) Act
(vii) The Re-statement of Islamic Law,
(viii) The Wakf Commissioners Act
2.2.3.2 Application
Section 88 of the Probate and Administration of Estates Act 29 provides the

statutory basis of Islamic law of succession in the case of specified natives. The
law provides the test for the application of the law.
If the deceased professed Islamic at any time and the court is satisfied that from
the written or oral declarations of the deceased or his acts or manner of life he
intended his estate to be administered either wholly or in part according to
30
Islamic law, Islamic law will apply.
If the estate is that of a „Swahili‟ then Islamic law applies otherwise tribal law is
applicable. However, the mere professing of Islam is not sufficient to invoke
Islamic law in the distribution of the deceased‟s estate, the deceased must have
29
Cap 352 RE 2002
30
Section 88(1) (a) of the Probate and Administration of Estates Act
22
made written or oral declarations of his intention to have his estate administered
according to Islamic law or his acts/ manner of life convinces the court that the
deceased intended Islamic law to apply.
These conditions for application of Islamic law were effectuated by Spry, J. in the
case of Hussein Mbwana vs. Amiri Chongwe,31 where he stated that: "I hold
therefore there are two systems of law which may apply in African Muslims
Community, religious law in matters peculiarly personal such as marriage, and
customary law which may apply in all spheres of life.
Sir Ralph Windham added that, it cannot be held that while the rights of an
African Moslem wife at and during her marriage are to be governed by Muslim
law, her rights of inheritance upon her husband's death are to be governed by
her tribal custom, which may give her no such rights.
The status and rights of a wife after her husband's death must be governed by
the same corpus of law as governed then before his death. Her rights of
inheritance are bound up with her right, or the comparative lack of them, during
the matrimony, and are in the nature of counter-balance or safe-guard to her
when she loses her protector. He held that law to be applied in the distribution of
the deceased's estate is a Muslim law.
2.2.4 Hindu laws
The law of inheritance under Hindu laws has close connection with the doctrine
„he, who inherits property, also offers the panda‟ i.e. it was based upon the
31
Civil Appeal No. 1 of 1963 (T) (unreported)
23
principle of consanguinity as well as on spiritual efficacy, propinquity and natural

love and affection.32
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.
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.
2.2.5 Non-Christian Asiatic law
Under section 6(1) succession to the movable property in Mainland Tanzania of a

deceased Non-Christian Asiatic who at the time of death is domiciled in Mainland
Tanzania and to the immovable property in Mainland Tanzania of such a Non-
Christian Asiatic whether or not domiciled in Mainland Tanzania at the death,
shall be regulated by the law of the religion professed by that Non-Christian
Asiatic at death provided that:
(a) the law of any religion that deprives any person of a right of succession
to property by reason of that person having renounced or having been
excluded from the communion of any religion or having been deprived
of caste shall not be in force in mainland Tanzania; and
32
24
(b) Every creditor shall have the same rights and remedies against the
estate of a deceased Non-Christian Asiatic, including the right to follow
assets, as the creditor has against the estate of a deceased Christian.
According to section 8(1) the law of the religion of any person shall be that law
subject to any special custom recognized and adopted by persons of that religion
domiciled in Tanzania or in the case of a Hindu by members of the caste so
domiciled.
A court may ascertain the law of any religion or custom by any means which it
thinks fit,33 and may act on information which appears to the court to be credible
though it is not legal evidence and in case of doubt or uncertainty the court may
decide as the principles of justice, equity and good conscience may dictate.
2.2.6 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. They are going to be covered almost in every part of the chapter.
33
Consider the case of Mawji Damji vs Alibhai Damji Devraji (1955)22 EACA 162 James
R.W and Fimbo G.M at 269
25
2.3 Summary
In this chapter we have learnt that rules of succession cannot be

studied in isolation. They have to be understood and studies in
the context of the prevailing social conditions, the existing social
structure, the hierarchal structure existing, the comparative
status of females as compared to males, the reliance to religious
customs and traditions that that particular society places and
most importantly the reforms which the prevailing government
intends to introduce in the wake of reforming or modifying the
existing rules and principles. We have learnt that sources of law
of succession are the materials and processes where rules of
succession can be found. The sources of law governing
succession in Tanzania are diverse as are the communities
making up our society. There are four competing legal systems
with which a deceased estate may be administered especially
when one dies without leaving a Will. These systems of laws
are Statute Law, Customary Law, Islamic Law and Hindu Law.
The connecting factor to any of these legal systems is ethnicity,
religious affinity or race. The multiplicity of legal systems gives
rise to a problem of internal conflict of laws leading to the
question of choice of law in the distribution of a particular
deceased person‟s estate. These four competing categories of
law which are applicable in succession matters are applicable in
different circumstances and different members of the
26
communities found in Tanzania.
2.4 Activities

(i) Sources of law of succession
(ii) Statute law
(iii) Customary law
(iv) Islamic law
2. Describe with authorities conditions and circumstances
for the application of customary laws in succession
matters.
3. Discuss the persons and circumstances which limit the
application of Islamic law in succession issues in
Tanzania.
4. Compare and contrast the application of customary and
Islamic laws in the inheritance matters in Tanzania.
2.5 References
Indian Succession Act of 1865
Local Customary Law (Declaration) Order (No. 4) of 1963
Volume 2 No. 2 December 1988 Tanzania Law Reform Bulletin
Probate and Administration of Estate Act, CAP 352 RE 2002
Judicature and Application of Laws Act, CAP 358 RE 2002
27
https://www.britannica.com/topic/Shariah

Rwebangira, M. K. and Mukoyogo, M. C., The law of Inheritance

in Tanzania: A status Report, WLEA Publication No. 4, Nairobi ,
Kenya, 1995
28
CHAPTER THREE
NATURE AND IMPORTANCE OF WILLS
3.0 Introduction
In the course of the past decades, an increasing amount of wealth has been
passed on death in ways other than by will or intestacy rules, that is to say
through instruments that are functionally equivalent to wills. Therefore in this
chapter, we are going to learn meaning of will, characteristics of will and
functions of will.
3.1Objectives
 Acquired basic knowledge of concepts such as wills and codicils

 Acquainted with understanding on nature and characteristics of
wills.
 Acquainted with ability to discuss the usefulness of making wills.
3.2 Meaning of Will
A will is a declaration or legal document by which a person, the testator,

expresses his or her wishes as to how his or her property is to be distributed at
29
death, and names one or more persons, the executor, to manage

the estate until its final distribution.34
This declaration states how the testator would like his or her assets to be
distributed when he or she dies, and the person or organisation he or she
would like to be responsible for carrying out his or her wishes.
Rule 2 of the Local Customary (Declaration) Order 35 defines will as an

attestation made freely by a person in his lifetime showing his intention as to
how he would like his property to be distributed after his death. A will can take
two forms, an oral will and a written will.
According to Sir JP Wilde in Lemage v. Good ban36 will of a man is the

aggregate of his testamentary dispositions, so far as they are manifested in
writing, duly executed according to the statute.
3.3Codicil
Codicil is an instrument made in relation to a Will, explaining, altering or adding

to its dispositions and is deemed to be a part of the Will. The purpose of codicil
is to make some small changes in the Will, which has already been executed.37
If the testator wants to change the names of the executors by adding some
other names, or wants to change certain bequests by adding to the names of the
34
Paruck The Indian Succession Act, ed. S S Subramani & K Kannan(9th edition,
Butterworths, New Delhi, 2002)
35
No. 4 of 1963
36
(1865) 1 LR 1 P and D 57
37
Sanjiva Row’s, The Indian Succession Act, 1925, ed. Prafulla Pant (seventh edition,
Butterworths, New Delhi, 2000)
30
legatees or subtracting some of them, a Codicil in addition to the Will can be

made to do so.
The codicil must be reduced to writing and has to be signed by the testator and
attested by two witnesses. It is also the duty of the court to arrive at the
intention of the testator by reading the Will and all the codicils.
3.4 Characteristics of will
A will being testamentary disposition document has no legal effect until the
testator dies. It is successive in effect. The essential features of will are hereby
explained:-
3.4.1 Legal declaration
The documents purporting to be a Will or a testament must be legal, i.e. in

conformity with the law and must be executed by a person legally competent to
make it. Further the declaration of intention must be with respect to the
testator‟s property. It is a legal document, which has a binding force upon the
family.
3.4.2 Disposition of property
In a Will, the testator bequeaths or leaves his property to the person or people
he chooses to leave his assets/belongings. A Hindu person by way of his Will can
bequeath all his property. However, a member of an undivided family cannot
bequeath his coparcenary interest in the family property
3.4.3 Expression of intention
31
The wishes expressed in a will are only intended to take place upon death of
the person who makes the will. Any document said to be will while its intentions
are to take place prior the death of the maker of such document has no status
of being called will.38
3.4.4 Ambulatory
The wills are ambulatory that is wills do not become operative until the person
dies. For example, if testator makes a valid will today, that wills have no legal
effect until testator actually dies.
Therefore, testator is free to change his or her will as many times as he/she
wants up until his/her death.39 The beneficiaries of testator‟s will have only the
hope of receiving anything. In other words, the beneficiaries are entitled to
nothing until the testator dies and the will is admitted to probate to prove the
contents of the will.
3.4.5 Proof of will
Also, the wills have to be admitted to the probate court to prove the contents of
the will. The court with probate jurisdiction has the tasks of carrying out the
intent of the testator.40
38
T. P. Gopalakrishnan’s Law of Wills, (sixth edition, the Law Book Company (P) Ltd.,
Allahbad, 1998)
39
See
http://www.organiser.org/dynamic/modules.php?name=Content&pa=show&pid=125&page=29
40
See http://www.hinduonnet.com/2001/02/26/stories/0226000k.htm
32
The court does this by making sure that all the formal requirements have been
met, reading what the will says, and then listening to other evidence if
necessary. It must be emphasized that a court will never add words to a will, but
may delete portions of the will (or the whole will). However, usually the words of
the will are carried out, as long as the words aren‟t too ambiguous.
3.4.6 Public record
Moreover, the wills are public records, as opposed to private documents. This
means that anyone can successfully challenge a will if he or she can prove that
the intent of the testator was for the challenger to be included in the will or
receive more property or assets.41
Therefore a Will does not involve any transfer, nor affect any transfer inter-vivos
from one living person to another, but it is a document in which a person
specifies the person (executor) as well as the method to be applied in the
management and distribution of his estate after his or her death.
A Will therefore come into effect only after the death of the testator and can be
revoked by the testator alone, until such a time that he is legally competent to
dispose of his property.
3.4.7 Revocability
Since will takes place after death of testator and it is expression of intention of
the testator, it can be revoked at any time during testator‟s life time. It is
revocable even though such will states that it is irrevocable. A Will can be
41
See http://www.legalserviceindia.com/articles/will_hindu.htm
33
revoked by the testator at any time during his lifetime as long as he or she is
competent enough to make a decision.
3.5Significance of wills
A person can ensure as to how his property should devolve and to whom it shall
devolve, after his death, through a Will. If a person dies without leaving behind
his Will, his property would devolve by way of law of intestate succession and
not testamentary succession.
3.5.1 Execution of testator’s intention
Hence, it is preferable that one should make a Will to ensure that one's actual
intension is followed and the property is devolved accordingly. Will is an
important testamentary instrument through which a testator can give away his
property in accordance to his wishes.
3.5.2 Disclosure of deceased property
The making of will enables the testator to make full disclosure of the all property
he or she owns or die possessed of, which are not known to the heirs and
beneficiaries and where it is not possible under intestacy to be disclosed easily.
3.5.3 Directions on distribution of property
34
By having a Will testator is able to leave instructions for the distribution of his or
her estate and testator can name someone as the executor of his or her Will to
carry out these instructions on his or her behalf.42
3.5.4 Direction on disposal of deceased body
Moreover, the Will is a document that contains testator‟s instructions and wishes
on how he or she would like his or her body to be dealt with or disposed of after
death. Will enables testator to direct on precise methods of testator‟s funeral or
provision of his body for medical or scientific research.
3.5.5 Expression of final wishes
A Will allows testator to express his or her final wishes and let his or her loved
ones know that he or she took the time to think about and provide for them after
we have gone.
3.5.6 Preservation of assets after death
During our lives testator focuses on how to gather and manage his or her assets
so that he or she can have enough wealth during his lifetime.
However, testator also needs to focus on preserving those assets on death and
ensuring that the wealth is transferred to the next generation. A properly
planned Will is a critical and integral component of testator‟s estate plan.
42
See https://www.daveramsey.com/blog/the-importance-of-having-a-will/
35
Also, the Will allows testator to determine where or to whom his or her assets
are to be distributed upon his or her death, and in so doing, preserves and
protects the assets that testator has spent a lifetime accumulating.43
3.5.7 Avoidance of conflict over assets
The division of an estate after death comes with many emotions. The slightest
differences can result in hurt feeling and recriminations. As divorce becomes
more complex and blended families more common, dividing assets has become
even more complicated.
A will that clearly lays out testator‟s wishes may reduce conflict and speculation
over what testator “would have” wanted.
For example, if testator is in a second marriage and have children from his first
marriage he may want to use a will to clearly distribute his property between his
second spouse and children.
3.5.8 Avoidance of rules of intestacy
Without a will or other plan, testator‟s property would be divided between them
according to state law this could produce an uncomfortable result as well as
speculation about what testator would have wanted.
Making a plan can give testator peace of mind and prevent his or her family from
fighting over possessions.
43
See http://www.nicholsons.com.au/think-nicholsons-blog/the-importance-of-wills-
powers-of-attorney
36
When a person dies without a will or other estate plan, state laws known as
„intestate succession laws‟ decide which family members will inherit testator‟s
estate and in what proportion.
In most states, testator‟s spouse, children, or parents take priority under

intestate succession. Most people want to distribute their property differently
than the state would distribute it.
3.5.9 Other people benefits
If testator wants other people or organizations to inherit some of his or her

property, or if testator wants to decide the proportions of his or her gifts, a will
can make sure his or her wishes are followed.44
For example, many people want to leave gifts to friends, neighbors, girlfriends,
boyfriends, schools, or charitable organizations and intestate succession does not
allow for any of that.
3.5.10 Appointment of executors
A will also allow testator to avoid having a court-appointed administrator and the
associated costs. Having a will ensures that state law will not dictate the
distribution of testator‟s assets, the custody of testator‟s children, or the care of
those under his or her responsibility with special needs.
3.5.11 Appointment of guardians
44
See https://europa.gi/index.php/corporate/30-learning-centre/93-the-importance-of-
wills
37
Writing a Will is especially important if there are children as it gives testator the
opportunity to appoint guardians. A number of events can affect who is able to
bring a claim against an estate. A Will can also provide directions on legal
guardianship for testator‟s children.
3.5.12 Tax Planning
Changes in financial circumstances, marriage, cohabiting with a new partner are

reasons to make and amend a Will. Consideration should also be given about
making lifetime gifts. It also allows testator to achieve tax planning objectives
and to consider protecting his or her assets from future care fees.
3.6 Summary
In above chapter we have learnt that wills are legal declaration of the
testator‟s intention for the purpose of disposition of his property after
his death, it‟s thus important to note that the documents purporting
to be a will must be legal, mere use of the word „will‟ on a document
does not amount to such testamentary disposition of the property. It
is noted Will does not involve any transfer, nor affect any transfer
inter-vivos from one living person to another, but it is a document in
which a person specifies the executor as well as the method to be
applied in the management and distribution of his estate after his or
her death. The Will is a vital legal document that allows testator to
make clear what he or she wants to happen to his or her estate once
he or she is gone. By having a Will testator is able to leave
38
instructions for the distribution of his or her estate and testator can
name someone as the executor of his or her Will to carry out these
instructions on his or her behalf. Therefore The division of an estate
after death comes with many emotions. The slightest differences can
result in hurt feeling and recriminations. As divorce becomes more
complex and blended families more common, dividing assets has
become even more complicated. A will that clearly lays out testator‟s
wishes may reduce conflict and speculation over what testator would
have wanted.
3.7 Activities

(i) Wills
(ii) Codicils
2. Describe the nature and characteristics of wills.
3. “The wills are very important in the society for social and legal
aspects.” Discuss
3.8 References
Black‟s Law Dictionary, 5th Edition
Garner B. A. (ed.), Black Law Dictionary, (West Group. St. Minn, 7th
edition), 787
Paruck The Indian Succession Act, ed. S S Subramani & K Kannan(9th
39
edition, Butterworths, New Delhi, 2002)
T. P. Gopalakrishnan‟s Law of Wills, (sixth edition, the Law Book

Company (P) Ltd., Allahbad, (1998)
Sanjiva Row‟s, The Indian Succession Act, 1925, ed. Prafulla Pant
Seventh edition, Butterworths, New Delhi, (2000)
http://www.organiser.org/dynamic/modules.php?name=Content&pa=sh
ow&pid=125&page=29
https://europa.gi/index.php/corporate/30-learning-centre/93-the-
importance-of-wills

Rwebangira, M. K. and Mukoyogo, M. C., The law of Inheritance in

Tanzania: A status Report, WLEA Publication No. 4, Nairobi , Kenya,
1995
40
CHAPTER FOUR
CLASSIFICATION OF WILLS
4.0Introduction
A Will or testament is a legal declaration by which a person, the testator, names

one or more persons to manage his or her estate and provides for the transfer of
his or her property at the time of death. A Will is a statement made by a
testator in the written form stating the manner in which his estate must be
distributed after his death. A Will being a testamentary document comes into
effect after the death of the testator and if the person dies without writing any
Will then he is said to be have died intestate. The person in whose favour the
testator bestows the benefits called beneficiary or legatee. A Will is otherwise
called as Testament.
Therefore in this chapter we are going to learn classification of wills. Under

chapter you will be equipped with knowledge on various types of wills as well as
nature and characteristics of each type as well as their effect in law of succession
and trust.
4.1 Objectives
 Acquired basic knowledge of concepts mutual will, joint will,

conditional will, privileged will etc.
 Acquainted with knowledge and understanding on the classes of
41
wills under testate succession.

 Acquainted with ability to describe the nature and characteristics
of each class of will.
 Developed ability to compare and contrast classes of will and their
effects in testate succession.
4.2 Classification of wills
Wills as testamentary disposition have been classified into various groups. This
categorization has been done according to the nature and circumstances under
which those wills are made. They are hereby described below:-
4.2.1 Privileged Wills
As it can be understood from the word privilege provided to certain persons. A

privileged Will is one which is made by any soldier, airman, navy persons,
mariner who are willing to dispose of their estate during their course of
employment.
A soldier includes officers and all other rank officers of service but does not
include a civilian engineer employed by the army, having no military status. In
the Goods of Hale45 the court held that typist working with the marines on a
ship was entitled to make a privileged will.
A soldier while making an instrument of Will must have attained the age of
majority and where a will made by the soldier is in the oral form; will be valid
only for a month though a written will always remain operative.
45
(1950) 2 Irish Reports 362
42
A privileged Will may be revoked by the testator by an unprivileged Will or

codicil, or buy any act expressing an intention to revoke it and accompanied by
such formalities as would be sufficient to give validity to a privileged Will, or by
the burning, tearing or otherwise destroying the same by the testator.
The privileged wills have the following characteristics so as they can be

differentiated from unprivileged wills:-
i. A Will written wholly by hand of the testator need not be signed and/or
attested.
ii. If written wholly or in part by any person other than the testator it must
be signed by the testator but need not attested.
iii. In case the Will has been written by any other person and it has not been
signed by the testator, it has to be proved that the Will was written on the
testator‟s direction or was recognised by him as his Will.
iv. An incomplete Will can nevertheless be deemed to be valid if some cause
other than the abandonment of the testamentary intentions expressed in
the instrument.
v. If the testator has given instructions for preparing a Will but has died
before the Will could be prepared and executed, then such instructions are
to be considered to constitute his Will, although they may not have been
put into writing in his presence, nor read over to him.
vi. Where a Will is made by the testator by word of mouth, declaring his
intention before two witnesses present at the same time, such a Will shall
become null and void at the expiration of one month after the testator,
being still alive, has ceased to be entitled to make a Privileged Will.
43
In Gattward vs. Knee46 the deceased, a battalion soldier, after receiving

instructions to go to war, wrote an undated letter which was received by the
plaintiff in England. The writer died in the war.
The letter contained expressions such as: „if you have a letter to say that I am
killed, then the lot is for you‟ and „you will receive the lot if I am killed in action,
for I shall make out my will in your favour‟.
No other document in the nature of a will was ever received or discovered and
the father of the deceased took out a grant of letters of administration since the
deceased was single.
The plaintiff propounded the letter as a will and applied for the revocation of the
grant of letters of administration made to deceased‟s father on the grounds that
the deceased had not died intestate.
It was held that letter constituted a testamentary document capable of taking

effect as a soldier‟s will within the meaning of the Will‟s Act. The letter was a
privileged will and therefore admissible to probate.
4.2.2 Unprivileged Wills
An unprivileged Will is one which is created by every testator not being a soldier,
airman, mariner so employed.
An unprivileged Will like Codicil can be revoked by the testator only by another
Will or by some writing declaring an intention to revoke the same and to be
46
(1920) P 99
44
executed in the manner in which an unprivileged Will can be executed under the
law or by burning, tearing or destroying of the same by the testator or by some
other person in his presence and by his directions with the intention of revoking
the same.
4.2.3 Oral Will
An oral will is one that is communicated orally to witnesses, usually on the

person's deathbed. An oral will is usually made in haste, which opens up the
possibility for errors.
Oral will is declared by words of mouth of the testator before sufficient witnesses
during imminent time before his or her death. In the case of an oral will, it must
be made in the presence of competent witnesses.
According to rule 11 of Local Customary Declaration Order 47, oral Will must be
witnessed by not less than four persons. The rule provides that two witnesses
must be from the clan of testator and other two must come from other not
related persons.
If the witnesses die before the testator, the will made under their witness shall
have no effect. Hence the person who made the will shall be deemed to have
died intestate and rules of intestacy shall apply.48
47
Order No. 4 of 1963
48
Rule 14, ibid
45
The testator has to make a new will if he or she wants to do so. 49 However if the
surviving witnesses are not less than two, such will has effect in testate
succession.50
4.2.4 Mutual Will
A Will is mutual when two testators confer upon each other reciprocal benefits
constituting the other his legatee. In the event the legatees are distinct from the
testators, the Will is not mutual.51
A Mutual Will is a Will involving a contract to make a Will. The contract is often
one that the testator will make and maintain a Will in particular form, on the
condition of another testator making a Will in another particular form. By doing
so a constructive trust is created.
It is also noted by Carnwath J. in Re Goodchild52 that a mutual will is a

technical legal device requiring an intention to form a binding agreement and
that this often differs from the "loose moral obligation" presupposed as binding
by the layman.
In Birmingham v Renfrew53 the court held that the law will give effect to the
intention to create a mutually binding will by imposing a floating trust which
49
Rule 15, ibid
50
Rule 16, ibid
51
See http://www.investopedia.com/terms/o/oral-will.asp
52
[1997] 1 WLR 1216
53
[1937] CLR
46
becomes irrevocable after the death of the first testator and crystallizes after the
death of the survivor.
Essentially mutual wills are wills that include or are accompanied by a binding
contract between the parties which provide that:
(i) Each of them will leave their property to mutually agreed beneficiaries.
(ii) Neither party will revoke or make any change to their will without the
consent of the other during their joint lifetimes.
(iii) Upon the death of one party, the survivor will not revoke their will or
alter it so as to change the mutually agreed beneficiaries.
Two persons make the wills for reciprocal benefits. It becomes irrevocable after
deaths of any one of them or if the surviving Testator takes benefit of the will. In
mutual Wills the testators confer benefit on each other but if the legatees and
testators are distinct, it is not a mutual Will.
Mutual Wills are also known as reciprocal Wills and its revocation is possible
during the lifetime of either testator.
But if a testator has obtained benefit then the claim against his property will lie.
Where joint Will is a single document containing the Wills of two persons, mutual
Wills are separate wills of two persons.
Mutual Wills are relatively rare but are becoming increasingly used as an Estate
Planning mechanism to achieve particular results required by Will makers.
47
Examples of their use are where there is a need to control businesses or farming
assets across generations to particular beneficiaries, or where there are second
marriage circumstances. They are sometimes also used where, in former times, a
life estate Will would have been used.
The main advantage in having Mutual Wills is that testators have a joint
agreement with the other person making the contract. This means that the other
person‟s Will cannot be revoked without their consent.
Because the assets are subject to a constructive trust, they must be held in
accordance with the agreement made at the time the mutual Wills were made.
The major disadvantage is that if testator wants to change his or her Will, the
other testator will need to agree, and sign their agreement to the change. If the
other testator does not agree to the changes, the Will cannot be changed.
Also, when one partner dies it is possible that the surviving partner may breach
the contract and change their will in a manner which was not mutually agreed.
For this reason it is important that other parties be aware of the arrangement so
that, if necessary, a court order can be obtained to impose a constructive trust
over the property which the survivor inherits.
The effect of the constructive trust would be that the survivor has a life interest
in the property which then passes to the mutually agreed beneficiaries on the
survivor‟s death.
Even if the survivor does not change their will there can still be problems if they
squander the estate or transfer it to parties other than the mutually intended
48
beneficiaries. In these circumstances it is possible that when the survivor dies

there could be nothing left to distribute.
One way around this is to create life estates however this option is not without
potential complications. Another option would be to seek an injunction from the
court preventing the survivor from engaging in conduct which was in breach of
the mutually agreed provisions.
4.2.5 Joint Will
A joint Will is where there is a single document that contains two or more Wills,
each of which has to be proved separately. These are extremely rare, and as a
general rule should not be entered into.54
A Joint Will is a testamentary instrument whereby two or more persons agree to

make a conjoint Will. It is intended to take effect after the death of both or more
of the persons who drew up the conjoint Will and is not enforceable during the
life time of either.55
A Will executed by two or more testators as a single document duly executed by

each testator disposing of his separate properties or his joint properties is a
single Will. It operates on the death of each and is in effect for two or more
Wills. On the death of each testator, the legatee would become entitled to the
properties of the testator who dies.
54
Peter Worral Lawyers, Mutual Wills, Macquarie St Habart, 2008
55
Maya Roy, types of wills, law quest, available at http://lawquestinternational.com/types-
wills
49
Disposing of either individual property or a joint property is a clear case of joint

will. It is a single document but in law, it contains two wills. If one of them dies,
it operates as the will of the deceased without awaiting the demise of the joint
maker of that will. Therefore, probate can be obtained, after the death of any
one of the will maker.
One of problem of joint will, for example, is what happens if the surviving spouse
moves on with their life and has a change of circumstance or even a remarriage.
What if a child, who was an angel during the lifetime of the deceased spouse,
suddenly abandons their family? The surviving spouse‟s right to disinherit the
child, or even lower the child‟s rights in the joint will is unclear.56
It is always ambiguous how strictly a surviving spouse is bound to the terms of

an old Joint Will. This can be a bigger problem when the couple created a joint
will while young. What if a young spouse unexpectedly dies, leaving the spouse
with a will that may bind the surviving spouse for 40, 50, or 60 years?
This is a risk easily (and cheaply) avoided by each spouse creating their own
will. Historically, Joint wills were common since they were regarded as a money-
saving and labor-saving technique, but through all these complications and the
use of computers, these concerns are now moot.
4.2.6 Contingent/Conditional Will
56
See https://skillernlaw.com/2012/01/12/why-a-joint-will-is-a-bad-idea/. Accessed 15
September 2016
50
A Will expressed to take effect in the happening or not happening of some event
is called a Contingent Will. A Conditional Will is based on certain conditions and if
these conditions become contrary to law, then the Will is not legally
enforceable.
It takes effect only when the given contingent happens. For example, when will
maker states - "If I do not come back" - then such a Will is Contingent Will'
because there is a contingency Will Maker may come back or may not come
back. But when Will Maker states - "if you marry my daughter" then such a Will
is 'Conditional Will' because "marriage' is not the contingency but a condition to
be fulfilled by.
4.2.7 Sham Wills
Since the intention of the testator is regarded as one of the essential condition of
a valid Will, if a document is deliberately executed with all due formalities
purporting to be a Will, but if it can be shown that the instrument was executed
for some collateral object without any intention of the testator to make it
operative, the Will is regarded as a sham Will. It is considered as invalid in the
eye of law.
4.3 Summary
In above chapter we have learnt that a Will being a testamentary

document comes into effect after the death of the testator and if the
person dies without writing any Will then he is said to be have died
intestate. The person in whose favour the testator bestows the
benefits called beneficiary or legatee. A Will is otherwise called as
51
Testament. Wills as testamentary disposition have been classified into

various groups. This categorization has been done according to the
nature and circumstances under which those wills are made. A
privileged Will is one which is made by any soldier, airman, navy
persons, mariner who are willing to dispose of their estate during
their course of employment. An unprivileged Will is one which is
created by every testator not being a soldier, airman, mariner so
employed. An oral will is one that is communicated orally to
witnesses, usually on the person's deathbed. An oral will is usually
made in haste, which opens up the possibility for errors. A Mutual Will
is a Will involving a contract to make a Will. The contract is often one
that the testator will make and maintain a Will in particular form, on
the condition of another testator making a Will in another particular
form. By doing so a constructive trust is created. A Joint Will is a
testamentary instrument whereby two or more persons agree to
make a conjoint Will. It is intended to take effect after the death of
both or more of the persons who drew up the conjoint Will and is not
enforceable during the life time of either. A Will expressed to take
effect in the happening or not happening of some event is called a
Contingent Will. A Conditional Will is based on certain conditions and
if these conditions become contrary to law, then the Will is not
legally enforceable.
52
4.4 Activities

(i) Joint wills
(ii) Mutual Will
(iii) Privileged will
(iv) Conditional will
2. Describe the advantages and disadvantages of the following:-
(i) Mutual wills
(ii) Joint wills
3. Discuss the characteristics of privileged wills.
4. Compare and contrast the following wills.
(i) Joint and Reciprocal wills
(ii) Privileged and Unprivileged wills
(iii) Oral and Written wills
5. Explain the circumstances that lead to sham wills.
4.5 References
Black‟s Law Dictionary, 5th Edition
edition), 787

53

Maya Roy, types of wills, law quest, available at

http://lawquestinternational.com/types-wills


1995
54
CHAPTER FIVE
CREATION OF WILLS AND THEIR VALIDITY
5.0 Introduction
Making a Will helps to plan what is to happen in the aftermath of a death, but
nothing can adequately prepare us for the loss of a loved one. A lot of everyday
tasks require attention and important decisions may have to be made with
regard to the deceased‟s property and personal belongings for instance, should
the house be sold.
Therefore under this lecture, we are going to acquaint ourselves with knowledge
and skills on how Wills are created and what determines their validity. We shall
understand the legal requirements for creation of Wills and formalities for the
creation of the Wills. Finally we shall be aware of the determination of validity of
wills.
5.1Objectives
 Acquired basic knowledge of concepts valid will, invalid will etc.

 Acquainted with knowledge and understanding on who is
competent to make will.
 Acquainted with ability to describe formalities of making wills.
 Developed ability to discuss the circumstances which can validate
or invalidate wills.
55
5.2 Testamentary capacity
Testamentary capacity will is the legal term used to describe a person's legal and
mental ability to make or alter a valid will.57 This concept has also been
called sound mind and memory or disposing mind and memory. It is essential to
the exercise of the power to make a Will competently if:-
i. that a testator shall understand the nature of the act and its effects
ii. shall understand the extent of the property of which he is disposing
iii. shall be able to comprehend and appreciate the claims to which he
ought to give effect and with a view to the latter object,
iv. That no disorder of the mind shall poison his affections, pervert his
sense of right, or prevent the exercise of his natural faculties
v. That no insane delusion shall influence his will in disposing of his
property and bring about a disposal of it which, if the mind had been
sound, would not have been made.58
The position at common law is that a will is invalid unless it is made by person
who at the material time had the capacity to do so.
It is a general rule that infants and persons of unsound mind are incapable of
writing a valid will. However a will made during ones infancy may be validated by
re-execution or by a codicil, when the testator reaches the age of majority. 59
57
Jesse Dukeminier & Stanley M. Johanson, Wills, Trusts & Estates, Sixth Edition, Aspen
Publishers, 2005
58
Banks v Goodfellow (1869-1870) LR 5 QB 549 at 565
59
Sound Mind and Memory - What Does this Phrase Mean?" from The Calhoun County,
Michigan state government website. Retrieved September 17, 2016
56
Being deaf dumb or blind does not make a person incapable of making a will if
he‟s in a sound state of mind and understanding of his actions. A person who is
ordinarily insane can also make a will during intervals in which he‟s of sound
mind (lucid intervals).
Any person making a will is otherwise assumed to be of sound mind at the time
of execution of the will and the burden of proving that the testator was not of
sound mind lies on the person who alleges it.60
It‟s also well settled that a will made by a person who is drunk or due to being
under the influence of alcohol is deprived of his mental faculty or reason and
understanding, is void and of no effect.
Mere old age does also not deprive a person of capacity to make a will unless
he‟s deprived of sound mental capacity and understanding. An alien can make a
will but he must execute it in the form prescribed by law.
A will or any part of a will the making of which has been caused by fraud or
coercion or by such importunity as takes away the free will of the testator or has
been induced by mistake is void.
In the case of Wilkinson v. Joughin (1866), a gift in a will to a married

woman who represented to the testator that she was free to marry him while
indeed her marriage with another man was still subsisting, was held to be
fraudulent and so it was omitted from probate.
60
http://www.lawskills.co.uk/articles/2015/01/capacity-make-will-true-test/
57
In the case of Hall v. Hall (1868), the plaintiff Anne Hall propounded the will of
deceased husband John Hall. The defendant William Hall who was the brother of
the deceased alleged that the will was obtained by undue influence of the
plaintiff in that she had used violence and made threats against the deceased
and that the will had been made in consequence of this for the sake of peace
and quietness and did not express the deceased real testamentary intentions.
Therefore the court refused the will on probate. It was further observed however
that to make a will, a man must be a free agent but all influence are not unlawful
e.g. persuasion in legitimate and may be fairly pressed on the testator.
5.3 Testamentary formalities
A will having been defined as a legal declaration of the testator‟s intention for the
purpose of disposition of his property after his death, it‟s thus important to note
that the documents purporting to be a will must be legal; mere use of the word
will on a document does not amount to such testamentary disposition of the
property.
In the case Re Bravda (1968), the testator made will leaving his estate to his
daughters. He executed the will in the presence of his two daughters and two
witnesses. The witnesses signed after the execution by the testator. He
explained that he wished to see that his two daughters were provided for and so
he then asked the two daughters to sign to make the will stronger.
In propounding the will it was argued that the will was not properly attested
because the beneficiaries also signed. The court held that attestation by such
beneficiaries vitiated the will on lack of proper witnesses.
58
5.3.1 Writing
A will can be written in any particular form of the written will it is presumed that
the will maybe handwritten, typed, printed or in lithographed form. The writing
may be that of the testator or of any other person. It may be in any
language. Case law shows that it may even be in a code so long as the code can
be deciphered.
In the case of Kell vs. Charmer a will written in a jeweller‟s code was admitted
to probate. It may be written on any material provided the material produces a
visible form.
In Hodson vs. Barnes a will written on an eggshell and in Murray a will written
on a cigarette packet were admitted to probate.
5.3.2 Signature
Generally the courts have widely interpreted it to cover any mark of the testator
which is intended as a signature e.g. thumb print, initials, assumed name, mark
by a rubber stamp with the testator‟s name have all been held to amount to valid
signatures. It need not even consist of a name at all.
In Re Cook’s Estate (1960) the words “your loving mother” placed at the end
of the document were held to be a valid signature. Part of a signature may in
some cases be sufficient to validate a signature.
In Re Chalcraft’s Goods (1948) A testatrix, on a point of death, started to

sign her normal signature “E. Chalcraft” but after writing “E. Chal”, she became
too weak to continue. It was held that the signature was valid where the will is
59
signed by another person this should be done in the testator‟s presence and
under his direction.
The concept of “presence” has a physical and mental dimension. Since the
signature has to be made under the testator‟s direction, the testator‟s physical
and mental condition must be such that he could either object to or assent to the
signature made on his behalf. A Will will normally be signed on behalf of a
testator in circumstances where he is too weak through illness to sign for him.
The person who signs on behalf of the testator may sign his or her own name or
in the testator‟s name and the person may be one of the witnesses to the will. It
would be more prudent for the person signing on behalf of the testator to sign
his own name and to state that he is signing on behalf of the testator, in the
testator‟s presence and under his direction. This would obviate any uncertainty
as to whether the person is signing for the testator or as an attesting witness.
In Weatherall vs. Pearce a testator made a will on a printed form purchased

from the stationers. She signed her name in the middle of the attestation
clause, but not at the end of the will.
The issue was whether this constituted a signature for the purpose of S 17 of the
U.K Act. It was held that since she had intended her name as signed to be her
signature the will was properly signed.
In Wood vs. Smith a testator wrote in his own handwriting at the top of his will
and before writing the rest of the will “My will by Percy Winter borne”. He did
not sign his name at the foot of the document. Evidence was adduced that the
testator regarded his name at the top to be his signature.
60
It was held that by writing his name and the dispositive provisions in one single
operation the deceased had provided clear evidence that he intended to give
effect to the provisions. The will was held to have been duly executed.
Sometimes a testator may place his signature on a separate piece of paper or on

an envelope containing the otherwise unsigned will. In such situations, whether
the will is validly signed or not will depend on the intention of the testator.
If the intention is to ratify the will, it should be valid. If the intention is to

identify the will the same would be invalid. The intention of the testator is a
question of fact to be gauged from the evidence adduced.
In the Estate of Bean (1944) P. 83 a testator forgot to sign his will but wrote
his name and address on the envelope. It was held that the will was not
valid. He had written his name on the envelope to identify rather than ratify the
will. Probate of the will was refused.
In Re Mann’s Goods (1942) P. 146 a testatrix forgot to sign her will, but put
it in an envelope and wrote on the envelope, “Last will and testament of J. C.
Mann”, signed the envelope and had it witnessed. The envelope was then
placed in a larger envelope. It was held that the testatrix intended the signature
to give effect to the will, which was therefore admissible to probate.
5.3.3 Witnesses
The law requires that there should be a number of witnesses when the will is
made.Though there are no formal qualifications for a witness, it is important that
a witness not have a financial interest in the will.
61
If a witness has an interest, his testimony about the circumstances will be suspec
t because he will profit by its admission to probate.
In most states such witnesses must either "purge" their interest under the will (f
orfeit their rights under the will) orbe barred from testifying, thereby defeating th
e testator's testamentary plan.
If, however, the witness also would inheritunder the laws of descent and distribu
tion should the will be invalidated, he will forfeit only the interest in excess of the
amount he would receive if the will were voided.
The testator‟s signature must be made in the presence of two witnesses who
need not be present at the same time. In the Matter of the Estate of James
Ngengi Muigai (1996) Koome J stated that the law allows the will to be
witnessed by two or more witnesses at different times, but each should sign in
the presence of the testator.
The provision is unhelpfully drafted. It requires that the will be attested by two
or more witnesses each of whom must have seen the testator sign or affix his
mark to the will, and at the same time say that it shall not be necessary that
more than one witness be present at the same time.
It is not conceivable how the witnesses can each see the testator sign the will if
both are not present at the same time, unless the will is signed twice by the
testator.
A will signed by one witness, as was the case in In the Matter of the Estate
of Susan Kanini Kilonzo (deceased) Nairobi HCSC No. 2669 of 2002), would
be in contravention of s 11(c) and therefore null and void. To be present at
62
signing means the witnesses must be capable of seeing the testator sign. The
witnessing is of the signature i.e. the fact of signing. The witnesses need not
look at the signature or even know that the document is a will.
If the witness is present but unaware of what the testator is doing, the
attestation will be invalid.
In Brown vs. Skirrow (1902) P 3 a testatrix took her will to a grocer‟s to be

executed. She asked two shop assistants to act as witnesses. As she was signing
the document, one of the assistants was busy serving a customer. The will was
held invalid.
In Re Colling (1972) 1 WLR 1440 it was stated obiter that if a witness left
the room before the testator completed his signature, the attestation will also be
invalid.
5.3.4 Attestation
In the Estate of Bravda (1968) 1 WLR 479 testator made a will leaving his
estate to his two daughters. He signed the will in the presence of the two
daughters and two other witnesses. He explained the reason of making the will
as being that he wished to see his daughters provided for.
After the two witnesses had signed the will after the testator, the testator out of
sheer enthusiasm asked the daughters to also sign, “to make it stronger”. They
signed.
63
It was held that since the daughters put their signatures under the words
“witnessed by” they had signed as witnesses. It was held that the will was
invalid.
GEORGE A MMARI AND ANANDE A MMARI 61 where the appellants

challenged the validity of a Will drawn by their deceased father while hospitalized
bequeathing a house to their stepmother. The will was attested by the said
stepmother, i.e. wife of testator, and the doctor who was attending the
deceased. The court held inter alia that for a will drawn up by a literate person
to be valid it must be attested, besides the wife (wives), by at least two persons
of whom one must be a relative of the deceased
Also in the case of THOMAS MATONDANE v DIDAS MAWAKALILE & 3

OTHERS62 the court held that the will under which the appellant claimed ought
to have been witnessed by two clan members and two non-clan members as
required by the Rules on Wills since the deceased was illiterate. The will was
therefore null and void.
5.3.5 Presumption of due execution
According to Githinji J in Karanja and another vs. Karanja (2002) 2 KLR 22

where a will is regular on the face of it with an attesting clause and the signature
of the testator there is a rebuttable presumption of due execution (omnia esse
riteatta).
61
1995 TLR 146 (HC)
62
1989 TLR 210 (HC)
64
The court was convinced that the deceased made the wills and codicils and duly
executed them in accordance with the provisions of S 11 of the LSA; and there
were no circumstances which disturbed the conscience of the court about the
same.
5.4 Validity of Will
Validity of will can be determined by various pre-requisites. Missing of either pre-

requisite renders the will made invalid in the eyes of the law. Hence the testator
who made such will declared to be invalid is deemed to have died intestate and
the rules of intestacy shall apply in the distribution of estate.
5.4.1 Animus testandi “intention to make will”
The will to be valid in the eyes of the law must have been made as per the
intention of the testator. The testator must have voluntarily intended to make
such a will. Hence any vitiating factor to the animus testandi of the testator
renders such will invalid because the testator did not intend with his or her own
free will.
It was also cemented in the case of Nicho v. Nicho (1814) whereby the
testator from wine and dine drafted will and later attested. The court declared
the will invalid because it was never intended.
5.4.2 Testamentary capacity
Also, the law of succession requires the will to have been made by a competent
person so as to undertake transmission of his or her property to another person
65
upon his or her death. Testamentary capacity is determined through age of

majority, sound mind, sound memory and sound understanding.
Therefore short of that testamentary capacity, the will made is invalid hence
cannot dispose the property of testator upon his death. However mere
forgetfulness to comprehend the property does not justify the invalidity of will.63
In Banks v. Goodfellow64, the court opined that the mere fact that the testator
was eccentric or was subject to one or more delusions is not sufficient to
invalidate a will. What has to be shown is that delusions had or was calculated to
have an influence on testamentary dispositions.
5.4.3 Genuineness of will
The will must be genuine so as to suffice testamentary disposition. When will is

tainted with fraud, forgery and other factors that affect its genuineness, such will
becomes void hence it cannot carries on testamentary dispositions.
In the case of JOHN NGOMOI v MOHAMED ALLY BOFU 65 where the

respondent petitioned the Primary Court for letters of administration in respect of
the estate of the deceased Hadija Manzi. The deceased left a house situated
along Uhuru G Street, Dar es Salaam. While the respondent's petition was
pending, appellant filed objection claiming that the said house was given to him
by the deceased in her will executed before her death in the presence of
63
see Boughton v. Knight (1873) LR 3 P and D 64
64
1870 LR 5 QB 549 at 569
65
1988 TLR 63 (HC)
66
witnesses who testified before the court in his favour. The genuineness of the
will was disputed, hence dismissed in both lower courts.
The court held that the requirement that at least half of the number of witnesses
to a will executed under customary law must be related to the testator is
intended to act as a safeguard against fraud and where a will is surrounded by
fraud, it is void.
5.4.4 Testamentary formalities
Also, the law requires some essential formal requirements required by the law
during creation and execution of will. Failure to do so, it can render the will to be
invalid.
Also in the case of ABDUL SADIKI v WILFRED RUTAKUNIKWA66 where

Upon death of one Miria Nsheke, the respondent presented to the administrator
of her estate a will purportedly executed by the deceased, who was illiterate,
witnessed by two clan members and two non-clan members. Later, the
appellant too came up with yet another will purportedly executed by the
deceased and witnessed by two clan members and one non-clan member.
The court held that Rules 19 and 21 of the Local Customary Law (Declaration)
(No. 4) Order of D 1963 clearly provide that if a testator is illiterate, a will
executed by him must be attested by a minimum of two clan members and two
non-clan members. As the testator in this instance was illiterate, the will
presented by the appellant was not properly attested.
66
1988 TLR 167 (HC)
67
5.5 Summary
In above chapter we have learnt that creation of will helps to plan

what is to happen in the aftermath of a death, but nothing can
adequately prepare us for the loss of a loved one. It is essential to the
exercise of the power to make a Will that a testator shall understand
the nature of the act and its effects; shall understand the extent of the
property of which he is disposing; shall be able to comprehend and
appreciate the claims to which he ought to give effect; and with a
view to the latter object, that no disorder of the mind shall poison his
affections, pervert his sense of right, or prevent the exercise of his
natural faculties that no insane delusion shall influence his will in
disposing of his property and bring about a disposal of it which, if the
mind had been sound, would not have been made. A will having been
defined as a legal declaration of the testator‟s intention for the
purpose of disposition of his property after his death, it‟s thus
important to note that the documents purporting to be a will must be
legal; mere use of the word will on a document does not amount to
such testamentary disposition of the property. To suffice so, there are
formal requirements which must be adhered during creation of will
such as writing, attestation, signature and witness. Validity of will can
be determined by various pre-requisites such as testamentary
intention, testamentary genuineness, and testamentary formalities.
Missing of either pre-requisite renders the will made invalid in the eyes
of the law. Hence the testator who made such will declared to be
68
invalid is deemed to have died intestate and the rules of intestacy shall
apply in the distribution of estate
5.6 Activities

(i) Valid will
(ii) Invalid will
(iii) Testamentary capacity
(iv) Animus testandi
2. Describe with authorities the pre-requisites which determine the
validity of will.
3. Discuss the testamentary formalities during the creation of will.
4. Explain the circumstances that determine the testamentary capacity
of the testator.
5.7 References
Paruck The Indian Succession Act, ed. S S Subramani & K

Kannan(9th edition, Butterworths, New Delhi, 2002)

69
Maya Roy, types of wills, law quest, available at

http://lawquestinternational.com/types-wills


1995
70
CHAPTER SIX
REVOCATION AND ALTERATION OF WILL
6.0 Introduction
No will nor any part thereof shall be revoked unless by tearing, burning,
cancelling or obliterating the same with the intention of revoking it by the
testator or by someone in his presence or by his direction or by some other will
signed, attested and subscribed in the manner provided in this chapter for the
execution of a will, excepting only that nothing contained in this section shall
prevent the revocation implied by law from the subsequent changes in the
conditions or circumstances of the testator.
Since the power to make a will implies the power to revoke the same, in this
chapter we shall be dealing with the power to revoke the wills made as well as
alteration of the wills. This shall give use knowledge on the reasons and ways for
which revocation of wills can be justified legalistically.
6.1Objectives
 Acquired basic knowledge of concepts revocation, express

revocation, implied revocation
 Acquainted with knowledge and understanding on the classes of
revocation of wills.
 Acquainted with ability to describe the circumstances which make
71
the implied revocation of wills to occur

 Developed ability to explore the means through which the
revocation of wills can be done.
6.2 Revocation
Revocation means to cancel a will. There are a variety of ways to do this. A will
can be cancelled by expressly doing so or it can even be possible to cancel a will
by implication. A testator has the right to revoke a validly executed will at any
time.67
There can be no revocation of a will on the basis that the testator must be
presumed to have an intention to revoke the will in the light of the altered
circumstances.68
6.2.1 Implied Revocation
An implied revocation can occur when a person already has a will but then later
writes a new one which is inconsistent with the earlier one. In this situation the
more recent will can replace the older one by implication.69
This normally occurs when the writer of the more recent will does not give any
guidance about what he desires to be done with the previous one.
67
See http://www.kottgunn.com.au/updates/how_revoke_your_will/
68
See West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group,
Inc.
69
See http://www.inbrief.co.uk/estate-law/revocation-of-a-will/
72
Implied revocation or revocation by inconsistency of a will occurs when

the testator has a will, and then executes a new will that has no clause revoking
the former will, and the new will is inconsistent with the former will. The
inconsistency between the wills impliedly revokes the former will.70
6.2.2 Express or Deliberate revocation
An express revocation is made by a direct and formal and public declaration, or

by an informal writing, or by parole.
Any writing declaring an intention to revoke a will is sufficient, provided that the
declaration is executed in accordance with the same formalities required for the
making of a will.
Deliberate revocation requires a voluntary act by a testator which is done with a

specific intention to revoke the will. Unless the testator has this specific intention
to revoke the will, then even the physical destruction of a will does not revoke
that will.71
Rather than totally rewrite the will, the testator may just decide to make a few
changes, via a codicil. This codicil may expressly or impliedly (via inconsistent
provisions) revoke the earlier will.
70
Tomas A. Byrne, Implied Revocation of Wills in Wisconsin, 12 Marq. L. Rev. 293 (1928)
71
See
http://nationalparalegal.edu/willsTrustsEstates_Public/ConstructionofWills/Revocation.as
p
73
In addition to just making a few changes, the codicil can serve to republish a
previously valid will. As such, this can operate to eliminate the rights of a spouse
who married the testator after the will‟s execution
It is advisable when writing a will to expressly say that the will replaces all
former ones and that the new will is the most recent and effective one. This
could lead to the avoidance of any confusion if another will was later discovered
which was earlier considered to be destroyed.
6.3 Circumstances which can revoke a will
Usually a person has to take action to revoke his/her own Will. For example, this
might be done by making a new Will or tearing the existing Will into pieces.
A circumstance that is often overlooked is the revocation of a Will by the normal

operation of law due to a subsequent marriage (a marriage that occurred after
the Will was made).
6.3.1 Marriage
If a testator marries after making a will, and the spouse of that marriage
survives the testator, the will is revoked as to such spouse, unless provision has
been made for such spouse by marriage contract, or unless such spouse is
provided for in the will, or in such way mentioned therein as to show an intention
not to make such provision; and no other evidence to rebut the presumption of
revocation can be received.
74
A marriage subsequent to the execution of a Will automatically revokes the Will

unless it is proved that the Will was drafted in contemplation of that marriage. 72
For example, a clause is inserted in the Will stating that the subsequent marriage
with a named person shall not revoke the Will.
It is important to be aware of the fact that if you have previously written a will
and then later get married then the entire will written before the marriage will be
considered to be invalid. Only in exceptional circumstance of a person expressly
making a will in the exception of marriage would a will still be valid.
In re Poisl's Estate73 wherein the court held that the purpose of the similar
California statute was to secure a specific moral influence on the testamentary
act of having in mind a contingent event as momentous as marriage.
6.3.2 Divorce
On the other hand, it should be noted that a divorce subsequent to the making
of a Will does not automatically revoke that Will.74 However, if there are any
specific terms in that Will which allow the former spouse to take some assets
from the deceased's estate, these terms may be void unless a contrary intention
is proved.
If a gift is made by the maker of will to his or her spouse and then the couple
subsequently divorce this will mean that the gift to the former spouse will be
treated as invalid.
72
See http://www.clic.org.hk/en/topics/probate/preliminary_issues/q2.shtml
73
(1955), 44 C.2d 147, 280 P.2d 789,
74
See https://www.law.cornell.edu/wex/implied_revocation_of_wills
75
The gift cannot be passed to the former spouse when the maker of the will dies.
It is important to note that this does not affect the whole will but just the gift to
the former spouse. The spouse is effectively treated as having predeceased the
will.
6.3.3 Destruction
If a person wants to destroy his will and make another then he must show an
intention to entirely revoke the will. If you have a desire to cancel your will then
it is advisable to completely destroy it.75
For example burning it or tearing it up could be reliable methods. If a part of the

will were to be found later then this could imply that the destruction of the will
was unintentional and as a result the contents of it could still remain to be valid.
In Re Krushel Estate76 , torn bits were found in a bag of garbage after the
deceased shot himself. The court held that the throwing away of a mutilated will
did not amount to revocation because it was not proven that the mutilation was
done at the request of the deceased.
In Re Theriault estate77, where a will stored at the lawyer‟s office was

destroyed by an accidental fire. Subsequently the testator gave some indication
of treating the fire as a revocation after the fact. The court however refused to
find a revocation by destruction because there was no evidence of intention to
revoke the will at the relevant time, i.e. before the destruction.
75
Brown, Gordon W. 2003. Administration of Wills, Trusts, and Estates,3d ed.Clifton Park,
N.Y.: Thomson/Delmar Learning.
76
(1990) 40 E.T.R. 129
77
(1997) N.S.J.No.36
76
6.3.4 Alteration of part of the will
While the reasons for changing a will may vary, it is important to know how to
reflect your current intentions in your will.
It can be possible to cancel a part of a will without resulting in the whole will
being entirely made invalid. This can be achieved by making sure that the
proposed change is signed or initialed by the maker of the will while in the
presence of two witnesses.
If there is a change in a will which is not signed then it will be presumed that the
alteration was made after the will was executed or officially made valid. This will
mean that the original wording will remain as it was previously written. This is of
course dependent on the fact that the wording is still apparent.
A number of problems can arise if the original wording can no longer be seen
and has been crossed out without being substituted for anything else. This is
why it is essential to carry out the necessary precautions and make sure that the
change is initialed and witnessed.
In some cases, a testator may purport to alter a will by crossing out and writing
in some new provisions. Such attempted changes are generally not enforceable
because the court will likely find this to be an attempted alteration rather than a
properly executed revocation.
One twist on these facts arises where a testator succeeds in obliterating words
so they become completely indecipherable. In this case, the court
77
will not reinstate the deleted words but instead will grant probate to the will with
a blank space left for the obliterated words.78
A complete obliteration can be an effective revocation even in the absence of

evidence that the obliteration was effected by, or on behalf of, the testator and
in his or her presence. In such a case there will be a presumption that the
obliteration was made by the testator personally.
If the original words are still apparent, for example by holding the will up to the
light, then any alteration will not be effective unless it is properly executed. In
the case of Finch v. Combe79 the obliterated portion became legible once held
up to window and the court thus held that there was no revocation.
The court will not excise or erase scratches or blots that obliterate part of the will
nor will they remove paper pasted over part of the will. Nevertheless the court
may allow the assistance of experts to decipher the words.
6.4 Summary
In above chapter we have learnt that Wills can be revoked at any

time by the testator or by someone in the testator‟s presence and
under his direction until his death. As a practical matter, a will can
be revoked by act, by destroying it. However, if a will is still
readable, all states treat the will as being revoked if it was the
intention of the testator to destroy the document. Most jurisdictions
will also treat the will as being destroyed if the signature to the will is
78
See Re Hebert (1927) 3 W.W.R. 24.
79
(1894) P.191 at 198
78
destroyed, such as erasing it or drawing a line through it. A will can

also be revoked by writing another will. A new will can revoke the
prior will either expressly or by inconsistency. If the revocation is not
expressed, but the new will disposes of the entire testator's property,
then it is presumed that the new will replaces the old will. If the new
will disposes of only part of the testator's property, then it is treated
as a codicil, which is a document to revise a will. The revocation of a
will may be implied from certain changes in the testator's
circumstances from which the law infers or presumes that he
intended a change either total or partial in the disposition of his
property. Such implied revocation may take place from a material
alteration in the testator's property or from a change in his family or
in the beneficiaries of his will. The doctrine that revocation of a will
may be implied from certain changes in the condition and
circumstances of the testator is of very ancient origin and is based
upon the theory that by reason of such changes new moral duties
and obligations have accrued to the testator subsequent to the date
of the will. If there is a change in a will which is not signed then it will
be presumed that the alteration was made after the will was executed
or officially made valid.
79
6.5 Activities

(i) Revocation of wills
(ii) Codicil
(iii) Alteration of Wills
2. Describe the reasons behind the revocation of wills.
3. Discuss the ways through which wills can be revoked.
4. Describe the reasons for these events to revoke the wills
i. Marriage
ii. Divorce
5. Compare and contrast the express and implied revocation of Wills.
6.6 References
edition), 787
West's Encyclopedia of American Law, edition 2. The Gale Group,

Inc. 2008
http://www.kottgunn.com.au/updates/how_revoke_your_will/
http://www.inbrief.co.uk/estate-law/revocation-of-a-will/

80


1995
81
CHAPTER SEVEN
INTERPRETATION AND CONSTRUCTION OF WILLS
7.0 Introduction
The primary approach to interpretation of a will is to find the intention of the

testator from the words used in the document itself. That is the guiding principle
of construction. Look at the document. Do not look at what is outside it.
Therefore it is the formal document which is regarded as the primary source of
the intentions of the testator.
This chapter is going to impart us knowledge and skills about how the
interpretation and construction of wills can be done. Henceforth as going on
through the chapter, we shall cover principles, rules and approaches to
interpretation and construction of the wills. We shall be aware with the role of
courts in the interpretation and construction of the wills.
7.1 Objectives
At the end of this chapter you should:-
 Be able to understand the primary approach of the courts to

matters of construction of a will
 Be able to understand the primary approach of the courts to
matters of construction of a will
 Understand the circumstances under which extrinsic
evidence might be admitted to clarify the meaning of a will
82
 Be able to recognise cases of equivocation and instances

where evidence of the testator's actual intention can be
admitted
 Understand some of the special rules which apply in respect
of the construction of wills.
7.2 Construction of Wills
Construction means interpretation or attempting to understand the legal effect of

a will when actual intentions of the testator could not be ascertained.80 The legal
meaning of a will is a matter for the courts to determine. The one court does
both the job of construction and of granting probate of a will. In Kevern v
Ayres & Another81 a case argued before the decision of the Supreme Court, a
deputy judge of the Chancery Division held that the court could not rectify a
deed of variation without first construing the deed, counsel having been able to
find any authority for doing so.
7.3 Interpretation of Wills
Interpretation seeks to determine the testator‟s subjective intentions from the

words used in light of the surrounding circumstances. It was emphasized in the
case of Celestina Paulo v. Mohamed Hussein82 where the court was of the
view that where there is an ascertained will the same must be respected in letter
80
http://www.vanuatu.usp.ac.fj/courses/la303_equity_trusts_and_succession_2/LA303_top
ic8.html. retrieved on 19th September 2016
81
[2014] EWHC 165 (Ch.)
82
1983 TLR 291 (HC)
83
and spirit notwithstanding the difference of religion between the deceased and
the appointed administrator.
7.4 Principles of Interpretation and Construction of Wills
The Ontario Superior Court of Justice in Re Kaptyn Estate83helpfully

summarized many of the principles relating to the interpretation and construction
of wills:
(a) The court will seek to determine the actual intention of the testator, as
opposed to an objective intent presumed by law.
(b) Other cases interpreting words in other wills are of little assistance since
the task is to interpret this testator‟s subjective intentions.84
(c) There is a distinction between interpretation and construction of a
will. Interpretation seeks to determine the testator‟s subjective intentions
from the words used in light of the surrounding circumstances. Rules of
construction are a default process turned to by the courts when the
testator‟s actual intentions cannot be ascertained.85
(d) The starting position of the court is the “armchair rule”, where the court
puts itself in the place of the testator at the time when he made his
will. This allows consideration of some extrinsic evidence of the
surrounding circumstances known to the testator as might bear on his
intentions.86
83
2010 ONSC 4293, 102 O.R. (3d) 1
84
Birtles and Neal, Hutley’s Australian Wills Precedents, 8th edition, 2013
85
R. Ham, Thy will be done: construction and rectification of wills in the Supreme Court
Oxford University Press, Trusts & Trustees, Vol. 20, No. 9, November 2014
86
Birtles and Neal, op-cit
84
(e) The authorities distinguish between admissible and inadmissible extrinsic

evidence in interpreting a will
a. Indirect extrinsic evidence of the surrounding circumstances known
to the testator at the time he made the will is generally
admissible. This includes evidence of such things such as the
testator‟s occupation and property and financial situation; his
relationships with family and friends; and natural objects of his grant
b. Direct extrinsic evidence” of the testator‟s intentions is generally
inadmissible. This is so as to preserve the will itself as the primary
evidence, and to avoid the situation of an “oral will” displacing the
written form. However, there is an exception where there is an
“equivocation”, namely, where the will describes two or more
persons or things equally well. In that situation, the law will allow
evidence of the testator‟s intention. Examples of inadmissible direct
evidence are such things as notes or statements of the testator as to
his intention, or instructions he gave his lawyer in preparing the
will87;
f. the court will interpret the will viewed as a whole
g. the court will prefer an interpretation that leads to a testacy, not an
intestacy
87
85
h. The court will not hesitate to correct obvious mistakes, including deleting
or inserting words, where to do so accords with the testator‟s intentions,
or where not to do so would lead to an absurd result. 88
7.5 Techniques of Interpretation and Construction
There are numerous special rules which apply to the interpretation of legal
documents such as a will. Remember that it is the legal effect which is the key
issue. It is not a matter of determining what the testator might have meant by
the words he or she used in the will.89 It is not a matter of determining what was
in the testator's mind at the time he/she wrote the will. The intention of the
testator is to be determined by the words that are written in the will itself not by
what he/she said at the time it was written or before or afterwards.
7.5.1 Words to be Given Their Ordinary Grammatical Sense
This is sometimes known as the ordinary meaning rule. Words are to be given
their ordinary grammatical sense.90 Of course most words have more than one
meaning so the courts will try to identify the most common meaning of such a
term.
7.5.2 Words Not to Be Read in Isolation
88
89
90
Musyoka, W. Law of Succession, Law Publishing (T) Ltd, Dar es Salaam-Tanzania, 2010,
at page 93
86
Parts of a will cannot be read in isolation. The meaning of the words has to be
gathered from the whole of the will. In other words the whole of the will
provides the context for the interpretation of the will. 91 Some words or phrases
when read in isolation might appear meaningless or puzzling. However when
they are read in the context of the will as whole the meaning might become
clear.
7.5.3 The Dictionary Principle
Sometimes the will might contain a dictionary or glossary of the meaning of

particular words used by the testator in the will. Not a formal dictionary as such
but the will might function like a dictionary. The court will look at it in this way to
see if they can find whether the testator used some words in a special way. A
testator may use a word in a particular way so as to fix the word with a special
meaning this can be either express or implied from the context of the will. 92
Regard cannot be had to precedent for the meaning of a word as used in a
different will, as it is inherently case-by-case.93
In Pickles v. Helliwell94 whereby the testator left property to his nephews and
in another part of the will provided that illegitimate son of his illegitimate sister
was to participate equally with my other nephews. The court stated that the
testator has used the word nephew in the sense wider than normal.
7.5.4 Technical Words
91
Ibid, at page 93
92
Hill v Crook (1873) LR 6 HL 256; Re Rowlands [1973] VR 225
93
Lutheran Church v Farmer’s Co-operative Executors & Trustees Ltd (1970) 121 CLR 628
94
[1916] 2 Ch. 580
87
Where technical words are used in a will they will normally be given their
technical meaning. That is unless the will shows that they were intended to be
used in a non-technical way. This could include legal, scientific and other
technical terminology. Technical words are normally given their technical
meaning unless the will as a whole evinces a different intention. 95 The technical
meaning will be applied even if the testator was mistaken as to the meaning. 96
7.5.5 Words may have secondary meanings
The will as a whole will be considered. In other words, if there is a provision or

clause which is not clear, the court will consider the whole will as some other
clause may throw light on the clause that is not clear.97 If, for instance, the
words used by the testator are not clear, but a secondary meaning is, the courts
will use the secondary meaning. Much depends on the context in which they are
used in the will.
7.5.6 Words may have particular meanings
Furthermore, a testator may belong to a special class or group of people. Such a

group may give particular meanings to words. The courts will accept that those
meanings are the meanings which the testator had in mind.98
95
Winter v Peratt (1843) 6 M & G 314; 134 ER 914
96
Re Cook [1948] Ch. 212
97
98
at page 96
88
A testator may belong to a certain church, the members of which are known as
„God‟s children‟. If he leaves, for example, a sum of money to „God‟s children‟,
the courts will interpret those words in the way the testator intended.
7.5.7 Later provisions will take precedence

The courts are not too keen to apply another rule which is more a rule of thumb.
That is, where there are two provisions which are inconsistent, the courts will
regard the latter provision as the true one. The reason behind this is that this
provision was written at a later stage than the first provision. 99
A rather obvious example is, where the first clause in a will gives "all my property
to my wife" and a later clause gives "all my property to my daughter" it is the
latter one which will prevail. The two clauses are clearly inconsistent and in such
cases the court prefers the second one.
Another course of action would be to hold that the will is invalid for uncertainty.
But the courts generally prefer to uphold a will as valid wherever they can. 100
There is another rule on this which is the rule against intestacy. Intestacy is a
situation where a testator dies without a will. The courts will generally adopt an
interpretation of a will which will uphold it as valid in order to prevent an
intestacy arising.
Where a first clause gives "all my property to my wife" and a second clause gives
"my motor vehicle to my daughter" the result would be that the first clause is
99
Paul D. Weiser, Extrinsic Evidence and the Construction of Wills in California, 50 Cal. L.
Rev. 283 (1962)
100
Williams and McCullough, Statutory Will Applications, 2013
89
actually read subject to the second one. In other words the wife would receive
the entire testator's property other than the car.
7.6Approaches to Interpretation of Wills
The meaning of words changes over time. A testator might have made a will
when he or she was young. He or she might have died 50 or so years later.
Within that time the meaning of the words in the will might have changed
considerably. How does the court approach this issue?
7.6.1 Meaning of words in Will when the Will was made
One approach would be to say that the words in the will should be given the
meaning which prevailed at the time when the will was made. As the testator
actually signed the will at that time that might seem a reasonable approach to
take.101
On the other hand, the testator left the same will in force up until his or her
death so should one assume that the testator accepted the change in
meaning?102
7.6.2 Meaning of words in Will at the time of death
101
at page 95
102
M. D. Kirby, "Towards a Grand Theory of Interpretation: The Case of Statutes and
Contracts", (2003) 24 Statute Law Review 95
90
The other approach is therefore to give the words their meaning at the time of
death. This is when the will comes legally into effect. Hence it is usually said that
the will speaks from the date of death.
7.6.3 Mixed Approach
Generally the courts adopt both approaches one in relation to persons and the
other in relation to property. The meaning of expressions used to describe
persons named in the will is taken from the date of making of the will.103
This is only so where the question is one of the identity of a specific person.
Where persons are identified as members of a class or in a very general way all
those persons who fit the description at the date of death will be included. 104
For example, if there is a gift to all my children all of the testators children at the
date of death will be entitled to a share in the property, including those who
might have been born after the date of death.
The meaning of references to property is taken from the date of death of the
testator that is, when the will comes into effect.
103
at page 95
104
Wigram, Extrinsic Evidence In The Aid Of The Interpretation or Wills 262-63 (2d
American ed. 1872)
91
7.7Goal of Interpretation of Wills
Rondel v. Robinson Estate105 provided that the goal in interpreting a will is to

give effect to the testamentary intentions of the testatrix for the distribution of
her estate.
7.8Role of Court in interpretation and construction of wills
The general rule is that the court will look only at the words of the will. 106 It will
not admit extrinsic evidence of what the testator has or may have actually
intended. But, there are a few exceptions to this rule that extrinsic evidence will
not be taken into account.
7.8.1 Armchair rule
In construing the will, the court can put itself in the testator‟s position at the
time he or she made the will in order to understand the words of the will itself. 107
This rule can only be used to confirm the apparent effect of a will or to shed light
on vague terms. It cannot be used to alter the effect of the words used in the
will if those words are clear and unambiguous. It could be used to explain
unclear term.108
105
2011 ONCA 493, 337 D.L.R. (4th) 193, at paragraph 23
106
at page 94
107
Boyes v. Cook [1880] 14 Ch.D 53
108
Ricketts v. Turquand ( 1848) 1 HL case 472
92
There are cases where the terms of the written document contain an element of
ambiguity or uncertainty. The court will not be able to resolve that ambiguity or
uncertainty by examining the document. It certainly looks at the whole of the
document to see whether it can do so. But there are cases when even that gives
no clear guide to what was intended.
Hence the rule is invoked to mostly to enable the court to be aware of the facts
that were known to the testator at the time f execution of will. It is used to
identify the beneficiary or the subject matter of the will. It is applied by the
court by construing the will without reference to the surrounding circumstances
to ascertain that the will is being construed in accordance with the
circumstances, which prevailed at the time when the will was made.
The classic statement of the principle is to be found in Allgood v

Blake109 whereby it involves the court putting itself in the position of the testator
as far as possible. It can take evidence of surrounding circumstances of the
testator.
The court places itself in the testator‟s position, and looks at all the facts which
were known to the testator at the time when the will was made.110
In other words the court puts itself in the armchair of the testator and tries to
understand how the testator viewed things. The aim is to ascertain what the
testator meant by using the words which he/she used in the will. It is not:
109
(1878) LR 8 Exch 160 at 162
110
at page 95
93
i. A matter of finding the testator's actual (subjective) intention i.e. what

was in the testator's mind at the time of making the will.
ii. A matter of the court asking whether the testator intended to benefit
particular people or make a particular sort of will.
The exercise is one of trying to ascertain what the testator meant by the words
he used. Did he or she, for example, use those words in a special way? Did he or
she refer to people by particular names?
7.8.2 Ambiguous words
Where words are ambiguous on the face of the will, either direct or
circumstantial evidence is admissible to explain the words. Words are said to be
ambiguous on the face of the will where the words have more than one normal
meaning.
Where there is ambiguity in the will. Where there is ambiguity on the face of the
will, the court will refer to extrinsic evidence using the armchair principle.
7.8.3 Meaningless words
Meaningless words are words where the courts cannot without extrinsic evidence
give any meaning to the word or phrase.111 A provision of a will cannot be said to
meaningless just because it seems pointless in the sense that it has no effect.
111
Kell v. Charmer (1856) 23 Beaver 195
94
Where the words are meaningless, the court will use extrinsic evidence to
ascertain what the meaning was (if any) that the testator might have attached to
such language.112
The rationale behind the rule is that purpose of admitting extrinsic evidence to
assist in the interpretation of the will and arguably one cannot interpret a blank
space. Interpretation should be of a phrase as whole.113
7.9 Summary
In above chapter we have learnt that the primary rule of construction

in the interpretation of wills is to ascertain the testator's intent.' This
intent is first sought in the language of the will. If the testator's intent
is not clear from the language of the will or proves uncertain when
applied to the extrinsic facts, the will is said to be ambiguous. The will
either must fail for uncertainty or extrinsic evidence must be admitted
to resolve the ambiguity because the meaning of words changes over
time. A testator might have made a will when he or she was young.
The issue of the admissibility of extrinsic evidence to aid in the
construction of a will also arises in cases that do not necessarily
involve the resolution of an ambiguity, such as a testator's mistake or
his failure to anticipate an eventuality. Interpretation seeks to
112
M. D. Kirby, "Towards a Grand Theory of Interpretation: The Case of Statutes and
Contracts", (2003) 24 Statute Law Review 95
113
at page 96
95
determine the testator‟s subjective intentions from the words used in

light of the surrounding circumstances. Construction means
interpretation or attempting to understand the legal effect of a will.
Rules of construction are a default process turned to by the courts
when the testator‟s actual intentions cannot be ascertained. The
general rule is that the court will look only at the words of the will. It
will not admit extrinsic evidence of what the testator has or may have
actually intended. But, there are a few exceptions to this rule that
extrinsic evidence will not be taken into account. Extrinsic evidence
should not be permitted to contradict a will, but the process of
interpretation should uniformly take into account every indication of
the testator's actual meaning including his direct declarations. The
only real issue should be the weight that is to be afforded the
particular extrinsic evidence that is offered
7.10 Activities
1. What is the primary approach to interpretation of a will? Why is this

approach taken?
2. How does the armchair rule operate? Will the court always apply
this rule?
3. When is evidence of a testator's actual intention admissible in
evidence?
4. "A will always speaks from the date of death." Is this entirely
accurate?
96
7.11 References
Birtles and Neal, Hutley‟s Australian Wills Precedents, 8th edition,

2013
M. D. Kirby, "Towards a Grand Theory of Interpretation: The

Case of Statutes and Contracts", (2003) 24 Statute Law Review
95
Paul D. Weiser, Extrinsic Evidence and the Construction of Wills in

California, 50 Cal. L. Rev. 283 (1962)
R. Ham, Thy will be done: construction and rectification of wills in

the Supreme Court Oxford University Press, Trusts & Trustees,
Vol. 20, No. 9, November 2014
W. Musyoka, Law of Succession, Law Publishing (T) Ltd, Dar es

Williams and McCullough, Statutory Will Applications, 2013
Wigram on the Admission of Extrinsic Evidence in Aid of the

Interpretation of Wills
Wigram, Extrinsic Evidence In The Aid Of The Interpretation or

Wills 262-63 (2d American ed. 1872)
97
CHAPTER EIGHT
INTESTACY RULES IN TANZANIA
8.0 Introduction
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. For instance
where a person die without leaving a will, it is regarded as intestate. Even if he
left a will which for some reasons it cannot take effect it will still be intestate.
There are two types of intestacy. Namely total and partial intestacy.
Total intestacy arises where a person die without leaving a will at all. Where a
person die leaving a defective will i.e bad in law. Where a will become
inoperative eg a legatee pre-decease the executor (beneficiary of the will die
before execution). Partial intestacy may occur where only part of the beneficial
98
interest is disposed off. Where a person die intestate „the property devolves upon
the wife or husband, or upon those who are of kindred of the deceased. 114
Therefore in this chapter we are going to learn about intestacy rules application
in Tanzania. These rules shall be described to the extent of their application in
various matters of inheritance in Tanzania.
8.1 Objectives
 Acquire basic knowledge on concepts such as intestacy,

partial and total intestacy.
 Acquired basic knowledge and skills on the basic rules of
intestacy according to statute law, customary law and
Islamic law
 Acquainted with analytic skills to solve the legal issues
related to the intestacy
 Developed ability to compare and contrast the status of the
heirs under Islamic, customary and statute rules of intestacy
8.2 Rules of intestacy
They refer to rules which concerns the grounds under which an individual may
be entitled in the estate of the deceased. The rules which regulate the
distribution of estates depends on whether the deceased died without a will
(Intestate) or otherwise.
114
Ibid section 26
99
8.2.1 Rules of intestacy for Christians and European origin
Under section 88 (2) of Probate and Administration of Estate Act 115, it is provided
that if at any time any person to whose estate the Act applies professed the
Christian religion and the court exercising jurisdiction over his estate is satisfied
that the deceased intended his estate to be administered either wholly or in part
according to the law applicable in Tanzania to the administration of the estates
of persons professing the Christian religion then his estate shall be administered
so.
To wit the relevant law for administration of estates of deceased Christians is the
Indian Succession Act (1865).
As noted above the Indian Succession Act (1865) apply to christians and people
of European origin. According to section 27 of the Indian Succession Act, the
rules are as follows:
Where the intestate has left a widow and has also left any lineal
descendants one third of the property belongs to his widow and the
remaining two thirds shall go to his lineal descendants.
Where he has left a widow and 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 half to those who are of kindred to him.
Where he has left a widow but left none who is of kindred to him, the
whole of the property shall belong to his widow.
115
Cap 352 R E 2002
100
In case the intestate left no widow, section 28 provides that the property shall
belong to his lineal descendants or to those who are of kindred to him not being
lineal descendants, if none is kindred to him it shall belong to the State.
Where the intestate has left a widow the rules for the distribution of an
intestate‟s property after deducting the widow‟s share among his lineal
descendants are as provided under sections 30 to 33.
Where he has left surviving him a child or children, but no more lineal
descendants through a deceased child, the property shall belong to his surviving
child. If there is more than one child it shall be divided equally among all the
surviving children.116
Where the intestate has not left surviving him any child but has left a grandchild
or grandchildren, and no more remote descendants through a deceased
grandchild, the property shall belong to his surviving grandchild, if there be only
one or if more than one shall be equally divided among all his surviving
grandchildren.117
Where the intestate has not left surviving him any child or grandchild the
property shall belong to the surviving lineal descendants who are nearest in
degree to the intestate, where they are all in the degree of great-grandchildren
or are all in a more remote degree to him.118
116
Ibid section 30
117
Ibid section 31
118
Ibid section 32
101
If the intestate has left lineal descendants who do not all stand in the same
degree of kindred to him, and the persons through whom the more remote are
descended from him are dead, the property shall be divided into such a number
of equal shares as may correspond with the number of the lineal descendants of
the intestate who either stood in the nearest degree of kindred to him at his
decease, or having been of the like degree of kindred to him, died before him,
leaving lineal descendants who survived him.
i. One of such shares shall be alloted to each of the lineal descendants

who stood in the nearest degree of kindred to the intestate at his
decease;
ii. One of such shares shall be allotted in respect of each of such
deceased lineal descendants;
iii. The share allotted in respect of each of such deceased lineal
descendants shall belong to his surving child or children or more
remote lineal descendants as the case may be
iv. Such surviving child or children or more remote lineal descendants
always taking the share which his or their parent or parents would have
been entitled to respectively, if such parent or parents had survived the
intestate.119
Apart from the what the Act provides it does not apply to the estate of a
deceased moslem. It only apply to Christians and all of European origin.
119
Ibid section 33, also consider sections 35, 36, 37, 38, 39, 40, 41, and 42 on rules
relating to distribution of intestate property after deducting the widow’s share where
there are no lineal descendants.
102
Illegitimate children are exluded from inheriting their father‟s estate but they
may only inherit from the estate of their deceased mothers.
The main considereation in this law is the welfare of the deceased‟s immediate
family and dependants. The law is more inclined towards equality of division
among the heir of the same degree.
It does away with the distinction between male and female children of the
deceased because all of them inherit equal share.
It does not make distinction as regards to succession to movable and immovable

property provided that the said properties are situated in the territory of
Tanzania.
8.2.2 Customary rules of intestacy
In Tanzania, inheritance has been made uniform under customary law

Declaration for Patrilineal tribes who compose about 80% of the population from
Bantu, ethnic group mainly.
The remaining 20% is made up of matrilineal people from Eastern Tanzania. The
Luguru, Zaramo, Yao Ngindo, Zigua, Ndengereko, Wadoe, Makonde, Kwere etc.
The Matrilineal people reckon decency from the female line. Principal heirs are
the uterine brothers (and his sister sons).120
120
See James R.W and Fimbo G.M p 167
103
8.2.2.1 Relevant laws
According to section 88(1) (b) of the Act, the estate of a member of a tribe shall
be administered according to the law of that tribe unless the deceased at any
time professed Islam religion and the court exercising jurisdiction over his estate
is satisfied from his oral/written declaration or his acts or manner of life indicated
that he intended his estate to be administered wholly or partly under that law.
For administration of estates and succession in general the Minister passed the
Local Customary Law Declaration No 4 Order 1964 GN 436 of 1963. The
2nd schedule of the Order relates to rules of inheritance. The 3rd schedule of the
Order relates to rules on wills. The Declaration only concerns with patrilineal
tribes. The rules were not mandatory as they depended on adoption by the
relevant District Councils. Most District Councils adopted the rules with very few
modifications eg GN 436, 474 and 605 of 1963. Uniform customary law process
is outlined in section 9A of the JALA.
8.2.2.2 Administrator
Rule 5 defines an administrator at customary law. That the administrator of the

deceased‟s property is the eldest brother of the deceased, or his father and if
there is no brother or father any other brother chosen with the help of the clan
council.
If there is no brother his sister is the administrator. The rules reflect patrilineal
inheritance and thus give the lowest possibility/probability for women to become
administrators.
104
8.2.2.3 Clan Council
Rules 6 provides for the Meeting of the Clan Council. The duties of the clan
council are:
i. To ascertain the deceased‟s possession,

ii. To discuss the deceased‟s claims and debts,
iii. To call upon claimants to present their claims according to rules 7 and 8 of
the Order and
iv. To determine a system of distributing the inheritance.
8.2.2.4 Male and female heirs
Under the Local Customary Law Declaration Order, No.4/1963 males inherit
movable and immovable properties absolutely, but females inherit immovable
property only for their use during their life time. They cannot sell such
immovable property unless there are no male members in the family.
However, the High Court of Tanzania in the case of Bernado Ephrahim vs.
Holaria Pastory and Gervazi Kazirege121 Mwalusanya J. as he then was,
declared this custom as being discriminatory and unconstitutional. It is noted
that the situation now obtained in urban areas is different because of the
existence of acquired property.
Rule 24 provides that where the deceased person has distributed part of his
estate inter-vivos (While he is living) this portion will be taken into account
during distribution after his death.
121
(PCC) Civil Appeal No.70 of 1989 (unreported)
105
The Local Customary Law (Declaration) Order, 1963 (Law of Persons) GN.79 of
1963 provide that the widow is asked to choose whether she wishes to live as a
wife with one of the deceased husband's relatives. If she refuses the offer, no
bride wealth is to be paid back and she is free to return to her relatives.
Claimants who do not present their claims at the clan council cannot be
entertained afterwards.122 Where the claimant was absent or was not informed,
he could claim from the heir.123
Where the property is insufficient to pay for the debts the heirs will be liable for
the liability of the deceased.124 Under customary law inheritability of debt is
recognized and the heirs have to pay.
Under the general law one can just pay the debt from the deceased‟s assets
(Probate and Administration of Estates Act). The distribution of the deceased‟s
estate must be made as soon as possible in the meeting of the clan council.125
The period from which distribution must ensue is not less than 3 months. An heir
can determine how speedy will the distribution be.126
8.2.2.5 Properties for inheritance

The general rules of inheritance as presented under Order No 4 divide property
in three categories.
122
See rule 10
123
See rule 18
124
Per rules 12 and 13
125
See rule 14
126
See rules 16 and 17
106
(a) Self-acquired property i.e land acquired through the efforts of the
individual eg clearing of acquiring virgin land or acquiring land through
exchange ie sale and other kinds of disposition.127
(b) Family land: This is land which is held on a kind of corporate / group
tenure and any disposition of such land will depend on permission from
the other co-owners of the family property.128
Family land is generally allocated to male line. Daughters stand practically
with no chance to inherit family land as owners. They may just do so on a
usufructuary basis provided they are not married see rules 20 and 31 of
the Order.
In the case of Robert Lugakingira vs Leonard F Lugakingira129 it was
held that the court has no power to order sale of family property. All it can
do is to order its division according to the rules of inheritance of the
existing customary law. It can order physical division by allocating shares
among the lawful claimants and not by sale and the division of the sale
proceeds.
(c) Clan land: This is land similar to family land but the ownership unit / the
corporate that owns the land is larger and several families which belong to
the same clan hold the land together. When a clan land has been disposed
to a stranger a clan member generally release it within specified period.130
127
See James R.W and Fimbo G.M pp 166-170
128
See James R.W and Fimbo G.M pp 144-254 and pp 262-292
129
(1967) HCD 167, James R.W and Fimbo G.M p 183
130
See Chapter 18 in James R.W and Fimbo G.M
107
8.2.2.6 Degrees of inheritance

The rules provide the main heir has a bigger share than any of the others. Heirs
in the 2nd degree get a bigger share than those in the 3rd degree.131 The sons
get more than daughters. As per rule 30, within the 2nd and 3rd degrees,
individual heirs will get more in accordance with age.132
In Donald s/o Musa v. Tutito s/o Yonathan stated that133 second degree
heirs include all other sons and they inherit a bigger share than daughters who
are normally heirs in third degree. Third degree heirs are normally the daughters
of the deceased.
Their share of inheritance is normally smaller than the heirs in the other two
degrees. Where the deceased leaves no sons than the daughter of the first
house will be the heir in the first degree.
There have however been isolated High Court decisions which had the effect of
modifying such customary law rule limiting the right of daughters to inherit
immovable estate from deceased parents absolutely as opposed to usufructuary
right only.
There is the gender-based inequality in the share of deceased's estate among

sons and134 daughters of a deceased person and between the senior-most and
other junior children of the deceased.
131
See rule 23
132
See James R.W and Fimbo G.M p 168
133
[1967] HCD no. 118
134
Op.cit fn 365 at 8
108
As a result there has been a long standing outcry in the country that daughters
are generally discriminated as against sons when it comes to the succession over
the estate of their deceased parent.
Daughters take second place to all the sons (if there is such right to inherit)
irrespective of seniority in their birth, and that in most communities a daughter
cannot have an absolute title to an immovable property, such as land, if the
deceased has been survived by male relatives.
The main reasons that seem to have been common to almost all tribes for such
discrimination, harboured by both fathers and mothers, and leading most couples
to lament when they have not been blessed with a son, has been the
apprehension that, first, upon marriage daughters would go to and become part
of the family of their respective husbands; second, that upon becoming of age it
is the sons who would look after and provide for the aged parents.
The first of such court's endeavours to accord women in Tanzania Mainland, an

equal status to men in matter of inheritance in respect of immovable property,
such as clan lands, was made in the case of Ndewawoisia d/o Ndeamtzo vs
Immanuel Malasia.135 In that case, the appellant was a Chagga by tribe and
the youngest daughter of her deceased father, out of five daughters surviving
him. She was claiming recovery of the land from the Respondent, who was the
nephew of her deceased father who had then inherited such land, on the ground
that females are not entitled to inherit clan land and 9 on the assertion that prior
to his death the deceased had asked the Respondent to take charge of the land.
135
(1968) H.C.D. 127
109
Rule 20 of the Local Customary Law (Declaration) (No.4) Order 1963, GN. 436 of
1963, provides thus:
"Women can inherit, except for clan land, which they may receive in
usufruct but not sell."
With regard to this provision of Rule 20, Saidi J, as he then was, made a
progressive decision in the following terms that:
"It is quite clear that this traditional custom has outlived its usefulness.
The age of discrimination based on sex is long gone and the world is now
in the stage of full equality of all human beings irrespective of their sex,
creed, race or colour. On grounds of natural justice and equity daughters
like sons in every part of Tanzania should be allowed to inherit the
property of their deceased fathers whatever its kind or origin, on the basis
of equality"
This decision of the Court, however, does not appear to have had much support.
For a decade later another decision by the same court gave support to the stand
of Rule 20.
That was the decision of Lugakingira, J, in the case of Clementina Tikengwa

and Another vs Traseas Kabogi.136 The dispute involved again on the right of
women to inherit clan land. The learned Judge applied Rule 20 to deny the
daughter and widow of the deceased full inheritance of a portion of clan land
held by the deceased.
136
[1978] LRT 49
110
In the case of Bernado Ephraim vs Holaria Pastory and Gervasi

Kaizilage,137 the High Court, (Mwalusanya, J,) declared Rule 20 of G.N 436
unconstitutional for being inconsistent with Article 13(4) of our Constitution
which bars discrimination on account of sex.
His Lordship then declared that under section 5(10) of Act No. 16/1984, Rule 20
of the Rules of inheritance, G.N 436/1963 had been qualified, such that male and
females have now equal rights to inherit and sell clan land.
It was further declared that Rules governing the inheritance of Holding by

Female Heirs (1944) made by the Bukoba Native Authority which in rules 4 and
8, entitle a female who inherit self-acquired land of her father to have
usufructuary rights with no power to sell that land, to be void and of no effect. 138
8.2.2.7 Disinheritance rules

An heir who has been deprived of his inheritance must be given a chance to
defend himself before the testator and the clan council.139
Any person who knew that he had been deprived of his inheritance but never
bothered to defend himself may not contest the will after the testator‟s death.140
If the person deprived of the inheritance had no knowledge of it prior to the

death of the testator, he will be heard by the clan council which have power to
admit or reject his claim.141
137
H/C (PC) Civil Appeal No. 70/89, (MZ) (Unreported)
138
Op.cit fn 365 at 10
139
See rule 35
140
See rule 36
141
See rule 37
111
If in the will it appears that a person has been deprived of his inheritance
without any justifiable reasons, the will shall be revoked and the property will be
distributed according to intestate rules.142
Committing adultery with the testator‟s wife143 and attempted to murder him or
failing to look after him in hunger or sickness without justifiable reasons.144
According to rule 39 it is the clan which determines a case of this nature but in
case of dissatisfaction one can go before a Magistrate‟s Court.145
8.2.3 Islamic rules of intestacy
Islamic Law is linked with the Mohamedan beliefs in that it is embodied in the
Quran Surat-l-Baqaro (S.II), Surat Nisaa (S.iv) and Surat-l-Maida (S.V) and is in
no way influenced by changes in the society. Majority of Muslims in this country
are Sunni or Shafii School of thought.
The Probate and Administration of Estates Act Cap 352 RE 2002 provides the
statutory basis of Islamic law of succession in the case of specified natives.
The law provides the test for the application of the law. If the deceased
professed Islamic at any time and the court is satisfied that from the written or
oral declarations of the deceased or his acts or manner of life he intended his
142
See rule 38
143
Rule 31
144
Rule 34
145
See Rules 38 and 39 of the 3rd schedule on wills
112
estate to be administered either wholly or in part according to Islamic law,

146
Islamic law will apply.
If the estate is that of a „Swahili‟ then Islamic law applies otherwise tribal law is
applicable. However, the mere professing of Islam is not sufficient to invoke
Islamic law in the distribution of the deceased‟s estate, the deceased must have
made written or oral declarations of his intention to have his estate administered
according to Islamic law or his acts/ manner of life convinces the court that the
deceased intended Islamic law to apply.
8.2.3.1 Principle Heirs

Under Islamic law of inheritance there are three principal classes of heirs - the
"sharers" or "koranic heirs"; "Residuaries" and the "Distant Kindred." The rule
regarding their right of inheritance prescribes that residuaries inherit only where
there are no koranic heirs or where the inheritable estate is not exhausted by the
Koranic heirs and the distant kindred inherit only where there are no sharers of
residuaries; as the Koranic heir, Mgeni Hemedi, did not exhaust the estate the
only person who had the right of inheritance in the circumstances was a
residuary i.e. the second appellant. The rest of the claimants had no right under
Islamic laws
8.2.3.2 Islamic Inheritance Scenarios for Male

Deceased
Son Father Wife Daughte Mother Sister
r
146
Section 88(1) (a) of the Probate and Administration of Estates Act
113
Scenario 1 Only 1: 1/8 ¼

½
Scenario 2 2 or 1/8 Residual

more: Amt
2/3
Scenario 3 ¼ 1/8 1/8 ½
Scenario 4 1/3 ¼ 1/3 Residu

al Amt
Description of the Scenarios:
Scenario 1: Where the deceased left only one son and a daughter, the son takes
½, the daughter ¼ and the widow 1/8.
Scenario 2: Where the deceased left two or more sons and residuary, the sons
get 2/3, the widow 1/8 and the remaining goes to the residuary.
Scenario 3: where the deceased has left a son, daughter and a sister, the son
gets ¼, the daughter 1/8, the sister ½ and the widow 1/8.
Scenario 4: Where the deceased did not leave a son, but father, mother, wife
and residuary; the father gets 1/3, the mother 1/3, widow ¼ and the rest goes
to the residuary.
114
Note: Other relatives that may have rights to the inheritance depending on
circumstances, are: grandfather, half-brother (mother's side), son's daughter,
grandmother (paternal), sister, half-sister (paternal)
8.2.3.3 Tests for application of Islamic rules

i. The Mode of Life Test
In traditional Islamic law the professing of Islam is sufficient to establish the
applicable law in the administration of the estate upon death. The intention of
deceased can only have effect on partial application of Islamic law to the
administration of the estate. In traditional Islamic law once established that
Islamic law applies to the estate, it affects the whole of it subject only to the
intestacy and testacy portions.
In the matter of The Estate of the late Salum Omari Meremi,147 the
deceased was Hehe Moslem. He was an army Officer. He married a member of
his own tribe and contracted a Civil marriage. He was a practicing Muslim Justice
Mfalila held that applying mode of life test (that he was a practicing moslem) the
deceased had 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
ii. The Intention of the Deceased Test

When an African is also a Muslim, there is a problem as to which law is
applicable between Customary Law and Islamic Law. The tests which used in
making the choices are the written, oral declarations acts intention or manner of
life of the deceased.
147
[1973] LRT No.80
115
This test is now founded in the Probate and Administration Act but formerly it
was under the Administration (Small Estate) Ordinance Cap. 30
Section 88 of the Act provides inter alia that:
"the estate of a member of a native tribe shall be administered according

to the law of that tribe unless the deceased at any time he professed the
Mohamedan religion and the court exercising jurisdiction over his estate is
satisfied from the written or oral declarations of the deceased or his acts
or manner of life that the deceased intended his estate to be administered
according to Customary law.”
Therefore the thinking that, when one dies professing Islam, then Islamic Law
will automatically apply in the administration of his estate is erroneous. For
African Muslims preference will be given to Islamic Law, unless the deceased is a
Swahili. A Swahili is defined to mean, the Bantu people inhabiting Zanzibar and
adjacent Coasts, Kiswahili being their language.
This was the position in the landmark case of RE Estate of the Late Suleman
Kusundwa.148 In this case the deceased was a Nyamwezi by tribe and married
the applicant in this suit (one of the four wives of the deceased) according to
Islamic Law rites. The applicant was excluded from the "Will" of the deceased
who purported to leave the entire estate to his nephew.
For the applicant to inherit from the deceased's estate entirely depended upon
which law was applicable in the circumstances. The wife was contending that
Islamic law did apply and the Administrator General was contending that it was
148
[1965] E.A. 247
116
Nyamwezi Customary Law that was applicable. Sir Ralph Windham, C.J. found it
as a fact that this case did not fall under the ambit of section 19(1)(a) of the
Administration (Small Estates) Ordinance Cap.30 as it used to apply and so he
resorted to judicial authorities on choice of law.
In this exercise he came to an agreement with the conclusion of Spry, J. in the

case of Hussein Mbwana vs. Amiri Chongwe,149 where he stated that: "I
hold therefore there are two systems of law which may apply in African Muslims
Community, religious law in matters peculiarly personal such as marriage, and
customary law which may apply in all spheres of life."
Sir Ralph Windham added that, it cannot be held that while the rights of an
African Moslem wife at and during her marriage are to be governed by Muslim
law, her rights of inheritance upon her husband's death are to be governed by
her tribal custom, which may give her no such rights.
The status and rights of a wife after her husband's death must be governed by
the same corpus of law as governed then before his death. Her rights of
inheritance are bound up with her right, or the comparative lack of them, during
the matrimony, and are in the nature of counter-balance or safe-guard to her
when she loses her protector. He held that law to be applied in the distribution of
the deceased's estate is a Muslim law.
By the general Mohammedan law on a person‟s death his property vests

immediately in his heirs who can convey their share at once before distribution of
149
Civil Appeal No. 1 of 1963 (T) (unreported)
117
the assets. Wakf (contribution made by the deceased from his estate to a
mosque or to advance Islamic matters) can only be 1/3rd or less.
If it is above that the heirs must consent. Where the deceased left a widow 1/8th
of the estate goes to the widow but provided he left children. Where he left no
children 1/4th of the estate goes to the widow. Generally under Islamic law the
father, mother, wife or husband and children of the deceased are entitled to
inherit in the estate of the deceased.
Any will that acknowledges them as heirs is defective. The will should involve
other heirs who are not particularly entitled. It is conceived under Islamic law
that after 40days from the death of the deceased the widow is free to re-marry
another man and that is the justification for the parents and relatives to inherit.
In Manungwa Lutamila and Others vs Martha Lutamila150 it was noted

that there were many cases where District Courts have overruled decisions of
Primary courts to entertain administration cases which include property on
registered land on the ground that the Primary Courts have no jurisdiction to
entertain such cases. The District Court which is next nearest to the people has
no comparable original jurisdiction on matters of Probate and Administration.
The Resident Magistrates Court and the High Courts are far from the ordinary
people geographically as well as financially. This observation has been supported
by Justice Mfalila.
8.2.4 Hindu rules of intestacy
150
(1982) TLR 98
118
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.
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.
8.2.5 Non-Christian Asiatic rules of intestacy
Under section 6(1) of The Succession (Non-Christian Asiatic) Act151 succession to

the movable property in Mainland Tanzania of a deceased Non-Christian Asiatic
who at the time of death is domiciled in Mainland Tanzania and to the
immovable property in Mainland Tanzania of such a Non-Christian Asiatic
whether or not domiciled in Mainland Tanzania at the death, shall be regulated
by the law of the religion professed by that Non-Christian Asiatic at death
provided that:
i. the law of any religion that deprives any person of a right of succession to
property by reason of that person having renounced or having been
excluded from the communion of any religion or having been deprived of
caste shall not be in force in mainland Tanzania; and
151
Cap 28 RE 2002
119
ii. Every creditor shall have the same rights and remedies against the estate
of a deceased Non-Christian Asiatic, including the right to follow assets, as
the creditor has against the estate of a deceased Christian.
According to section 8(1) …the law of the religion of any person shall be that law
subject to any special custom recognized and adopted by persons of that religion
domiciled in Tanzania or in the case of a Hindu by members of the caste so
domiciled.
A court may ascertain the law of any religion or custom by any means which it
thinks fit,152 and may act on information which appears to the court to be
credible though it is not legal evidence and in case of doubt or uncertainty the
court may decide as the principles of justice, equity and good conscience may
dictate.
8.3 Summary
In above chapter we have learnt that intestacy is very predominant

when a person dies without a Will. Rules of intestacy are governed by
statute, customary or Islamic. Customary rules of intestacy provides
that the main heirs of the decease estate are 10 in number; children
(sons and daughters), grand children, brothers, sisters and their
children, father, paternal uncle and aunts, husband or wife. Where the
deceased leaves a son or sons and daughters, they will inherit all of
his property exclusively. Intestacy under customary law is in three
152
Consider the case of Mawji Damji vs Alibhai Damji Devraji (1955)22 EACA 162 James
R.W and Fimbo G.M at 269
120
degrees. First degree heirs inherit first and get the biggest share of
inheritance. Normally the first son from the first house is the heir in
the first degree. Second degree heirs include all other sons and they
inherit a bigger share than daughters who are normally heirs in third
degree. Third degree heirs are normally the daughters of the
deceased. Their share of inheritance is normally smaller than the heirs
in the other two degrees. Where the deceased leaves no sons that the
daughter of the first house will be the heir in the first degree. Rules of
intestacy under statute apply where the intestate is survived by no
children but grandchildren and great grandchildren. The deceased‟s
father, mother, brothers and sisters, inherit only where there are no
lineal descendants surviving him. They share half of the estate where
there is a widow surviving. The husband surviving his wife has the
same rights in respect of her property, if she dies intestate, as the
widow has in respect of her husband‟s property, if he dies intestate.
They do away with the distinction between male and female children
of the deceased. They inherit equal shares. They do not make any
distinction, as regards succession to movable and immovable property
provided that the said properties are situated in the territory. Islamic
rules of intestacy provide that there are three principal classes of heirs
the sharers or koranic heirs; "Residuaries" and the "Distant Kindred."
The rule regarding their right of inheritance prescribes that residuaries
inherit only where there are no koranic heirs or where the inheritable
estate is not exhausted by the Koranic heirs and the distant kindred
inherit only where there are no sharers of residuaries; as the Koranic
121
heir did not exhaust the estate the only person who had the right of
inheritance in the circumstances was a residuary i.e. the second
appellant.
8.4 Activities
1. Illustrate the rules of intestacy according to the statute laws.
2. Describe the rules of intestacy according to the customary
laws of Tanzania
3. Discuss the rules of intestacy according to the Islamic laws.
4. Compare and contrast Islamic and customary rules of
inheritance.
5. Opine on the status of widows and illegitimate children under
the following rules of intestacy:-
(i) Statute law
(ii) Islamic law
(iii) Customary law
8.5 References
edition), 787


122


1995
123
CHAPTER NINE
PROTECTION OF ESTATE
9.0 Introduction
After death of a person, it is often that representatives who are required by the
law undertake the administration of estate of deceased property do not fulfill
that task on time. This exposes the deceased property into wastage or
intermeddling and misapplication by beneficiaries or unauthorized person.
Death operates as an opportunity for distant relatives and even strangers to help
themselves out of whatever is tangible estate has left behind. The estate turns to
be wild tree that everyone does whatever is possible to gather some fruits. The
law has jealously guarded all these eventualities by providing number of
protection.
Therefore this chapter entails mechanisms which are provided by the law and
applied in the protection of the estate pending granting letter of representation.
We shall learn about each mechanism, rationale and effect in the law of
succession.
9.1 Objectives
 Acquired basic knowledge of concepts receiver pending

grant, executor of his own wrong, etc.
 Acquainted with knowledge and skills to argue and discuss
the reasons behind protection of estate of deceased person
pending the grant.
124
 Acquainted with ability to describe and analyse the

circumstances under which intermeddling occurs and justified
by the law.
 Developed competency to understand and determine locus
stand for application of appointment of receiver pending
grant.
 Acquainted with knowledge and skills to explain and apply on
the modus operandi for lawful protection of deceased estate
pending the grants of representation.
 Developed the ability to inquire and come up with the
liabilities and rights of the receiver pending the grants of
representation.
9.2 Appointment of receiver pending grant
Section 10 of the Probate and administration of estate Act153 provides that where
any person dies leaving property within Tanzania, the court may to be a receiver
of such property pending a grant of probate or letters of administration.
9.2.1 Who can apply for appointment of receiver pending

grant?
The law provides that either of the following people may apply for appointment
of receiver:-
(i) the Administrator-General

(ii) any person claiming to be interested in such property,
153
[CAP 352 RE 2002]
125
(iii) having the custody or control thereof at the time of the death of the
deceased,
(iv) being at such time an attorney of the deceased
(v) such other person as the court thinks fit
9.2.2 Mode of application for appointment of receiver

pending grant
Rule 24 (1) of the Probate Rules provides that an application for appointment of
a receiver pending the grant shall be made by chamber summons supported by
an affidavit. However an affidavit made under this rule shall be in the form
prescribed in Form 6 set out in the First Schedule. An order appointing a receiver
shall be in the form prescribed in Form 7 set out in the First Schedule.154
9.2.3 Ground for appointment of receiver pending grant
The law also provides that appointment of receiver can be done when that there
is danger that such property may be wasted. Hence receiver is appointed when
the court considers that the property may be wasted pending the prior grant of
the probate or letter of administration.
9.2.4 Immunity of appointed receiver pending grant
The law also protects receiver from being sued for things done in relation powers
granted to him or things done by him in relation to the protection of the estate
pending the grant of either letter of administration or probate.
154
Rule 24 (2) and (3) of the Probate Rules of 1963
126
Section 14 of the Probate and Administration of Estate Act 155 provides that no
suit shall be brought against a receiver appointed in relation to anything done or
intended to be done by him in respect of the property of the deceased in
exercise or intended exercise of the powers vested in him. This is protection of
receiver from the suit.
Nevertheless the same provision does not take away the protection of estate
when the receiver is doing accordingly. This provides that any person aggrieved
by anything so done, or intended to be done, may apply to the court for
directions in the matter, and the court may make such order as is just.
Hence if a person is aggrieved by the actions and omissions of the receiver

appointed can apply to the court for the directions against such negligence,
misconduct or misapplication of the receiver in relation to the protection of
estate of the deceased person pending the grants of representation.
9.2.5 Refund of costs of receiver pending grant
Moreover, section 15 of the Probate and administration of estate Act provides for
lien of the receiver if at all he or she has incurred costs and expenses at the time
of discharging his or her duties.
The section provides that a receiver appointed protection of the estate of

deceased person prior grants of representation shall have a lien upon the
property entrusted to him for all costs and expenses properly incurred by him in
the exercise of his duties as such receiver.
155
[CAP 352 RE 2002]
127
9.3Executor of his own wrong

An executor de son tort (executor of his own wrong) is a person who
intermeddles in the estate without having obtained a grant. An executor de son
tort derives from the fact that a creditor who deals with someone who appears
to be an executor is entitled to rely on this fact and hold the intermeddler liable
as if they were the executor this comes from the days when the registration of
grants was not easily done or checked.
Section 16 of the Probate and Administration of Estate Act provide the protection
mechanism of the estate of the deceased person before the grants of the
representation through prohibition of intermeddling of the deceased person
estate while there are no executor or administrator appointed by the court.
9.3.1 Executor of his own wrong defined
The law provides that a person who intermeddles with the estate of the
deceased or does any other act which belongs to the office of executor, while
there is no rightful executor or administrator in existence, thereby makes himself
an executor of his own wrong.156
According to Namirimu v. Mulondo & 2 Others157 the court was of the view
that an intermeddler is person who assumes the authority of an executor
becomes an executor de son tort without lawful authority to do so pending the
grants of representation. Intermeddling includes assuming authority to
administer the estate of another when a person does not have such authority.
156
Michael Parkinson, An Introduction To Being An Executor, Mcfarlanes, 2014
157
(High Court Civil Suit No. 27 OF 2011) [2015] UGHCFD 48 (23 December 2014)
128
9.3.2 Illustrations of executor of his own wrong
The law define executor of his own wrong as a person who intermeddles with
the estate of the deceased, or does any other act which belongs to the office of
executor, while there is no rightful executor or administrator in existence. 158 The
following are illustrations which show executor of his own wrong:-
i. Juma uses or gives away or sells some of the gods of the deceased, or
takes them to satisfy his own debt or legacy or receives payment of the
debts of the deceased. He is an executor of his own wrong.
ii. Kyte, having been appointed agent by the deceased in his lifetime to
collect his debts and sell his goods, continues to do so after he has
become aware of his death. He is an executor of his own wrong in
respect of acts done after he has become aware of the death of the
deceased.
iii. James sues as executor of the deceased, not being such. He is an
executor of his own wrong.
9.3.3 Liability of executor of his own wrong
An executor in his own wrong shall be liable to the rightful executor or

administrator for the full value of the personal property of the deceased taken by
him and for all damages caused to the estate by his acts; and he shall not be
allowed to retain or deduct any part of such estate, except for funeral expenses
158
Jacob, Giles. A New Law-Dictionary, The Lawbook Exchange, Ltd., 2004
129
or debts of the deceased or other charges actually paid by him and which the
rightful executor or administrator might have been compelled to pay.159
Section 17 of the Probate and Administration of Estate Act160 provides such

liability. It prescribes that where a person has so acted as to become an executor
of his own wrong, he is answerable to the rightful executor or administrator, or
to any legatee or creditor of the deceased, to the extent of the assets which
have come into his hands, after deducting payments made to the rightful
executor or administrator, and payments made in due course of administration.
By the law proving the person who intermeddles with the estate of the deceased
person executor of his own wrong, it is indicated clearly that once the property
are squandered he or she will be accountable to the executor or administrator,
any legatee or creditor hence shall held liable for repayment of the misapplied
and intermeddled estate.
9.3.4 Intermeddling person becomes not executor of his

own wrong
The proviso of section 16 of the Probate and Administration of Estate Act

provides the circumstances under which a person who intermeddles estate of the
deceased person does not make an executor of his own wrong. These are:-
159
http://law.justia.com/codes/massachusetts/2009/PARTII/TITLEII/CHAPTER195/Sectio
n15.html
160
[CAP 352 RE 2002]
130
(a) Intermeddling with the goods of the deceased for the purpose of
preserving them or providing for his funeral or for the immediate
necessities of his family or property.
(b) Dealing in the ordinary course of business with goods of the deceased
received from another.
(c) Action by an administrative officer under section 14 of the Administrator-
General (Powers and Functions) Act.
(d) Action by a receiver appointed pending the grant.
9.4 Penalty for contempt

Section 13 of the Probate and Administration of Estate Act provides for the
penalty to the person who does not have lawful authority for estate of the
deceased person when he or she removes or attempts to remove any portion of
property from Tanzania but when there is already receiver appointed pending
the grant.
The section also provides penalty for any person who destroys, conceals, or
refuses to yield up the same to the receiver pending the grant without lawful
authority
The law provides for punishment of the contempt of the estate of deceased
person while there is receiver. Contempt of estate is an offence.161
Hence anyone who does so shall liable to a fine not exceeding five thousand
shillings or to imprisonment for a term not exceeding six months or to both such
fine and imprisonment.
161
Attorney General’s Guidance on Intermeddling in estates of deceased persons, 2014
131
9.5Order of sale
Section 11 of Probate Administration of Estate Act162 provides for order of the
court to sell the estate of the deceased person pending the grant of probate or
letter of administration. However this order is given upon the discretion of the
court.
Nevertheless the court cannot appoint suo mottu because the law provides that
the court may appoint upon the application. The law provides that any interested
person may apply for the order of sale of the deceased estate.
Henceforth if a person has no any interest in the estate of deceased person then
he or she cannot apply for the order of the court to sell estate of deceased
person.
Rule 25 (1) of the Probate Rules163 provides for manner of application for order
of sale of estate pending the grants of representation. The rule provides that an
application for an order of sale of any property shall be by chamber summons
supported by an affidavit setting out the reasons for making such application.
Order of sale of the court cannot be granted unless it is for the benefits of the
estate itself. When the court considers that if it appears that such sale will be
beneficial to the estate. This was seen in the case of Morgan v Thomas164
where the court held that this order is as long as such acts are done for the
benefit of the estate
162
[CAP 352 RE 2002]
163
1963
164
(1853) 8 Exch 303; 155 ER 1362
132
The order of sale shall be in the form prescribed in Form 8 set out in the First
Schedule.165
9.6 Summary
In above chapter we have learnt that death operates as an
opportunity for distant relatives and even strangers to help
themselves out of whatever is tangible estate has left behind. The
estate turns to be wild tree that everyone does whatever is possible
to gather some fruits. The law has jealously guarded all these
eventualities by providing number of protection. Section 10 of the
PAEA provides that appointment of receiver can be done when that
there is danger that such property may be wasted. Hence receiver is
appointed when the court considers that the property may be wasted
pending the prior grant of the probate or letter of administration.
Section 17 of the PAEA protects estate through providing that that
where a person has so acted as to become an executor of his own
wrong, he is answerable to the rightful executor or administrator, or
to any legatee or creditor of the deceased, to the extent of the assets
which have come into his hands, after deducting payments made to
the rightful executor or administrator, and payments made in due
course of administration. Section 11 of the PAEA provides for
application for an order of sale of any property shall be by chamber
summons supported by an affidavit setting out the reasons for
making such application. However the law provides that order of sale
165
Rule 25(2) of the Probate Rules, 1963
133
of the court cannot be granted unless it is for the benefits of the

estate itself. When the court considers that if it appears that such
sale will be beneficial to the estate. The order of sale shall be in the
form prescribed in Form 8 set out in the First Schedule.
9.7 Activities
(v) Receiver pending grant
(vi) Executor of his own wrong
(vii) Intermeddling
(viii) Conditional will
2. Illustrate the circumstances under which a person, who
intermeddles with estate of deceased person, becomes executor of
his own wrong.
3. Discuss locus stand of the persons who can apply for the
appointment of receiver pending the grant.
4. Describe with authorities the circumstances under which the order
of sale of deceased‟s estate can be granted pending the grant of
representation.
5. Explain with vivid examples circumstances which do not make
intermeddler of deceased‟s estate an executor of his own wrong.
9.8References
134
Probate Rules of 1963
Attorney General‟s Guidance on Intermeddling in estates of deceased

persons, 2014
D. Griffin, What are your responsibilities if you agree to be an executor?

de groots wills and estate lawyers, Taxation in Australia, May 2013
M. Parkinson, An Introduction to Being an Executor, Mcfarlanes, 2014
J. Giles. A New Law-Dictionary, The Lawbook Exchange, Ltd., 2004
A. Sutcliffe, Executor duties and renouncing the role, the gazette official
public record, 2016
http://law.justia.com/codes/massachusetts/2009/PARTII/TITLEII/CHAP
TER195/Section15.html
https://www.google.com/search?q=executor+of+his+own+wrong&ie=
utf-8&oe=utf-8&client=firefox-
b#q=intermeddling+estate+of+deceased%E2%80%99s


1995
135
CHAPTER TEN
GRANTS OF REPRESENTATION
10.0 Introduction
A grant of representation is a document granted under seal by the court who
gives authority to a named person (s) to deal with a deceased‟s person‟s estate.
A grant of probate is issued to an Executor who has been appointed under a Will.
With the permission of the deceased given, it allows the executor to carry out
the necessary transactions required to meet the specifications of the Will. If no
Will has been created and the intestacy Rules come into effect, the type of grant
issued is known as letters of administration. Various parties can apply for this
type of grant but there is an order of priority which determines to whom it will be
finally issued.
This chapter is made to provide knowledge and skills on grants of

representations. Hence by virtue of this chapter we shall learn the nature, types,
rationales and characteristics of the grant of representation and how they are
useful in the law of succession.
10.1 Objectives
 Acquired basic knowledge of concepts such as grant of

representation, probate, letter of administration and letter of
administration with will annexed.
 Acquainted with understanding of circumstances under each
136
grant may be granted.

 Acquainted with ability to explore the persons that can be
granted grants of representation and to what extent they can be
granted.
 Developed ability to argue on the powers and jurisdiction of the
court when granting the grants of representation.
 Expanded knowledge and skills to examine the special
circumstances under which the special grants of representation
may be granted.
 Developed skills to explore and examine the effects of the grants
of representation.
10.2 Grant of representation

A grant of representation gives legal permission to an executor or administrator
to deal with the assets and estate of the deceased. It is required in any instance
where land is to be transferred.166
The grant of Representation is the collective term for a grant of probate or a

grant of letters of administration and grant of letter of administration with will
annexed.167
A grant of Probate is a grant given to the executor or executrix, named in the

last Will of the deceased person. Whilst a grant of letters of administration is a
grant given to an administrator who is the next-of-kin where there is no Will, or
166
See http://www.franklins-sols.co.uk/site/for-individuals/wills-and-probate-
solicitors/grants-of-representation/ retrieved on 17th September 2016
167
See http://www.clic.org.hk/en/topics/probate/preliminary_issues/q1.shtml retrieved on
17th September 2016
137
where no executor has been appointed in the Will. Letter of administration with
will annexed is the grant to administrator when there is failure of executors.
10.3 Categories of Grants of Representation

There are a number of other types of Grant such as emergency Grants to protect
the Estate or Grants made where other relevant legal proceedings exist. The
three most common types of grants of representation are:
10.3.1 Grant of probate
When a person dies leaving a valid will and appointing an executor, a grant of
probate can be issued to the executor. The person's assets are dealt with by the
executor, according to the terms of the will. The deceased is said to have died
testate.
Probate may be granted only to an executor appointed by the will. The

appointment may be express or by necessary implication. Where several
executors are appointed, probate may be granted to them all simultaneously or
at different times. If an executor is appointed by the will for a limited purpose
only, probate shall not be granted to him except limited to that purpose.168
Where a written will has been lost or misplaced after the death of the testator, or
has been destroyed by wrong or accident and not by any act of the testator, if a
copy or draft of the will has been preserved, probate may be granted of such
copy of draft, until the original or a wills properly authenticated copy of it is
admitted to probate and if no such copy or draft has been preserved, probate
168
Section 24 of the Probate and Administration of Estate Act, CAP 352 RE 2002
138
may be granted of the contents of the will, if they can be established by

evidence, limited as aforesaid.169
Where a written will is in the possession of a person outside Tanzania, who has
refused or neglected to deliver it up, but a copy has been transmitted to the
executor, and it is necessary for the interests of the estate that probate should
be granted without waiting for the arrival of the original, probate may be granted
of the copy so transmitted, limited as aforesaid.170
Probate may be granted of the contents of an oral will, if they can be established
by evidence.171
Where, after probate has been granted, a codicil of the will is propounded,
probate may be granted of the codicil: Provided that where the codicil expressly
or impliedly revokes the appointment of any executors to whom probate has
been granted, such probate shall be revoked, and a new probate granted of the
will and codicil together.172
Where a will has been proved and deposited in a court of competent jurisdiction
situated outside Tanzania, and a properly authenticated copy of the will is
produced, probate may be granted of such copy or letters of administration
granted with a copy of such copy attached.173
10.3.2 Grant of letters of administration
169
Section 25 (1) of the Probate and Administration of Estate Act, CAP 352 RE 2002
170
Section 25 (2), ibid
171
172
173
Section 27, ibid
139
When a person dies without having made a valid will, they are said to have died
intestate. A grant of letters of administration issues to the person or persons who
were the nearest next of kin at the date of death.
Where the deceased has died intestate, letters of administration of his estate
may be granted to any person who, according to the rules for the distribution of
the estate of an intestate applicable in the case of such deceased, would be
entitled to the whole or any part of such deceased's estate.174
If person entitled to letters of administration in the case of an intestacy is absent

from Tanzania and no person equally entitled is willing to act, letters of
administration may be granted to a lawfully constituted attorney, ordinary
resident in Tanzania, of such person, limited until such person obtains letters of
administration himself and in the meantime to any purpose to which the
attorney's authority is limited.175
10.3.3 Grant of letters of administration with will

annexed
Letters of administration with the will annexed may be granted of the whole
estate or so much thereof as may be un-administered to such person or persons
as the court deems the fittest to administer the estate.176
174
175
176
Section 29, ibid
140
This grant letter of administration with will annexed may granted due to
occurrence of the failure of executors. The circumstances which amount to
failure of executor are as follow:-
(a) No executor is appointed by a will

(b) The executor or all the executors appointed by a will have renounced,
or are persons to whom probate may not be granted
(c) No executor survives the testator
(d) All the executors die before obtaining probate or before having
administered all the estate of the deceased
(e) The executors appointed by any will do not appear and take out
probate.
Not any person is given priority to grant of letter of administration with will
annexed. However the law provides priority of persons for the letter of
administration with will annexed. Such persons are recognised by the law. The
law provided that a prior right to such grant shall belong to the following persons
in the following order177:-
(i) a universal or residuary legatee

(ii) a personal representative of a deceased universal or residuary
legatee
(iii) such person or persons, being beneficiaries under the will, as would
have been entitled to a grant of letters of administration if the
deceased had died intestate
177
Proviso of section 29 of the Probate and Administration of Estate Act, CAP 352 RE
2002
141
(iv) a legatee having a beneficial interest

(v) a creditor of the deceased
Moreover a court shall not grant letters of administration with the will annexed in
respect of a will by which an executor is appointed, if the executor: -
(i) is living and his whereabouts are known

(ii) is a person to whom probate may be granted
(iii) has not renounced his office
Provided that unless and until a citation has been issued calling upon the
executor to accept or renounce his office and the executor has renounced or has
been deemed to have renounced his office.
Where any person, to whom letters of administration with will annexed, is absent
from Tanzania, letters of administration with the will annexed may be granted to
his lawfully constituted attorney ordinarily resident in Tanzania.178
10.3.4 Special grants
If the court decides to grant representation for special purpose, must do so for
that purpose. When there are exceptions to be made upon the grant, such
exception has to be given through the grant.
178
Section 31 of the Probate and Administration of Estate Act, CAP 352
142
10.3.4.1 Grant of letter of administration until prior

will
When no will of the deceased is forthcoming, but there is reason to believe that
there is a will in existence, letters of administration may be granted, limited until
the will or an authenticated copy thereof is produced.179
10.3.4.2 Grant of representation during minority

Where a minor would, but for his minority, be entitled to probate or letters of
administration, letters of administration with or without the will annexed may be
granted to the guardian of the person and property of the minor, or to such
person as the court thinks fit, limited until the minor comes of age and obtains a
grant to himself.180
However Where there are two or more minor executors or persons so entitled,
any grant made shall be limited until one or other of them shall obtain a grant.181
10.3.4.3 Grant of representation during insanity

Where a person of unsound mind would, but for his unsoundness of mind, be
entitled to probate or letters of administration, with or without the will annexed
may be granted to the person to whom the care of his estate has been
committed by a competent authority, or to such person as to the court seems fit,
for the use and benefit of the person of unsound mind, limited until he becomes
of sound mind and obtains a grant to himself.182
179
Section 35, ibid
180
181
182
Section 37, ibid
143
10.3.4.4 Pendente lite

Pending the determination of any proceedings touching the validity of the will of
a deceased person or for obtaining or revoking any probate or any grant of
letters of administration, the court may appoint an administrator of the estate of
such deceased person, who shall have all the rights and powers of a general
administrator other than the right of distributing such estate, and every such
administrator shall be subject to the immediate control of the court and shall act
under its direction.183
10.3.4.5 Grant of letter of administration for

preservation and collection of estate
In any case in which it appears necessary for preserving the property of a
deceased person, the court may grant, to any person whom it thinks fit, letters
of administration limited to the collection and preservation of the property of the
deceased, and giving discharges for debts due to his estate and to such other
acts other than the distribution of estates as the court shall think fit subject to
the directions of the court.184
10.3.4.6 Grant of representation for trust property

Where a person dies, leaving property of which he was the sole or surviving
trustee, or in which he had no beneficial interest on his own account, and leaves
no general representative, or one who is unable or unwilling to act as such,
183
184
Section 39, ibid
144
letters of administration, limited to such property, may be granted to the

beneficiary, or to some other person on his behalf.185
10.3.4.7 Grant of representation upon absence of

executor
Where any executor is absent from Tanzania, and there is no other executor
within Tanzania willing to act, letters of administration with the will annexed may
be granted to a lawfully constituted attorney, ordinarily resident within Tanzania,
of the absent executor, limited until the absent executor obtains probate for
himself, and in the meantime to any purpose to which the attorney's authority is
limited.186
10.4 Number of executors and administrator for grant

Probate or letters of administration shall not be granted to more than four
persons in respect of the same property, and letters of administration shall, if
there is a minority or if a life interest arises under the will or on an intestacy, be
granted either to a trust corporation, solely or jointly with an individual or to not
less than two individuals.187
Provided that in granting letters of administration the court may act on such
prima facie evidence, furnished by the applicant or any other person, as to
whether or not there is a minority or life interest.
185
Section 41, ibid
186
187
145
If there is only one personal representative but not being a trust corporation,
during the minority of a beneficiary or the subsistence of a life interest and until
the estate is fully administered, the court may, on the application of any person
interested or of the guardian, committee or receiver of any such person appoint
one or more personal representative in addition to the existing personal
representatives.188
10.5 Effects of grants of representation

10.5.1 Exception
Whenever the nature of the case requires that an exception be made, probate or
letters of administration with or without the will annexed shall be granted subject
to such exception.
Whenever a grant with exception of probate or letters of administration with or

without the will annexed has been made, further grant may be made of the part
of the estate so excepted.189
10.5.2 Lapse of time
When a limited grant has expired by lapse of time, or the happening of the
limited event or contingency on which it was and there is still some part of the
deceased's estate un-administered, letters of administration shall be granted to
those persons to whom original grants might have been made.190
188
189
Section 42 and 43, ibid
190
Section 47, ibid
146
10.5.3 Special purpose
Where the grant is made for a special purpose, for that purpose only, letters of
administration entitle the administrator to all rights belonging to the deceased as
if the administration had been granted at the moment after his death subject to
all such limitation and exceptions contained therein.191
Nevertheless letters of administration shall not render valid any intermediate acts
of the administrator tending to the diminution or damage of an intestate's estate.
10.5.4 Death of administrator or executor
Where probate or letters of administration have been granted to more than one
executor or administrator and one of them dies, the representation of the estate
administered shall, in the absence of any direction in the will or grant accrue to
the surviving executor or executors or administrator or administrators. 192
On the death of a sole or sole surviving executor who has proved the will or of a
sole or sole surviving administrator, letters of administration may be granted in
respect of that part of the estate not fully administered, and in granting such
letters of administration the court shall apply the same provisions as apply to
original grants.193
Provided that where one or more executors have proved the will or letters of
administration with the will annexed have been issued, the court may grant
191
192
Section 45, ibid
193
Section 46, ibid
147
letters of administration under this section without citing an executor who has
not proved the will.
10.6 Summary
In above chapter we have learnt that grant of representation gives
legal permission to an executor or administrator to deal with the
assets and estate of the deceased. It is required in any instance
where land is to be transferred. . A grant of probate is issued to an
executor who has been appointed under a Will. If no Will has been
created and the intestacy rules come into effect, the type of grant
issued is known as letters of administration. However where there is
failure of executor, the letter of administration with will annexed may
be granted by the court. Grants of representation may be granted in
special circumstances such as insanity, minority, absence personal
representative, pending litigation and others. The grant of
representation shall not be granted to more than four persons in
respect of the same property, and letters of administration shall, if
there is a minority or if a life interest arises under the will or on an
intestacy, be granted either to a trust corporation, solely or jointly
with an individual or to not less than two individuals. Whenever the
nature of the case requires that an exception be made, probate or
letters of administration with or without the will annexed shall be
granted subject to such exception. Upon death of sole executor or
administrator letters of administration may be granted in respect of
that part of the estate not fully administered, and in granting such
148
letters of administration the court shall apply the same provisions as

apply to original grants. When one of the executor or administrator
dies leaving other executor or administrator, the representation of the
estate administered shall, in the absence of any direction in the will or
grant accrue to the surviving executor or executors or administrator
or administrators.
10.7 Activities
i. Grant of representation
ii. Probate
iii. Pendente lite
iv. Letter of administration
v. Letter of administration with will annexed
2. Describe the circumstances under which letter of administration
with will annexed may be granted.
3. What is maximum number of executor or administrator to be
appointed for the same property of the deceased person? Why
such limitation of number of people?
4. What are special grants of representation? Describe their
purposes.
5. The law provided that a prior right to grant of letter of
administration with will annexed shall belong to the various
persons in the certain order. Describe such order of priority.
6. Discuss the effects of the following events to the grants of
representation.
149
i. Efflux ion of time

ii. Death of sole executor or administrator
iii. Death of one of the executors or administrators of the
same estate.
iv. Destruction or loss of Wills
10.8 References
http://www.franklins-sols.co.uk/site/for-individuals/wills-and-probate-
solicitors/grants-of-representation/ retrieved on 17th September
2016
http://www.clic.org.hk/en/topics/probate/preliminary_issues/q1.shtml
retrieved on 17th September 2016


150

1995
151
CHAPTER ELEVEN
APPLICATION FOR GRANTS OF REPRESENTATION
11.0 Introduction
Generally before application for grant of representation it is necessary to find out

whether the person who has passed away left a valid will. It may be necessary to
make enquiries with the deceased's friends and family and search through the
personal papers of the deceased. If a valid will has been executed by the
deceased then one would apply for either 'probate' or 'letters of administration
with the will annexed' but when there is no valid will or no will at all, one apply
for letter of administration after appointment by the clan meeting.194
This chapter is procedural skills oriented because it intends to impart knowledge

and skills on the application procedures and modes for the grants of
representation. It intends to enable dear readers to be able to understand how
grants of representation can be acquired and where they are acquired for the
purpose of administration of estate.
11.1 Objectives
 Acquired basic knowledge of concepts such as petition,

affidavit, chamber summons, consent etc.
194
http://www.supremecourt.vic.gov.au/home/forms+fees+and+services/wills+and+probate/ap
plying+for+a+grant+of+probate+or+administration/
152
 Acquainted with ability to explore the persons that can apply

for the grants of representation.
 Developed ability to understand the procedures for the
application of grants of representation under various
situations.
 Expanded knowledge and skills to examine requirements for
the application of the grants of representation.
 Developed skills to argue and solve procedural issues related
to the application for the grants of representation.
11.2 Requirement before application

It should be noted that probate or letters of administration shall not be granted
to any person who is a minor or of unsound mind. 195 Therefore minor or insane
executor or administrator cannot apply for grant of representation due to lack of
capacity to do so according to the law.
The first thing to do is check if there is a valid Will and if it names Executors. The
Executors are responsible for the correct administration of an estate. The
Executors apply for a Grant of Probate.
If there is not a Will or validly appointed Executors then the law sets out who
may apply to the Court as Administrators to obtain the legal authority to
administer the Estate.
195
Section 23 of Probate and Administration of Estate Act
153
The Administrators apply for a grant of letters of administration if there is no Will

or a Grant of Letters of Administration with Will annexed if there is a Will but
Executors have not been named or are not able to act.
11.3 Who may apply for grant of representation

Any person named as executor in the valid may apply for the grant of probate
when the testator died leaving valid will.
Also in case of intestacy, any person who, according to the rules for the
distribution of the estate of an intestate applicable in the case of such deceased,
would be entitled to the whole or any part of such deceased's estate may apply
for the grant of letter of administration.196
Where more than one person applies for letters of administration, it shall be in
the discretion of the court to make a grant to any one or more of them, and in
the exercise of its discretion the court shall take into account greater and
immediate interests in the deceased's estate in priority to lesser or more remote
interests.197
Where no such person applies, letters of administration may be granted to a

creditor of the deceased.198
Where it appears to the court to be necessary or convenient to appoint some

person to administer the estate or any part thereof other than the person who
under ordinary circumstances would be entitled to a grant of administration, the
196
197
198
154
court may, in its discretion, having regard to consanguinity, amount of interest,

the safety of the estate and probability that it will be properly administered,
appoint such person as it thinks fit to be administrator; and in every such case
letters of administration may be limited or not as the court thinks fit.199
11.4 Application for letter of administration

A petition for letters of administration shall be in the form prescribed in Forms 26
or 27 set out in the First Schedule, whichever is appropriate. 200 This petition shall
be accompanied by the following documents:-
i. a certificate of death of the deceased signed by a competent authority

ii. an affidavit as to the deceased's domicile
iii. an administrator's oath
iv. an administration bond
v. a certificate as to the financial position of the sureties
vi. consent of the heirs
vii. an affidavit
11.5 Application for probate

11.5.1 Petition for probate when there is written Will
A petition for grant of probate shall be in the appropriate form prescribed in

Forms 18, 20, 21 and 22 set out in the First Schedule.201 This petition shall be
accompanied by the following documents: -
199
Section 33 (4), op-cit
200
Rule 39 and 40 of the Probate Rules of 1963
155
i. The last will of the deceased and all codicils thereto and, when
necessary, a translation thereof
ii. A certificate of death of the deceased signed by a competent authority
iii. An affidavit as to the deceased's domicile at the time of his death
iv. The executor's oath.
11.5.2 Petition for probate when there is oral will
Where a petitioner applies for grant of probate of an oral will he shall file with his
petition the following documents in addition to the documents required when
applying for probate to be filed.202 Those documents are: -
(a) An affidavit by a person having personal knowledge of the terms of

the will setting out such terms and the circumstances under which he became
aware of the same; and
(b) Consents in writing to the application for grant from the persons
who, if the testator had died intestate, would have been entitled to a share in
the estate.
The petition for grant shall give all the facts and describe all the circumstances
which may raise a presumption that the testator was a person entitled in law to
make an oral will.203
201
Rule 33 of the Probate Rules of 1963
202
Rule 35, ibid
203
Rule 35 (2), op-cit
156
The court may require the petitioner to produce further evidence by affidavit or
otherwise for the purpose of satisfying itself of the existence of the will, its terms
or the circumstances under which it were made.204
11.5.3 Petition for probate when will is destroyed or lost
Where a petitioner applies for grant of probate of a will which has been lost,
misplaced or destroyed and of which no copy or draft is available he shall file
with his petition the following documents in addition to the documents required
to be filed.205 These additional documents are:-
i. An affidavit as to the due execution of the original will by:-

a. one of the witnesses who attested the original will or,
b. if no such witness is conveniently available, from any other person
who was present when the will was made or who can testify as to
the facts which may raise a presumption in favour of due execution
ii. An affidavit of the contents of the will from any person having personal
knowledge of such contents
iii. An affidavit proving the existence of the will after the death of the
testator or, where the will has been destroyed, the circumstances of
such destruction
iv. Consents in writing to the application for grant from the persons who, if
the testator had died intestate, would have been entitled to a share in
the estate.
204
Rule 35 (3), ibid
205
Rule 36 (1), ibid
157
The court may require the petitioner to produce further evidence by affidavit or
otherwise for the purposes of satisfying itself as to the existence of the will, its
contents or the circumstances in which it was lost, misplaced or destroyed. 206
11.5.4 Petition for probate of copy or draft of will
Where a petitioner applies grant of probate of a copy or draft of a will he shall

file with his petition in addition to the documents required to be filed an affidavit
or affidavits which shows that the copy produced is an accurate copy of the
original will and proves the existence of the will after the death of the testator or,
where the will has been destroyed, the circumstances of such destruction or
where the original is in possession of a person outside Tanzania, that such
person has refused or neglected to deliver it up.207
The court may require the petitioner to produce further evidence on affidavit or
otherwise for the purpose of satisfying itself as to the existence of the original
Will, the accuracy of the copy or the draft or the circumstances of loss or
destruction.208
11.6 Application by Trust Corporation

Where a trust corporation209, applies for a grant, all petitions, applications, oaths,
affidavits and other documents whatsoever required to be executed or sworn
under the probate rules by a proposed executor or administrator may be
206
Rule 36 (2), op-cit
207
Rule 37 (1), op-cit
208
Rule 37 (2), ibid
209
other than the Public Trustee
158
executed or sworn by any officer of the corporation authorised for the purpose
by the corporation and such person shall lodge into the court, a copy of the
resolution of the corporation so authorizing him.210
A petition for a grant by a trust corporation shall be in the form prescribed in

Form 28 set out in the First Schedule and shall contain an averment that the
corporation is a trust corporation within the meaning of Probate and
Administration of estate Act, CAP 352 RE 2002.211
Where the Public Trustee applies for a grant he shall state in the body of the
petition that the application is made by him as the Public Trustee.212
11.7 Application by attorneys

An application for grant of letters of administration by a lawfully constituted
attorney of a person residing outside Tanzania shall be in the form prescribed in
Form 29, 30 or Form 30A set out in the First Schedule.213
The attorney shall file with his petition for grant the power of attorney
constituting him as such attorney and unless such power of attorney can be
presumed to have been executed and authenticated 214, the court may require
further proof of its due execution.215
210
Rule 42 (1), op-cit
211
Rule 42 (2), ibid
212
Rule 42 (3), op-cit
213
Rule 43, ibid
214
under section 94 of the Evidence Act, CAP 6 RE 2002
215
Rule 43, op-cit
159
11.8 Application by guardian

A petition for grant of letters of administration with or without the will annexed
by a guardian of a minor or some other person on behalf of a minor216 shall be in
the form prescribed in Form 31 set out in the First Schedule. 217
The petition shall state in what manner, if any, the petitioner is related to such
minor and shall be accompanied by a certificate as to the date of the birth of the
minor issued by a competent authority, or, where such certificate is not
available, by an affidavit from a person able to depose to the date of the birth of
the minor.218
A petition for grant of letters of administration with or without the will annexed
for the use and benefit of a person of unsound mind 219 shall be in the form
prescribed in Form 32 set out in the First Schedule.
The petition shall state in what manner, if any, the petitioner is related to such
person and shall be accompanied by the following document220:-
i. A certificate as to his mental condition by the medical officer in charge

of such hospital, or, in any other case, an affidavit as to the mental
condition of such person from a medical practitioner under whose care
and treatment such person is.221
216
under section 36 of the Probate and Administration of Estate Act, Cap 352 RE 2002
217
Rule 44, op-cit
218
Rule 44, op-cit
219
Under section 37 of the Probate and Administration of Estate Act, CAP 352 RE 2002
220
Rule 45, op-cit
221
Where the person of unsound mind has been committed to a mental hospital under the
provision of the Mental Diseases Act
160
ii. Where the care of the estate of the person of unsound mind has been
committed to the petitioner by a competent authority, a certified copy
of the order of such authority.
11.9 Application after death of sole executor or administrator

A petition222 for grant of letters of administration in respect of un-administered
estate upon the death of a sole or sole surviving executor or a sole or sole
surviving administrator shall be in the form prescribed in Form 33 set out in the
First Schedule
Such petition shall describe and state the value of the estate remaining un-
administered and shall be supported by a certificate of the death or an affidavit
as to the death of the executor or the administrator and by an affidavit stating
that such executor or administrator was the sole or sole surviving executor or
administrator, as the case may be.223
11.10 Application upon expiry of limited grant

A petition for the grant of letters of administration upon the expiry of a limited
grant shall be in the form prescribed in Form 34 set out in the First Schedule.224
This petition shall contain a statement showing that the grant originally made
has expired and shall describe and state the value of the portion of the estate
remaining un-administered.
222
223
Rule 46, op-cit
224
Rule 47, ibid
161
11.11 Application by creditor

Where a creditor of the deceased applies for a grant of letters of
administration225 the petition shall state the amount of the debt and how the
same arose.
11.12 Application pending determination of proceedings

An application for appointment of an administrator226 pending the determination
of any proceedings shall be by chamber summons supported by an affidavit in
the form prescribed in Form 35 set out in the First Schedule.
The application shall sets out the particulars of the proceedings, the gross value
and nature of the estate of the deceased, the date of the death of the deceased
and a statement as to the fitness of the proposed administrator.227
The application shall be accompanied by the proposed administrator's oath in the

form prescribed in Form 36 set out in the First Schedule and administration bond
in the form prescribed in Form 37 set out in the First Schedule. 228
11.13 Application for collection and preservation of property

Where an application for letters of administration229 is made by a person who has
already lodged in the Court a petition for a grant in respect of the same estate,
such application shall be made by chamber summons supported by an affidavit in
225
Under section 33(3) of the Probate and Administration of Estate Act, CAP 352 RE
2002
226
Under section 38, ibid
227
Rule 50, op-cit
228
Ibid
229
under section 39 of the Probate and Administration of Estate Act, CAP 352 RE 2002
162
the form prescribed in Form 38 set out in the First Schedule setting out grounds
for such application.230
In any other case an application for letters of administration under section 39 of

the Act shall be by way of a petition setting out, in addition to the particulars
required to be given in a petition for a grant of letters of administration under
section 33 of the Act the grounds for such application.231
A petition shall be in the form prescribed in Form 39 set out in the First Schedule
and shall, subject to the provisions of the Probate Rules, be accompanied by the
following documents232:-
a. certificate of the death of the deceased233

b. affidavit as to the deceased's domicile
c. the proposed administrator's oath234
d. administration bond235
11.14 Application for a suit

An application for letters of administration for the purpose of becoming or being
made a party to a suit236 shall be by way of chamber summons supported by an
affidavit.
230
Rule 51 (1), op-cit
231
Rule 51 (2), op-cit
232
Rule 51 (3), ibid
233
subject to the provisions of rule 63,
234
in the form prescribed in Form 40 set out in the First Schedule
235
In the form prescribed in Form 41 set out in the First Schedule.
236
under section 40 of the Probate and Administration of Estate Act, CAP 352 RE 2002
163
The application shall sets out full particulars of the probate or letters of
administration, if any, originally granted in respect of the same estate and the
grounds upon which such application is made.237
11.15 Application for trust property

An application for letters of administration limited to trust property under section
41 of the Act shall be made by petition in the form prescribed in Form 42 set out
in the First Schedule.238
Such petition shall state:-
i. The date and place of the deceased's death,

ii. Whether the deceased died testate or intestate and, if testate, the
names and addresses of the executors named in the will or if intestate,
the name and addresses of the relatives,
iii. Whether a grant of probate of the will or letters of administration of the
estate of the deceased has been made to or applied for by any person
and if so,
iv. The particulars of the grant or application and the name and address of
the grantee or applicant,
v. Description and value of the trust property,
vi. Description of the trusts to which the property is subject
vii. Reasons why a grant of letters of administration limited only to the
trust property is required.
237
Rule 52, op-cit
238
Rule 53, ibid
164
A petition shall be accompanied by the following documents:–
i. a certificate as to the death of the deceased239, except where such

certificate is already in possession of the court
ii. The last will and testament of the deceased except where such will and
testament is already in possession of the court
iii. an administration oath240
iv. An administration bond241
v. a certificate as to the financial position of the sureties, if any
vi. The consent of all the beneficiaries under the trust 242 except where the
petitioner is the sole or the sole surviving beneficiary.
11.16 Summary
In above chapter we have learnt that the grant of representation is a
court issued document proving the executors‟ or administrator‟s
entitlement to deal with the Deceased‟s Estate. Hence, this document
must be obtained before the Executors can start closing accounts and
liquidating assets. This document cannot be obtained unless such
executor or administrator applies for that grant. The grant is issued by
the court upon consideration of the application. The application for
grant of representation required will depend on the circumstances of
the Deceased‟s Estate. If there is a valid Will, an application will be
made for a Grant of Probate. If there is no Will, a Grant of
239
Subject to the provisions of rule 63,
240
241
242
subject to the provisions of rules 71 and 72 of the Probate Rules,
165
Administration is obtained, and where there is only a partially valid Will

or the Will only deals with part of the Estate, a Grant of Administration
with Will Annexed is obtained. The applications for the grants are
made by various ways depending on the nature of the grant of
representation. Variation of grants of representation leads to variation
of the applications. However the probate rules have laid out the
manner of application and set out various forms which can be used
during application. These forms are set out in the Schedule to the
Probate Rules of 1963.
11.17 Activities
i. Petition
ii. Affidavit
iii. Administrator‟ oath
iv. Administrator‟s bond
2. Describe the checklist for application for grant of representation for
a trust property.
3. Discuss necessary documents required for the application for
probate when the will has been lost or destroyed or misplaced.
4. Compare and contrast the applications for probate and letters of
administration.
5. Discuss the persons that may apply for the grant of representation.
166
11.18 References
http://www.supremecourt.vic.gov.au/home/forms+fees+and+services/
wills+and+probate/applying+for+a+grant+of+probate+or+administrat
ion/




1995
167
CHAPTER TWELVE
NON-CONTENTIOUS AND CONTENTIOUS PROCEEDINGS
12.0 Introduction
Once the testator dies, the executor must file the original will along with a
probate petition in the probate court to start estate proceedings. If no one else
with an interest in the estate the testator's heirs or specific beneficiaries named
in his will, for example challenges the appointment as executor, executor will
receive authority to act as executor from the court, renunciation etc.
Therefore the chapter provides knowledge on what are contentious and non-
contentious proceedings in the law of succession. We shall learn the contentious
proceeding and their reasons and handling and non-contentious as well
12.1 Objectives
 Acquired basic knowledge of concepts such as contentious and

non-contentious proceedings, caveats, citations, renunciations,
objections etc.
 Acquainted with ability to identify and examine the contentious
proceedings in the law of succession.
 Acquainted with ability to identify and explore non-contentious
proceedings in the succession matters.
 Developed ability to discuss the existence of various proceedings
168
and their essence in law of succession.
12.2 Non-contentious Proceedings

They are proceedings which do not involve opposition between contending
parties of certain succession issue at the court.243 Contentious proceedings refer
to proceedings in a court to deal with matters not in controversy between
parties. A non-contentious proceeding is voluntary proceeding.
12.2.1 Citation
Citation occurs both in contentious and non-contentious proceedings. In non-

contentious proceedings, citations serve the purpose of expediency of issuance
of grant of representation. However in the case of Re Machauffee244 the court
held that where the estate is insolvent the court may dispense with the citation.
12.2.1.1 Meaning of citation

Citation is a document issued by the probate registry whereby the person issuing
the document calls upon the person cited to provide reasons why a particular
step should not be taken.
The person that calls another to give reasons is called Citor while the person
who is called to give reasons is called Citee.
Upon being served with citation, cite is required to appear by filing the
prescribed appearance for and thereafter serving the same.
243
https://en.oxforddictionaries.com/definition/non-contentious. Retrieved on 23rd
September 2016
244
[1969] EA 424
169
12.2.1.2 Service of citation

Service of any citation these Rules or by the court to be served on any party
shall be by personal service: Provided that the court may in any case grant leave
for substituted service in such manner as it may direct.245
12.2.1.3 Types of citation

There are various types of citations depending on the functions and to the
persons addressed. Some of them are as follows:-
(a) General citation
Where an application for grant of probate or letters of administration with or

without the will annexed is required to be made by way of petition, on receipt of
such petition and such other documents as are required to be filed therewith the
Registrar shall submit the same to a Judge in chambers, who, if he is satisfied
that the application and the supporting documents are in order and no further
evidence or proof is required, shall endorse on the record an order directing the
Registrar to publish a general citation.246
Provided that where the application is made for grant of pendente lite and
collection and preservation of estate pending the grant, the Judge may dispense
with General citation and may order the letters of administration applied for be
granted forthwith.247
A general citation shall be in the form prescribed in Form 58 set out in the First
Schedule and shall be exhibited in some conspicuous part of the court house and
245
246
247
170
published in the Gazette and such other newspaper or periodical (if any) as the
Judge may direct.248
Where a general citation is required to be publish by these Rules or by the court

no probate of a will or letters of administration shall be granted until after the
expiration of fourteen clear days from the date of the last publication of such
citation and unless no caveat or objection has been lodged during that period.249
(b) Citation to accept or refuse grant
This is type of citation used where a person who has an entitlement to grant
prior to that of citor, delays or declines to take a grant but at the same time fails
to renounce his or her right to grant so as to enable persons with inferior right to
take out a grant in his or her place.
(c) Citation to take out probate
This occurs where an executor has intermeddled with estate of deceased person
without taking grant. Any interested person may cite him or her to provide
reasons as to why he should not be compelled to take out grant.
The citation should be made at any time. However citation should not be issued
while the proceedings as to the validity of the will pending.
(d) Citation to propound the will
248
249
171
Where interested person under will or intestacy rules believes that a will yet to
be proved is invalid, he or she may cite the executors and beneficiaries of the
will to propound it.
12.2.2 Consent
Consent of beneficiaries during application for grant of representation shall be in

the form prescribed in Form 56 set out in the First Schedule and shall be signed
by the person or persons giving the same and attested by any person before
whom an affidavit may be sworn.250
12.2.2.1 Requirement of consent

Where an application for the grant of letters of administration is made on an
intestacy the petition shall, except where the court otherwise orders, be
supported by written consent of all those persons who, according to the rules for
the distribution of the estate of an intestate applicable in the case of the
deceased, would be entitled to the whole or part of his estate. 251
12.2.2.2 Persons whose consent is required

Where the deceased died testate and an application is made for the grant of
letters of administration with the will annexed, written consent shall, unless the
court otherwise orders.252
Consent of these persons shall be required such as the universal or residuary

legatee and such person or persons, being beneficiaries under the will, as would
250
Rule 71 (4) of the Probate Rules of 1963
251
252
172
have been entitled to the whole or part of the testator's estate had the testator
died intestate.253
Where a person whose consent is required is an infant or a person of unsound

mind consent may be given on his behalf by his guardian.254
12.2.2.3 Absence of consent

Where a person whose consent is required refuses to give such consent, or if
such consent cannot be obtained without undue delay or expense, the petitioner
shall, together with his petition for grant, file an affidavit giving the full name
and address of the person whose consent is not available where such name and
address are known and giving the reasons why such consent has not been
produced.255
Where such affidavit is filed, the court may make an order either dispensing with
such consent or requiring a citation in the form prescribed in Form 57 set out in
the First Schedule to be served upon the person whose consent is not
available.256
Where the court makes an order of requiring service of a citation the Registrar
shall call upon the petitioner to pay the prescribed fees for such citation and
service and upon receipt of such fees shall cause the citation to be served. 257
253
254
255
256
257
173
The Court may at any time and for sufficient reason shown vary, alter or rescind
any order made under this rule or make such order in lieu of an order requiring
personal service of citation as it may deem fit.258
12.2.3 Renunciation of executorship
Renunciation means giving up, or renouncing, your right to something. It is not

uncommon for someone named in a last will and testament to renounce rights or
property given to him in the will.
12.2.3.1 Renunciation defined

A renunciation is a legal declaration that states the person named in the will as
executor will not act as executor for the estate. Reasons might range from
financial to personal. State laws are set up to allow this. No one can be forced by
the terms of a will to do something they do not want to do.
The renunciation may be made constructively or expressly by the person

renouncing, and when made shall preclude him from ever thereafter applying for
probate of the will appointing him executor.
12.2.3.2 Requirements of renunciation

It is only possible to renounce if executors have not intermeddled259 in the
deceased‟s estate. This is why it is important if executors do not wish to extract
258
259
Intermeddling is carrying out the sort of tasks that an executor may do, such as letting
a bank know of the death. If there are two executors, and one is given a specific legacy,
and takes possession of that legacy without consent of the co-executor, this will amount
to an act of administration.
174
a grant not to take any steps in relation to the estate. It should be noted that
arranging a funeral is not intermeddling.
This requirement was cemented in the case of Kothari v. Qureshi and

Another260 where the court stated that an executor who has intermeddled in
the estate of deceased person cannot renounce the executorship.
A renunciation must be absolute, and will take effect from the time that it is
signed; though it remains possible to withdraw it at any time prior to it being
lodged at the probate registry.
Once it has been lodged together with the original will, or if this is not available,
a verified copy, it can only be retracted with the permission of a court.
12.2.3.3 Right to renounce

A person who is entitled to probate may expressly renounce his right to such
grant orally on the hearing of any application or in writing signed by the person
so renouncing and attested by any person before whom an affidavit may be
sworn.261
12.2.3.4 Citation to renounce

Any person having or claiming any interest in the estate of a deceased person or
any creditor of a deceased person may cause to be issued a citation directed to
the executor or executors appointed by the deceased's will calling upon him or
them to accept or renounce his or their executorship.262
260
[1967] EA 564
261
262
175
A citation to renounce shall be in the form prescribed in Form 11 set out in the
First Schedule and shall be served upon the persons named in the citation.263
Any person so cited may enter an appearance to the citation. An appearance

shall be in the form prescribed in Form 12 set out in the First Schedule and a
copy thereof shall be served on the persons who applied for the citation.264
If he makes a default in appearance thereto, he shall be deemed to have

renounced his executorship. Where a person cited makes default in appearance
within the time limited for such appearance the Registrar shall endorse on the
court record a certificate to that effect.265
If, having appeared, he does not proceed to apply for probate, the person so
citing may apply for an order that the person cited, unless he applies for and
obtains probate within a time limited by the order, shall be deemed to have
renounced his right thereto, and an order may be made accordingly.266
Where a person cited has entered an appearance but has failed to apply for
probate within the period of thirty days from the date of his appearance, the
citor may apply to the court by chamber summons supported by an affidavit for
an order fixing the time within which the person cited shall apply for grant of
probate and Such order shall be in the form prescribed in Form 13 set out in the
First Schedule.267
263
264
265
266
267
176
12.2.3.5 Service
Service of any citation to renounce required by these Probate Rules or by the
court to be served on any party shall be by personal service: Provided that the
court may in any case grant leave for substituted service in such manner as it
may direct.268
12.2.3.6 Effect of renunciation

The renunciation, whether made expressly or constructively, shall preclude the
person so renouncing from applying thereafter for probate.
Nevertheless, the court may at any time allow the person so renouncing to
withdraw his renunciation for the purpose of taking a grant.
This is possible if it is shown that such withdrawal is for the benefit of the estate
or persons interested therein.269
The renunciation does not confer the right to a grant of probate on another
person. If other executors have been named in the will, the remaining executors
can apply for probate as long as the will does not specify a particular number of
executors.
If only one executor was named and is renouncing, an application will need to be
made to the court to appoint an administrator. Most renunciations are made at
the same time as an application for a grant by someone else.
12.2.4 Rectification of errors in grants of representation
268
269
177
Errors in names and descriptions, or in setting forth the time and place of the
deceased's death, or the purpose in a limited grant, may be rectified by the
court, and the grant of probate or letters of administration may be altered and
amended accordingly.270
Also, if a codicil is discovered after the grant of representation, the same may be
added to the grant and grant accordingly altered and amended.
An application for rectification of a grant may be made by chamber summons

supported by an affidavit setting out the grounds for such application.271 An
order for rectification shall be in the form prescribed in Form 14 set out in the
First Schedule.272
12.3 Contentious proceedings

According to section 2 of the Probate and Administration of estate Act 273,
contentious proceedings means proceedings which involve the appearance of
any person to oppose the application for the grant of probate or letters of
administration.
They are succession proceedings which needs determination of the court for
their resolution. Contentious proceedings relates to succession legal matters that
270
271
272
273
[CAP 352 RE 2002]
178
take place between two or more parties, such as a court hearing or a tribunal
hearing to resolve a dispute.274
Contentious proceeding refers to proceeding of a court to deal with matters in

controversy between parties. A contentious proceeding is in contradistinction to
voluntary proceeding.275
12.3.1 Revocation of grants of representation
Revocation of grant of representation means the cancellation or withdrawal of

the grant of probate or letter of administration issued to an executor or
administrator. This can be done upon application of interested parties to the
estate of deceased persons.
12.3.1.1 Application for revocation

An application for revocation or annulment of a grant shall be made by chamber
summons supported by an affidavit setting out the grounds for such
application.276
Notice of an application made and a copy of the affidavit filed in support thereof
shall be served on the person or persons to whom the grant was made. 277
274
http://www.ten-percent.co.uk/what-is-the-difference-between-contentious-and-non-
contentious-legal-work/. Retrieved on 23rd September 2016
275
http://definitions.uslegal.com/c/contentious-jurisdiction/. Retrieved on 23rd
September 2016
276
277
179
12.3.1.2 Reasons for revocation

The grant of probate and letters of administration may be revoked or annulled
for any of the following reasons278:-
(a) That the proceedings to obtain the grant were defective in substance
(b) That the grant was obtained fraudulently by making a false suggestion,
or by concealing from the court something material to the case.
(c) That the grant was obtained by means of an untrue allegation of a fact
essential in point of law to justify the grant, though such allegation was
made in ignorance or inadvertently.
(d) That the grant has become useless and inoperative.
(e) That the person to whom the grant was made has wilfully and without
reasonable cause omitted to exhibit an inventory or account.
12.3.1.3 Order of revocation

An order revoking or annulling a grant shall be in the form prescribed in Form 15
set out in the First Schedule.279
When the court has made an order revoking or annulling a grant the Registrar
shall cause a notice in the form prescribed in Form 16 set out in the First
Schedule to be served, in such manner as he may think fit, upon the person or
persons to whom the grant was made requiring him or them forthwith to deliver
up the probate or letters of administration to him.280
278
279
280
180
12.3.1.4 Effects of revocation of grants

Where any probate is, or letters of administration, revoked, all payments bona
fide made to any executor or administrator under such probate or are
administration before the revocation thereof shall, notwithstanding such
revocation, be a legal discharge to the person making the same.281
The executor or administrator who shall have acted under any such revoked
probate or administration may retain and reimburse himself out of the assets of
the deceased in respect of any payments made by him which the person to
whom probate or letters of administration shall be afterwards granted might
have lawfully made.282
When a grant of probate or letters of administration is revoked under this Act,

the person to whom the grant was made shall forthwith deliver up the probate or
letters to the court which made the grant.283
If such person willfully and without sufficient cause omits so to deliver up the
probate or letters, he commits an offence and on conviction is liable to a fine not
exceeding two thousand shillings or to imprisonment for a term not exceeding
three months, or to both such fine and imprisonment.284
12.3.2 Caveats
Caveat a legal notice to a court or public officer to suspend a certain proceeding

until the caveator is given a hearing. Hence a caveat is a notice, especially in a
281
282
283
284
181
probate, that certain actions may not be taken without informing the person who
gave the notice285.
A caveat shall be in the form prescribed in Form 62 set out in the First Schedule
and shall be attested by a person before whom an affidavit may be sworn.
12.3.2.1 Locus standi

Any person having or asserting an interest in the estate of the deceased may
enter a caveat against the probate grant or letters of administration.286
12.3.2.2 Where to enter

A caveat may be entered with the High Court or, where the deceased at the time
of his death had his fixed place of abode within an area for which a District
Delegate has been appointed or application for probate or letters of
administration has been made to a District Delegate, with that District
Delegate.287
Immediately on a caveat being entered with a District Delegate he shall send a

copy thereof to the High Court.288
Where a caveat lodged with the High Court discloses that the deceased at the
time of his death, has his fixed place of abode within an area for which a District
285
See https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-
8#q=caveat. Retrieved on 22nd September 2016
286
287
288
182
Delegate is appointed, the Registrar shall send a copy thereof to that District
Delegate.289
12.3.2.3 Service
Service of any caveat of the court required by these probate Rules or by the
court to be served on any party shall be by personal service: Provided that the
court may in any case grant leave for substituted service in such manner as it
may direct.290
12.3.2.4 Effects of caveats

A caveat shall remain in force for four months after the date upon which it was
lodged (unless sooner withdrawn) but may be renewed.291
No proceedings shall be taken on a petition for probate or letters of

administration after a caveat against the grant or a copy thereof has been
entered with a court to which application has been made so long as the caveat
remains in force.292
Where a caveat has been entered, any person who petitions for a grant of
probate or letters of administration shall apply for the issue of a citation to the
caveator calling upon him to state, within such time as may be specified therein,
whether he supports the grant of probate or letters of administration to the
289
290
291
292
183
petitioner and, if he does not, requiring him to enter an appearance to the

petition.293
An application for a citation to a caveator shall be in writing in the form

prescribed in Form 63 set out in the First Schedule.294
Where a petitioner fails to make an application of citation within thirty days after
the petition or the caveat has been lodged, whatever is the later, the Registrar
shall cause a notice in the form prescribed in Form 63A set out in the First
Schedule to be served upon the petitioner requiring him to lodge such application
within a further period of twenty-one days from the date of the service of the
notice.295
Where a caveator enters an appearance the court shall proceed with the petition
accordingly.296
Where a caveator gives notice that he supports the petition, or where he fails to
give notice to that effect and fails to enter an appearance to the petition within
the time limited therefor, the caveat shall be deemed to have been withdrawn
and no further caveat may be entered by or on behalf of the caveator.297
12.3.3 Objections to grants of representation
293
294
295
Rule 82 (2A) of the Probate Rules of 1963
296
297
184
Most of the disputes, taking the form of objections and objection proceedings are
brought by persons who would like to be involved in the administration of the
estate.
12.3.3.1 Grounds of objection

Even though the law has not prescribed the grounds upon which the objections
may be made and accepted by the court issuing the grant of representation.
However some of the reasons which are commonly used are:-
Where the will intended to be used to grant probate to the executor is invalid in
the eyes of the law, objections may be posed so as to stop the executor to deal
with the administration of estate by the using the will which is invalid.
Where there is discovery of will while the administrator has applied for the grant
of letter of administration, the objections may be posed for the court to avoid the
grant of letter of administration due to the fact the deceased person did not die
intestate.
When the objector is entitled to grant of the representation but another person
has applied for the grant of representation. The objector challenges the grant
because he or she is only one entitled to the grant and not the person who has
applied. This may be according to the customary laws or other laws applicable in
the administration of estate.
Where the proposed administrator or executor is incompetent for the tasks,

interested person may object the grant of representation to administrator or
executor who seems to be incompetent for the task of administration of estate
due to the illness and other reasons.
185
12.4 Summary
In above chapter we have learnt that once the testator dies, the
executor must file the original will along with a probate petition in the
probate court to start estate proceedings. If no one else with an
interest in the estate the testator's heirs or specific beneficiaries
named in his will, for example challenges the appointment as
executor, executor will receive authority to act as executor from the
court, renunciation. This may lead to occurrence of contentious and
non-contentious proceedings. Contentious proceedings involve
determination of controversy between the parties in the court about
certain matter related to the administration of estate. These include
objections, caveats and revocations. However non-contentious
proceedings are voluntary proceedings which do not involve any
controversy between the parties in relation to the administration of
estate. These include citation, renunciation and consents to mention
but a few. These proceedings are part and parcel of the
administration of estate from its beginning to the finality.
12.5 Activities
i. Caveat
ii. Citation
iii. Revocation of grant
iv. Renunciation of executorship
2. Describe with authorities the reasons which can justify the
186
revocation of the grant.

3. Discuss with authorities the essence of the following terms:-
i. Caveats
ii. Citation
iii. Consent
4. Describe the importance and kinds of citation.
5. Discuss the reasons for the objection of the grants of
representation.
12.6 References
https://en.oxforddictionaries.com/definition/non-contentious.
Retrieved on 23rd September 2016
http://www.ten-percent.co.uk/what-is-the-difference-between-
contentious-and-non-contentious-legal-work/. Retrieved on 23rd
September 2016
http://definitions.uslegal.com/c/contentious-jurisdiction/. Retrieved on
23rd September 2016
Law Society of Ireland, Administration of Estates (November 2014

Edition) 4
187




1995
188
CHAPTER THIRTEEN
ADMINISTRATION OF ESTATE
13.0 Introduction
Whenever a person dies, his or her estate needs to be collected and managed.
Estate administration involves gathering the assets of the estate, paying the
decedent's debts, and distributing the remaining assets. Without a basic
understanding of the estate administration process, the whole experience can be
pretty overwhelming.
Therefore the chapter provides understanding on the process of administration

of estate. it also provides the powers and duties of the personal representation
as they are undertaking the administration of estate.
13.1 Objectives
 Acquired basic knowledge of concepts such as personal

representative, executor, administrator etc
 Acquainted with understanding of roles and functions of the
personal representatives during administration of estate.
 Acquainted with ability to examine and understand the
powers and duties of the personal representatives during the
administration of estate.
189
13.2 Functions of personal representative

A personal representative can be either an „executor‟ or „administrator‟. Executors
are the persons named in the Will to deal with the estate. Where there is a Will
but no executor, or where there is no will, the law provides who among the
deceased‟s beneficiaries or closest living relatives is entitled to deal with the
estate; this person is called an administrator.298
i. Protecting the assets of the estate, e.g. making sure that everything is
properly insured.
ii. Taking reasonable steps to secure property and valuables
iii. Arranging lists of property and valuables and arranging for valuations of
all property which was owned by the deceased including land, shares,
bank accounts etc.
iv. Finding out what debts have to be paid.
v. Obtaining al other information necessary to obtain the legal documents
which will allow the executor or administrator to deal with the estate.
13.3 Powers of the administrator or executor

When there are several executors or administrators, the powers of all may, in
executors the absence of any direction to the contrary in the will or grant of
letters of administration, be exercised by any one of them who has proved the
will or taken out administration.299
13.3.1 Enforce cause of actions
298
Law Society of Ireland, Administration of Estates (November 2014 Edition) 4
299
190
An executor or administrator has the same power to sue in respect of all causes
of action that survive the deceased, and may exercise the same powers for the
recovery of debts due to him at the time of his death, as the deceased had when
living.300
An executor or administrator may commence or defend proceedings with

creditors or third parties on behalf of an estate in relation to an estate asset.
However, an executor is not obliged to commence or defend legal proceedings at
his or her own expense.
The executor or administrator should seek to be indemnified from estate assets

or provided with funds by beneficiaries interested in pursuing such action.
13.1.1 Disposition of property
An executor or administrator has, in respect of the property vested in him 301,

power to dispose of movable property, as he thinks fit, and the powers of sale,
mortgage, leasing of and otherwise in relation to immovable property conferred
by written law upon trustees of a trust for sale.302
13.3.2 Expenditure
An executor or administrator may, in addition to any other powers of expenditure

lawfully exercisable by him, incur expenditure during administration of estate. 303
300
301
302
303
191
However such expenditure must be on such acts as may be necessary for the
proper care and management of any property belonging to the estate.
Also the administrator or executor must do so with the sanction of the court, or
of a district court having jurisdiction in the case, on such religious, charitable and
other objects, and on such improvements, as may be reasonable and proper in
the case of such property.304
13.3.3 Investment
Where the testator has bequeathed the residue of his estate to a person for life
with a direction that it shall be invested in certain specified securities, so much of
the estate as is not at the time of his death invested in securities of the specified
kind shall be converted into money and invested in such securities.305
Such conversion and investment shall be made at such times and in such manner
as the executor in his discretion thinks fit; and, until such conversion and
investment shall be completed, the person who would be for the time being
entitled to the income of the fund when so invested shall receive interest at the
rate of four per centum per annum upon the market-value306 of such part of the
fund as shall not yet have been so invested.307
Executors or administrators must invest estate funds and may be liable to

beneficiaries for lost interest if they do not invest prudently. The investments
304
Section 102 (a) and (b) of the Probate and Administration of Estate Act, CAP 352 RE
2002
305
306
To be computed as of the date of the testator's death
307
192
must be in the form authorised by the will, legislation or the court. An executor
or administrator is liable to make good any losses to the estate as a result of
unauthorized investments.
13.4 Duties of executors or administrators

An executor or administrator is in a fiduciary relationship with beneficiaries and
creditors. The principal duties of an executor or administrator are to collect the
assets of a deceased estate, pay debts, pay legacies under a will, and distribute
the assets to the beneficiaries.
If an executor or administrator carries out an instruction under a will or intestacy

rules to set aside a fund and hold it on trust for a beneficiary, they will become a
trustee of that property. An executor or administrator will act in that role until an
estate has been fully administered.
13.4.1 Collection of property and debts of deceased

person
The executor or administrator shall with reasonable diligence, collect the

property of the deceased and the debts that were due to him. 308
Administrator or executor should collect all assets, including debts payable to the
estate, as promptly as possible. This may also include commencing proceedings
against third parties for the purpose of enforcing a debt or obtaining an asset. If
an executor delays in collecting the assets of the estate, he or she could be
personally liable for legacy interest or losses.
308
193
13.4.2 Preservation of property
Executors or administrators must not allow assets to waste. Accordingly, an

executor or administrator would be prudent to lease and insure real property in
the estate.
Where an executor has failed to preserve an asset of an estate, he or she could

be personally liable if they lose a claim in “devastavit” 309 which is a breach of
duty or failure by the personal representative of a deceased estate to properly
preserve, protect and administer estate assets which causes loss to the estate.
13.4.3 Debts payment
Debts of every description must be paid before any legacy. If the estate of the
deceased is subject to any contingent liabilities, an executor or administrator is
not bound to pay any legacy without a sufficient indemnity to meet the liabilities
whenever they may become due.310
An executor or administrator shall pay all such debts as he knows of, equally and
rateably, as far as the assets of the deceased extend.311
The executor or administrator shall pay the debts of the deceased and the debts
and costs of administration.312 Debts shall be paid in the following order before
all other debts313:-
309
Devastavit is a Latin term meaning "he has laid waste". In the trusts and estates law
context, it is used to describe the mismanagement of the estate of a deceased person by
his or her personal representative, usually the executor, in "squandering and misapplying
the assets" contrary to the duty imposed of them.
310
311
194
First, funeral expenses to a reasonable amount, according to the degree and

condition of the deceased, and death bed charges, including fees for medical
attendance and board and lodging for one month previous to his death
Secondly, the expenses of obtaining probate or letters of administration,

including the costs incurred for or in respect of any judicial proceedings that may
be necessary for administering the estate
Thirdly, wages due for services rendered to the deceased of any workman,
labourer or domestic servant within four months next preceding his death.
13.4.4 Distribution of estate
The executor or administrator has a strict duty to ensure that they transfer the
estate assets to the persons entitled. Further, an executor is liable for any debts
of which he or she has notice prior to distributing to beneficiaries. However,
there are ways that an executor can protect himself or herself by the publication
of notices.
The executor or administrator shall with reasonable diligence distribute the

estate to the persons or for the purposes entitled to the same or to trustees for
such persons or for the purposes entitled to the same or to trustees for such
persons or purposes or in accordance with the provisions of this Act, as the case
may be.314
312
313
314
195
Nevertheless an executor or administrator is not bound to distribute the estate of

the deceased before the expiration of one year from the death of the
deceased.315
If the assets, after payment of debts, necessary expenses and specific legacies,
are not sufficient to pay all the general legacies in full, the latter shall abate or
be diminished in equal proportions.316
In the absence of any direction to the contrary in the will, the executor has no
right to pay one legatee neither in preference to another, nor to retain any
money on account of a legacy to himself or to any person for whom he is a
trustee.317
13.4.5 Duty not to derive any benefit from office
No executor or administrator shall derive any pecuniary benefit from his office,
unless there is express provision to that effect in the will.318
If an executor or administrator purchases, either directly or indirectly, any part of

the property of the deceased, the sale is voidable at the instance of any other
person interested in the property sold or in the proceeds of sale.319
13.4.6 Funeral provision
315
316
317
318
319
196
It is the duty of an executor to provide funds for the performance of the

necessary funeral ceremonies of the deceased in a manner suitable to his
condition, if he has left property sufficient for the purpose. 320
It is the duty of an executor to arrange for the burial or cremation of the

deceased. It is surprising to see how many disputes arise from a disagreement
about whether a deceased should be buried or cremated, especially in
circumstances where there is no direction in the will as to what the testator
wanted.
13.4.7 Inventory and accounts
Filing inventory and passing accounts involves including detailed evidence of all
receipts and payments and transfers of all estate assets, as well as detailed
evidence and receipts for all distributions made in accordance with the grant of
probate.
An executor or administrator appoint or require, shall exhibit in that court an

inventory containing a full and true estimate of all the property in possession,
and all the credits, and also all the debts owing by any person to which the
executor or administrator is entitled in that character.321
Executor or administrator must do so within six months from the grant of

probate or letters of administration, or within such further time as the court
which granted the probate or letters may from time to time.
320
321
197
Executor or administrator shall in like manner, appoint, exhibit an account of the

estate, showing the assets which have come to his hands and in the manner in
which they have been applied or disposed of.322
This should be done within one year from the grant or within such further time
as the court may from time to time.
Also, the executor or administrator shall appoint or require and on the

completion of the administration, exhibit in the like manner an account showing
the assets which have come into his hands and the manner in which they have
been applied or disposed of since the last account was exhibited.323
This is undertaken if the administration is not completed within one year from
the grant of probate or letters of administration.
Executor or administrator has to do so at intervals of not more than six months,

or within such further time as the court which granted the probate or letters of
administration may from time to time.
If an executor or administrator, on being required by the court to exhibit an

inventory or account under this section, omits to comply with the requisition
within the time limited in the requisition for compliance therewith, he commits an
offence and on conviction is liable to a fine not exceeding two thousand shillings
or to imprisonment for a term not exceeding six months.324
322
323
324
198
If an executor or administrator exhibits an intentionally false inventory or

account under this section he commits an offence and on conviction is liable to
imprisonment for a term not exceeding seven years.325
Any beneficiary under a will, person entitled to a share under intestacy or

unsatisfied creditor shall be entitled to inspect the inventory and accounts of an
executor or administrator.326
13.5 Summary
In above chapter we have learnt that Estate administration involves
gathering the assets of the estate, paying the decedent's debts, and
distributing the remaining assets. Without a basic understanding of the
estate administration process, the whole experience can be pretty
overwhelming. Administration of estate is undertaken by the personal
representatives of the deceased person. The personal representative
can be either an „executor‟ or „administrator‟. Executors are the persons
named in the Will to deal with the estate. Where there is a Will but no
executor, or where there is no will, the law provides who among the
deceased‟s beneficiaries or closest living relatives is entitled to deal
with the estate; this person is called an administrator. To perform the
functions in the administration of estate, the personal representatives
have powers and duties to smoothen their functions. When there are
several executors or administrators, the powers of all may, in executors
the absence of any direction to the contrary in the will or grant of
325
Section 107 94) of the Probate and Administration of Estate Act, CAP 352 RE 2002
326
199
letters of administration, be exercised by any one of them who has

proved the will or taken out administration. An executor or
administrator is in a fiduciary relationship with beneficiaries and
creditors. The principal duties of an executor or administrator are to
collect the assets of a deceased estate, pay debts, pay legacies under a
will, and distribute the assets to the beneficiaries.
13.6 Activities
i. Administration of estate
ii. Administrator
iii. Executor
2. Describe the functions of personal representatives of the deceased
person in the administration of estate.
3. Discuss with authorities the powers of the personal representatives
in the administration of estate.
4. Describe the duties vested to the personal representatives of the
deceased person in the administration of estate.
13.7 References
Law Society of Ireland, Administration of Estates (November 2014

Edition) 4
200




1995
201
CHAPTER FOURTEEN
JURISDICTION IN PROBATE AND ADMINISTRATION OF ESTATES
14.0 Introduction
Jurisdiction means authority or power vested to a person or body of persons to
adjudicate certain matters. Hence in Tanzania, there are persons and institutions
with power to determine various succession matters. These persons or bodies of
persons are going to be discussed in this chapter.
The discussion shall enable you to equip with jurisdictional knowledge and skills
for the determination of succession proceedings in Tanzania. The chapter gives
where or to whom the probate issues should be brought for the determination.
14.1 Objectives
 Acquired basic knowledge of concepts courts of probate and

administration of estate, jurisdiction of administration of estate.
 Acquainted with knowledge and skills to research on powers and
competence of the district, high and primary courts in
administration of estate
 Acquainted with knowledge and skills to research on powers and
competence of the district delegate in administration of estate.
202
14.2 Jurisdiction
Jurisdiction in probate and administration of estate means power and
competence to deal with matters of probate and the administration of estates.327
This includes power to grant and revoke grant of representation, appoint and
remove the executor and administrators, determine objections, renunciation,
caveats citation and propounding the will to mention but a few.
14.3 Court
According to section 2 of the probate and Administration of Estate Act328, the
court means the High Court and includes, in any case in which a District
Delegate has jurisdiction, a District Delegate, but does not include a district
court.
Also, district court has the meaning ascribed thereto in the Magistrates Courts
Act329 while district delegate means a resident magistrate appointed a District
Delegate.
14.4 High court

The High Court shall have jurisdiction in all matters relating to probate and the
administration of deceased's estates, with power to grant probates of wills and
327
https://en.wikipedia.org/wiki/Probate_court. Retrieved on 23rd September 2016
328
[CAP 352 RE 2002]
329
[CAP 11 RE 2002]
203
letters of administration to the estates of deceased persons and to alter or

revoke such grants.330
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. 331
An application for sealing of a probate or letters of administration shall be by

chamber summons supported by an affidavit and accompanied by the probate or
letters of administration and a copy thereof.332
Any person wishing to object to an application for sealing of a probate shall have
the right to appear and be heard at the hearing of the application.333
The High Court shall, before sealing a probate or letters of administration, be

satisfied in the case of letters of administration, that security has been given in a
sum sufficient in amount to cover the property, if any, in Tanzania to which the
letters of administration relate, and may, in any case, require such evidence as it
thinks fit, as to the domicile of the deceased person.334
The High Court may also, if it thinks fit, on the application of any creditor,
require, before sealing, that adequate security be given for the payment of debts
due from the estate to creditor residing in Tanzania.335
330
Section 3 of the Probate and Administration of Estate Act, Cap 352 RE 2002
331
Section 4, Probate and Administration of Estate Act, CAP 352 RE 2002
332
333
334
335
204
14.5 District Delegate

A District Delegate336 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 in non-
contentious cases and in contentious cases.337
If the Delegate is satisfied that the gross value of the estate does not exceed
fifteen thousand shillings, or the High Court authorises the Delegate to exercise
jurisdiction in such circumstances as are specified.338
No act of a District Delegate exercising jurisdiction in probate or administration

of estates shall be invalid by reason only that it is afterwards discovered that the
gross value of the estate exceeded fifteen thousand shillings.339
Nevertheless where the District Delegate becomes aware of such circumstances

in any contentious case, he shall report the matter to the High Court which shall
either direct the transfer of the proceedings to it or authorise the Delegate to
exercise jurisdiction therein.340
A District Delegate shall not have jurisdiction to exercise any of the powers
herein expressly conferred on the High Court.341
336
The Chief Justice may, from time to time, appoint such resident magistrates as he
thinks fit to be District Delegates
337
Section 5 (2), Probate and Administration of Estate Act, CAP 352 RE 2002
338
Probate and Administration of Estate Act, CAP 352 RE 2002,
339
340
Probate and Administration of Estate Act, CAP 352 RE 2002,
341
205
14.6 District Court

A district court presided over by a district magistrate shall have jurisdiction in the
administration of small estates where the deceased died within the jurisdiction of
the court.342
Small estate means an estate the gross value of which a court, district court of
other authority having jurisdiction in probate or administration is satisfied does
not exceed one hundred million.343
However, district court is vested with power to appoint administrators of small

estates using the form specified in the Fourth Schedule to this Probate and
Administration of Estate Act.
A district court may appoint as administrator one or more persons interested in

the estate or in the due administration thereof and, in selecting an administrator,
shall, unless for any reason it considers inexpedient so to do, have regard to any
wishes which may have been expressed by the deceased.344
However the law provides that an appointment of an administrator of a small

estate shall be made under the seal of the district court. Every administrator
shall sign an undertaking to administer the estate faithfully.345
Moreover, the district court may adjourn an application for an appointment in

order that it may be ascertained whether the Administrator-General346 will
342
343
Section 2, Probate and Administration of Estate Act, CAP 352 RE 2002 as amended
344
345
346
Under section 52 of the Administrator-General (Powers and Functions) Act
206
undertake the administration of the estate or may appoint an officer of the

district court or some such person aforesaid as administrator.347
This can only be done where a district court is of the opinion that, having regard
to the safety of the estate and the proper administration thereof, it is desirable
that the estate should be administered by the Administrator-General or an officer
of the district court or some reputable or impartial person able and willing to
administer the estate.348
Notwithstanding appointment shall not be made if there has been a previous

grant of probate of the will of the deceased or letters of administration of his
estate, or if the Administrator-General has himself lawfully undertaken the
Administration of the estate.349
Furthermore, the district court may, if it thinks fit, require an administrator of a

small estate to give security for the due administration of the estate. 350
Also, the district court may allow a Will to be proved either by oral evidence or
by affidavit, and may accept as proof of Will information which appears to the
court to be credible though it is not legal evidence.351
The appointment of any administrator may be revoked by the district court which
made the appointment for any reason which would justify the revocation of
347
348
349
350
351
207
probate or letters of administration or the removal of an executor, and with like

consequences.352
An administrator appointed by district court shall not, unless the district court
which appointed him otherwise orders is liable to file any inventory or accounts
or to give security.353
Every district court shall make such returns to the High Court as may be
prescribed by Probate Rules of all its proceedings.354
A district court presided over by a District magistrate may as respects any estate
with value under one thousand shillings within its jurisdiction, prohibit, restrict or
regulate the exercise of the power conferred by this section and may substitute
any other person for the surviving spouse or nearest relative, as the case may
be, as the person who is to administer the estate where, in the opinion of the
court, such substitution is necessary to conform with the practice or custom
recognised as applicable to the case by the parties concerned or is desirable on
other grounds.355
Every appointment, direction, or decision of a district court under this Part shall
be subject to appeal to the High Court. Probate Rules may restrict and regulate
such right of appeal to any extent and in any manner.356
352
353
354
355
356
208
14.7 Primary court

A primary court shall have and exercise jurisdiction in all proceedings of a civil
nature where the law applicable is customary law or Islamic law: Provided that
no primary court shall have jurisdiction in any proceedings affecting the title to
or any interest in land registered.357
The primary court has been conferred with jurisdiction in the administration of
deceased's estates where the law applicable to the administration or distribution
of, or the succession to, the estate is customary law or Islamic law. 358
The jurisdiction of a primary court in the administration of deceased's estates,

where the law applicable to the administration or distribution of the succession
to, the estate is customary law or Islamic law, may be exercised in cases where
the deceased at the time of his death, had a fixed place of abode within the local
limits of the court's jurisdiction.359
The practice and procedure of primary courts shall be regulated and, subject to
the provisions of any law for the time being in force, their powers limited in the
exercise of their jurisdiction in the administration of estates by the provisions of
the Fifth Schedule to this MCA.360
In matters of practice and procedure, by rules of court for primary courts which
are not inconsistent therewith and the said Code and Schedules shall apply
357
Section 18 (1) (a) (i) of the Magistrates Courts Act, CAP 11 RE 2002
358
Section 18 (2) of the Magistrates Courts Act, CAP 11 RE 2002
359
Rule 1 (1) Fifth Schedule to the MCA
360
Section 19(1) (c) of the Magistrates Courts Act, CAP 11 RE 2002
209
thereto and for the regulation of such other matters as are provided for
therein.361
Where the High Court has directed that the Probate and Administration of
Estates Act shall apply to an estate of which an administrator has been
appointed by a primary court, the primary court shall, upon receiving notice to
that effect from the High Court, revoke the appointment of such administrator
and require the surrender of any document evidencing his appointment.362
Where an appointment of an administrator is revoked by a primary court all

payments bona fide made to the administrator before the revocation thereof
shall, notwithstanding such revocation, be a legal discharge to the person
making the same and the administrator who shall have acted may retain and
reimburse himself out of the assets of the deceased estate in respect of any
payments made by him which an administrator may lawfully make. 363
14.8 Summary
In above chapter we have learnt that jurisdiction in probate and
administration of estate means power and competence to deal with
matters of probate and the administration of estates. This includes
power to grant and revoke grant of representation, appoint and
remove the executor and administrators, determine objections,
renunciation, caveats citation and propounding the will to mention but
a few. In Tanzania there are various courts with jurisdiction in probate
361
Section 19(1) (c) of the Magistrates Courts Act, CAP 11 RE 2002
362
Rule 3 Fifth Schedule to the MCA
363
Rule 4 Fifth Schedule to the MCA
210
and administration of estate. These are primary court, district court,

district delegate and high court. The jurisdiction of a primary court in
the administration of deceased's estates, where the law applicable to
the administration or distribution of the succession to, the estate is
customary law or Islamic law, may be exercised in cases where the
deceased at the time of his death, had a fixed place of abode within
the local limits of the court's jurisdiction. The High Court shall have
jurisdiction in all matters relating to probate and the administration of
deceased's estates, with power to grant probates of wills and letters of
administration to the estates of deceased persons and to alter or
revoke such grants. District delegate has jurisdiction in probate and
administration of estate if the Delegate is satisfied that the gross value
of the estate does not exceed fifteen thousand shillings, or the High
Court authorises the Delegate to exercise jurisdiction in such
circumstances as specified. A district court presided over by a district
magistrate shall have jurisdiction in the administration of small estates
where the deceased died within the jurisdiction of the court. Small
estate means an estate the gross value of which a court, district court
of other authority having jurisdiction in probate or administration is
satisfied does not exceed ten thousand shillings.
14.9 Activities
(i) Jurisdiction in probate and administration of estate
211
(ii) Court in probate and administration of estate.

2. Illustrate the powers of the primary court in exercising its
jurisdiction in administration of estate.
3. Discuss jurisdiction of high court in the administration of
estate.
4. Describe with authorities competence of the district delegate
in the administration of estate.
5. Explain jurisdiction of district court in the administration of
estate.
14.10 References
Magistrates Courts Act, CAP 11 RE 2002
D. Griffin, What are your responsibilities if you agree to be an

executor? de groots wills and estate lawyers, Taxation in Australia,
May 2013
M. Parkinson, An Introduction to Being an Executor, Mcfarlanes, 2014
J. Giles. A New Law-Dictionary, The Lawbook Exchange, Ltd., 2004
A. Sutcliffe, Executor duties and renouncing the role, the gazette

official public record, 2016
212


1995
213
CHAPTER FIFTEEN
INTRODUCTION TO LAW OF TRUST
15.0 Introduction
As trusts have come increasingly to be funded with liquid financial assets that
require alert management in the face of swiftly changing financial markets,
modern trust law has come to give the trustee broad powers to undertake any
type of transaction, subject to the trustee‟s fiduciary duties.364
This chapter provides conceptual understanding of the law of trust. It plays the
foundational roles for the law of trust understanding. It entails the concepts
related to the law of trust and their rationales and meanings.
15.1 Objectives
 Acquired basic knowledge of concepts such as trust and law of

trust.
 Acquainted with knowledge and skills to explain the main
elements of trust which determine its nature.
 Acquainted with ability to describe important characteristics that
define the trust.
 Developed competency to account for historical foundations of
the trust.
364
J. H. Langbein, The Contractarian Basis of the Law of Trusts, 105 Yale L.J. 625, 640-
643 (1995)
214
 Acquainted with knowledge and skills to explain principal uses of

trust as well as significance of trust in socio-economic life.
 Acquainted with knowledge and ability to describe the basic
principles which govern the law of trust.
15.2 Trust
A trust is a legal entity that holds property for the benefit of others and managed
by a trustee.365 The property rights are diverged: the trustee holds legal title to
the property while the beneficiaries of the trust hold equitable title.
15.2.1 Trust defined
A trust is an obligation which binds a person (s) to deal with property for the
benefit of beneficiaries or for a charitable purpose in accordance with the terms
of the trust. It can come into existence in any manner, by an instrument in
writing, by a unilateral declaration, by operation of law and also by oral
declaration.366
A trust is a relationship which subsists when a person called the trustee is

compelled to hold property, whether real or personal, and whether by legal or
equitable title for the benefit of some persons, of whom the trustee himself may
be one and beneficiaries, or for some object permitted by law; in such a way
365
McLain, D. L. & Hackman, B. K. 1995, Trust and risk taking in organizations, Unpublished
working paper, Virginia State University
366
Robert H. Sitkoff, the Economic Structure of Fiduciary Law, 91 B.U. L. Rev. 1039
(2011).
215
that the real benefit of the property accrues not to the trustee, as such, but to
the beneficiaries or other objects of the trust.367
15.2.2 Historical foundations of trust
The origins of the modern trust are deeply rooted in feudal land law which
existed in the Middle Ages. The trust, formerly known as a use, was employed to
encounter the problems of freedom of alienation and payment of taxes in the
system of feudalism.368
The system of tenure operated in a way in which no person, apart from the
Crown, was absolute owner of land. Instead the ownership of land was
fragmented vertically so that the King granted land to powerful lords who could
in return grant further segments of land to tenants.369
A tenant, of course, could grant certain land vested in him to other tenants. If he
did this, he had a dual role to play in connection with the land, for he would not
only be an overlord to his tenant, but he himself would also be a tenant
accountable to an overlord higher up in the feudal ladder.
Within this feudal system of tenure, the death of a tenant entitled the heir of the
tenant to take possession of the land, but not without first paying feudal dues to
the overlord. The employment of the use allowed land to be transferred to
367
Lewicki, R. J. & Bunker, B. B. 1995., Trust in relationships: A model of development and
decline. In B. B. Bunker & J. Z. Rubin (Eds.), Conflict, cooperation and justice: 133-173. San
Francisco: Jossey-Bass.
368
See J.L. Barton, ‘The Medieval Use’ (1965) LQR 562.
369
See S. Panesar, ‘The Importance of Possession of Land’ (2003) Hong Kong Law Journal
Vol. 33 at 569
216
trustees370 during the lifetime of the tenant upon use of the tenant and after his
death to members of his family, which could include the heir. 371
The advantage of this arrangement lay in the fact that on the death of the
tenant, the trustees would simply hold the land for the persons entitled after the
tenant. Since there was no acquisition on the death of the tenant, the overlord
had no apparent claim to dues.372
The land simply belonged to the trustees who at all times remained in
possession. Equitable intervention, however, meant that the conscience of the
trustees would bind them to the use.
The second advantage of the trust lay in the fact that it permitted greater
freedom to the tenant in devising his property to persons other than just the
heir. The common law was strict in requiring land be vested in the heir of the
tenant. Where the tenant died without an heir, the overlord became entitled to
the land by way of escheat.373
Transfer to trustees, however, allowed land be enjoyed by those designated in

the terms of the use rather than on the strict principles of the common law.
370
See, Thorne, ‘Livery of Seisin’ (1938) 52 LQR at 345
371
See G. Moffat, Trust Law: Text and Materials 4th edn (2005) at pp. 42–8
372
See F.H. Lawson and B. Rudden, The Law of Property 2nd edn (1982) at pp. 76–7
373
See Megarry and Wade, The Law of Real Property 7th edn (2008) at p. 26.
217
In recognition of the potential scope of the use in undermining the system of

feudal dues and the consequential emptying of the Crown pocket, the Statute of
Uses 1535374 was introduced which had the effect of undermining certain uses.
The basic aim of the legislation was to deny the beneficiary equitable rights in
the land. Rather, where the use was employed, the intended beneficiary acquired
a legal title to the land and was thus subject to feudal dues in the event of the
death of the tenant.
In 1540 the Statute of Wills was also passed in recognition that the landowning
aristocracy rejected the strict common law rule requiring land to be acquired by
the heir.375 The statute permitted greater freedom in the disposition of property
after the death of the tenant; however, such dispositions would be subject to the
same feudal taxes that existed before the statute.376
In the late 1800's or early 1900's, the trust was an effective means of managing
diverse businesses and forming monopolies so that higher prices could be
charged which is why laws that were passed to prevent such monopolies or to
break them apart were called antitrust laws.377
Trusts are an effective instrument to hold and manage property when there are
many owners or beneficiaries, because it is managed by the trustee for the
374
Described as the ‘most important single statute in the history of the trust’s
development’ by G. Moffat, Trust Law: Text and Materials, 3rd edn (1999) at p. 29; see
now 4th edn (2005) at p. 40.
375
See G.S. Alexander, ‘The Transformation of Trusts as a Legal Category, 1800–1914’
(1987) Law and History Review Vol. 5 at p. 320.
376
A.W. Scott, ‘The Trust as an Instrument of Law Reform’ (1922) 31 Yale LJ 457
377
Lorenz, E. H. 1993., Flexible production systems and the social construction of trust,
Politics & Society, 21(3): 307-324
218
benefit of the stakeholders.378 In years past, businesses formed business

trusts because such trusts were less regulated than corporations.379
15.2.3 Elements of trust
A trust is a legal entity that holds property for the benefit of others and managed
by a trustee.380 The property rights are diverged: the trustee holds legal title to
the property while the beneficiaries of the trust hold equitable title.381 Therefore
it can be deduced that trust has the following elements:
i. Equitable jurisdiction. It is a creature of equity rather than common

law.
ii. There is an equitable obligation i.e. an imperative duty. This was stated
in the case of Armitage v. Nurse382 that there is an irreducible core of
obligations owed by the trustee to the beneficiaries and enforceable by
them which is fundamental to the concept of a trust. If the beneficiaries
have no rights enforceable against the trustees there is no trusts.
iii. There is a trustee-beneficiary relationship.
iv. There is property constituting the subject matter.
378
Lewis, J. D. & Weigert, A. J. 1985a., Trust as a social reality. Social Forces, 63(4): 967-
985
379
Lindskold, S. 1978., Trust development, the GRIT proposal, and the effects of
conciliatory acts on conflict and
cooperation. Psychological Bulletin, 85(4): 772-793.
380
McLain, D. L. & Hackman, B. K. 1995, Trust and risk taking in organizations, Unpublished
working paper, Virginia State University
381
Luhmann, N. 1991., Trust and Power, Ann Arbor, MI: University Microfilms International
382
[1998] Ch. 241, 253 (App. Ct. 1997
219
v. There is duality of ownership i.e. the trust separates legal ownership of

trust property from its equitable or beneficial ownership.
15.2.4 Characteristics of trust
A trust has the following characteristics:-
(a) There must be three certainties: for a settlor to validly create a trust, in
most common law legal systems they must satisfy the three certainties,
established in the case of Knight v Knight383
a. Certainty of intention - whether the settlor (or testator) has
manifested an intention to create a trust.
b. Certainty of subject matter - whether the property identified as
being settled is sufficiently accurately identified.
c. Certainty of objects - the beneficiaries must be clearly
ascertainable within the perpetuity period
(b) The assets constitute a separate fund and are not part of the trustee‟s
own estate
(c) Title to the trust assets stands in the name of the trustee or in the name
of another person on behalf of the trustee.
(d) The trustee has the power and duty, in respect of which he is
accountable, to manage, employ or dispose of the assets in accordance
with the terms of the trust and the special duties imposed upon him by
law.
383
(1840) 49 ER 58
220
(e) There must be legally binding obligation. The Delaware Supreme Court in
the case of McNeil v. McNeil384 has put the point that a trust in which
there is no legally binding obligation is a trust in name only and more in
the nature of an absolute estate or fee simple grant of property.
(f) Trusts are used for a variety of different purposes, including setting aside
wealth for your dependents and honouring maintenance agreements.
(g) Trusts can be structured in varieties of ways to suit different needs,
including protecting assets from creditors, creating college funds and
securing settlor‟s next generation‟s wealth.
15.2.5 Uses of trust
The principal uses of a trust are hereby accounted for:-
a) To enable property particularly real property to be held for persons who

cannot themselves hold it e.g. even though the legal title to land cannot
be vested in an infant or a minor, there is no objection to land being
held in trust for the infant or minor;
b) To enable a person to make provision for dependants privately, the most
obvious examples are provisions made a man for his mistress or
illegitimate child; during the lifetime of the man there is no problem but if
the man were to provide for the mistress or illegitimate child through his
will, these circumstances are likely to leak out because once probate of the
will has been obtained the will is a public document and is open to
384
798 A.2d 503, 509 (Del. 2002
221
public inspection. On the other hand a trust deed in favour of the mistress
or illegitimate child escapes this publicity
c) To tie up property so that it can benefit persons in succession; an outright
gift may be made to a spouse in the hope that on their death that property
will go to the children but there is no guarantee that it will
do so. The spouse could get married again and the property could get
alienated. On the other hand a gift to trustees to hold on trust for the
spouse for life with the remainder to the children will ensure that the
children get the benefited
d) To protect family property from squanderers, a person may feel that an
outright gift or money or other property to a surviving spouse or child will
lead to its being squandered or wasted, a gift of that money or transfer of
that property to trustees to hold upon trust and to pay either the income
therefrom or only a limited proportion of the capital to the surviving
spouse or child at given intervals will probably prevent this;
e) To make a gift to take effect in the future in the light of circumstances
which have not yet arisen and therefore are not yet known? A person may
for instance have 3 young daughters and may by will set up a trust
whereby a sum of money is given to trustees for them to distribute among
the daughters either as they deem fit or having regard to stated factors
and with that discretion the trustees would be able for example in due
course to give say one quarter of the fund each to two of the daughters
who have married well and the remaining one half to the other daughter
who was not so lucky
15.2.6 Significance of trusts

222
The general importance of any trust is to manage and preserve property for the
benefit of one or more persons. However, a trust is usually set up for a special
purpose that meets specific needs or the needs of the beneficiaries.385
Trusts can be used for a variety of special purposes including minimizing taxes,
protecting assets from being squandered, or preserving a person's right to
receive government benefits.386
15.2.6.1 Trust avoids probate

Many people use trusts to avoid probate. Both irrevocable and revocable trusts
bypass the probate process. Probate is the court process that transfers
ownership of testator‟s assets to his or her beneficiaries after he or she dies.
Most people want to avoid probate because it is expensive and time
consuming.387
15.2.6.2 Trust helps during incapacitation

In a living trust, one can give his or her successor trustee the power to manage
trust property if he or she becomes incapacitated. This can be a great comfort to
those who anticipate being ill or who are reaching the end of life. The successor
385
http://trusts-estates.lawyers.com/estate-planning/trusts-to-achieve-special-
purposes.html. Retrieved on 24th September 2016
386
McKnight, D. H., Cummings, L. L. & Chervany, N. L. 1996. Trust formation in new
organizational relationships, MIS Research Center, Working Paper Series, WP 96-01,
Carlson School of Management, University of Minnesota
387
Rempel, J. K., Holmes, J. G., & Zanna, M. P. 1985, Trust in close relationships. Journal of
Personality and Social Psychology, 49(1): 95-112.
223
trustee will have the duty to manage the property for trustor, in trustor‟s best
interest.388
If trustor becomes able to manage his or her affairs again, he or she can take
back control of his property. On the other hand, if trustor dies, the successor
trustee will become responsible for distributing the property according to the
terms of such trust.389
15.2.6.3 Trust controls inheritances

The most common use is to safeguard assets for minor beneficiaries. Basically,
this creates an inheritance in the form of a trust which is a failsafe way of
passing on your assets.390
Trusts can also serve the purpose of keeping control of trustor‟s assets even
after his or her death. If settlor passes his or her assets to his or her
beneficiaries through a will, they receive the assets when settlor dies.391
If such trustor uses a trust instead, he or she can set it up so that beneficiaries
receive their inheritance over time, when they reach a certain age, or when they
388
http://trusts-estates.lawyers.com/trust-planning/what-is-the-purpose-of-a-trust.html.
Retrieved on 24th September 2016
389
Orbell, J., Dawes, R. & Schwartz-Shea, P. 1994. Trust, social categories, and individuals:
The case of gender. Motivation and Emotion, 18(2): 109-128
390
Riker, W. H. 1971. The nature of trust. In Tedeschi, J. T. (Ed.), Perspectives on Social
Power, 63-81, Chicago: Aldine Publishing Company.
391
Ibid
224
meet certain conditions. The trustee named in the trust controls and manages
the property until he or she distributes it to the beneficiary.392
These types of trust like special needs trusts, minor‟s trusts, and spendthrift
trusts are useful to people who want to give their property to beneficiaries who
cannot (yet) manage it themselves.393
15.2.6.4 Trusts can provide funds for educational

purposes
Trusts can make money available to children, grandchildren, other relatives, or
even nonrelatives for educational purposes, such as college tuition and living
expenses.394 A person can set up and fund trusts that parcel out money for
educational purposes with a no-school, no-money restriction.395
15.2.6.5 Trusts to benefit charities and institutions

A person can help out charities by setting up some type of charitable trust that
may, for example, annually give money to the charity while he or she is still
alive, give a larger amount upon his or her death, and then continue to make
regular payments out of the remainder.396
392
Sato, K. 1988. Trust and group size in a social dilemma. Japanese Psychological
Research, 30(2): 88-93
393
Rotter, J. B. 1980. Interpersonal trust, trustworthiness, and gullibility. American
Psychologist, 35: 1-7
394
http://www.dummies.com/personal-finance/estate-planning/benefits-of-setting-up-a-
trust/. Retrieved on 24th September 2016
395
Shapiro, S. P. 1987a. The social control of impersonal trust. American Journal of
Sociology, 93(3): 623-658.
396
225
A person can even set up a charitable trust to make regular payments to the
charity for some amount of time but eventually give back whatever is left to such
person or, if he or she has died, to someone else in his or her family.397
Alternatively, the person can set up a charitable trust to work the other way such
pay him or her while he or she is still alive, and upon his or her death, the
remaining amount in the trust goes to the charity.398
15.2.6.6 Trusts avoid taxes

The trust has, since it‟s very beginnings, been a primary vehicle by which an
individual can reduce his tax liability by settling his property for the benefit of his
family members, thereby reducing the extent of tax payable on his income.
One common tax-saving trust is an irrevocable life insurance trust. After death,
the proceeds from such life insurance policy (the death benefit amount) are
added back into the estate, often turning an estate that isn‟t subject to estate
taxes into an estate that needs to write a substantial check to the tax revenue
authorities.399
However, an irrevocable life insurance trust shelters life insurance death benefit
proceeds from estate taxes. After setting up the trust, a person still have life
insurance, and his or her beneficiary or beneficiaries still receive the proceeds
397
Taylor, R. G. 1989. The role of trust in labor-management relations. Organization
Development Journal, summer, 1989: 85-89
398
Shapiro, S. P. 1987b. Policing trust. In Shearing, C. D. & Stenning, P. C. (Eds.), Private
policing: 194-220. Newbury Park, CA: Sage
399
226
from the policy upon his or her death. But now, estate taxes may not be a
problem.400
15.3 Law of Trust

Trust law is the body of rules and principles which govern the relationship when
one person holds property for the benefit of others and managed by a trustee.
This relationship which subsists when a person called the trustee is compelled to
hold property, whether real or personal, and whether by legal or equitable title
for the benefit of some persons, of whom the trustee himself may be one and
beneficiaries, or for some object permitted by law.
15.3.1 Nature of trust law
Modern trust law gives the trustee all of the powers over trust property that a
legally competent, unmarried individual has with respect to individually owned
property.401
However, in deciding whether and how to exercise the powers of the trusteeship,
the trustee is subject to and must act in accordance with the trustee‟s fiduciary
duties.
What has happened, in other words, is that modern trust law has come to
substitute empowerment subject to fiduciary obligation for simple
400
Thorslund, C. 1976. Interpersonal trust: A review and examination of the concept.
Goteborg Psychological Reports, 6(6):1-21
401
John H. Langbein, Rise of the Management Trust, Tr. & Est., 52 (Oct. 2004).
227
disempowerment as the preferred means for safeguarding the beneficiary‟s

interests.402
The settlor need not spell out with specificity what the trustee should do in all
possible future circumstances, an impossible task given transaction costs and the
settlor‟s lack of clairvoyance.
Instead, trust law provides the trustee with expansive default powers of
administration, trustee‟s exercise of which is subject to review ex post for
compliance with the open-ended fiduciary duties of loyalty and prudence.
15.3.2 Basic principles of trust law
The relevant principles of trust law are as hereby accounted for:-
(a) Equity operates on the conscience of the owner of the legal interest. In
the case of a trust, the conscience of the legal owner requires him to
carry out the purposes for which the property was vested in him (express
or implied trust) or which the law imposes on him by reason of his
unconscionable conduct (constructive trust).
(b) Since the equitable jurisdiction to enforce trusts depends upon the
conscience of the holder of the legal interest being affected, he cannot be
a trustee of the property if and so long as he is ignorant of the facts
alleged to affect his conscience, i.e. until he is aware that he is intended
to hold the property for the benefit of others in the case of an express or
402
Frank H. Easterbook & Daniel R. Fischel, Corporate Control Transactions, 91 Yale L. J.
698, 702 (1982)
228
implied trust, or, in the case of a constructive trust, of the factors which
are alleged to affect his conscience.
(c) In order to establish a trust there must be identifiable trust property. The
only apparent exception to this rule is a constructive trust imposed on a
person who dishonestly assists in a breach of trust who may come under
fiduciary duties even if he does not receive identifiable trust property.
(d) Once a trust is established, as from the date of its establishment the
beneficiary has, in equity, a proprietary interest in the trust property,
which proprietary interest will be enforceable in equity against any
subsequent holder of the property whether the original property or
substituted property into which it can be traced other than a purchaser
for value of the legal interest without notice.
15.4 Summary
In above chapter we have learnt that in the late 1800's or early
1900's, the trust was an effective means of managing diverse
businesses and forming monopolies so that higher prices could be
charged which is why that laws were passed to prevent such
monopolies or to break them apart were called antitrust laws. Trusts
are an effective instrument to hold and manage property when there
are many owners or beneficiaries, because it is managed by the
trustee for the benefit of the stakeholders. Trusts are creatures of
equity hence they create equitable obligations. In trust there must be
property which forms subject matter of the trust. In the trust there are
three parties such as settlor or trustor, trustee and beneficiaries.
229
Trusts are used in various areas such as to enable holding property for
the person who cannot hold for themselves but for their benefits. They
are used to provide funds for education privately. They protect family
properties from squanders as well as to tie property for the
succession. The general importance of any trust is to manage and
preserve property for the benefit of one or more persons. However, a
trust is usually set up for a special purpose that meets specific needs
or the needs of the beneficiaries. Trust law provides the trustee with
expansive default powers of administration, trustee‟s exercise of which
is subject to review ex post for compliance with the open-ended
fiduciary duties of loyalty and prudence. Modern trust law has come to
substitute empowerment subject to fiduciary obligation for simple
disempowerment as the preferred means for safeguarding the
beneficiary‟s interests.
15.5 Activities
(i) Trust
(ii) Law of trust
2. Illustrate the elements which define the nature of trust.
3. Discuss principle characteristics of trust.
4. Describe principal uses of trust.
5. Illustrate the significance of trust in socio-economic arena.
6. Explain with vivid examples basic principles which govern the law of
230
trust.
15.6 References
Hayton, D. „Developing the Obligation Characteristics of the Trust‟

(2001) 117 LQR
Mathews, P. „All about Bare Trusts‟ (2005) PCB at 266
Panesar, S. „General Principles of Property Law‟ (Longmans) (2001)
Parkinson, P. „Reconceptualising the Express Trust‟ [2002] 61 CLJ 65
Scott, A.W. „The Trust as an Instrument of Law Reform‟ (1922) 31

Yale Law Journal 457
Langbein, J.H. Rise of the Management Trust, Tr. & Est., 52 (Oct.
2004).
Easterbook F. H. & Daniel R. F., Corporate Control Transactions, 91

Yale L. J. 698, 702 (1982)
Thorslund, C. Interpersonal trust: A review and examination of the

concept. Goteborg Psychological Reports, 6(6):1-21, 1976.
Taylor, R. G., The role of trust in labor-management relations.

Organization Development Journal, summer, 1989: 85-89, 1989
Shapiro, S. P. Policing trust. In Shearing, C. D. & Stenning, P. C.

(Eds.), Private policing: 194-220. Newbury Park, CA: Sage, 1987b.
231
CHAPTER SIXTEEN
CLASSIFICATION OF TRUSTS
16.0 Introduction
Traditional classification of trusts has distinguished between express and imputed
trusts and bare and active trusts. Express trusts are those trusts created by a
deliberate act of a person called a settlor, or in the case of a trust created in a
will by a testator. Express trusts can be subdivided into private and public or
charitable trusts. A private trust is one that seeks to provide for private persons
such as members of family, friends or other class of beneficiaries closely
connected with the settlor.
The chapter provides general knowledge on various types of trust and their
purposes. It provides understanding on the classification of trust as well as
characteristics of each class and how each class is different from the other.
16.1 Objectives
 Acquainted with knowledge and skills to explain the nature of

classification of trust.
 Acquainted with ability to describe each kind of trust and its
nature.
 Developed competency to compare and contrast the kinds of
trust.
232
16.2 Categories of trust

While all types of trusts must have a settlor, a trustee, a beneficiary and some
sort of property, they all don‟t have to hold the same property, the same purpose
and they don‟t have to be created in the same manner.
These differences give rise to the various types of trusts which exist today. One
may find various classifications of trusts however the most basic classification of
trusts derives from the way in which the trust is created.403
16.2.1 Express Trust
An express trust is where the legal owner of the property declares that they hold
the property on trust for specified beneficiaries. The declaration will also set out
the proportion or ways in which they are to hold beneficial interest. Where there
is an express declaration, this will override the principles of resulting or
constructive trusts unless the declaration was obtained by fraud or mistake.
16.2.1.1 Meaning of express trust

An express trust is one created by an express declaration of the person in whom
the property is vested. This could be under a will or by way of a trust deed or
even under a document not under seal or orally. What matters is that there is
intention and conduct creating the trust. An express trust is also referred to as a
declared trust.404
403
J. H. Langbein, Mandatory Rules in the Law of Trusts, 98 Nw. U.L. Rev. 1105 (2004)
404
Henry Hansmann & Reinier Kraakman, Property, Contract, and Verification: The
Numerus Clausus Problem and the Divisibility of Rights, 31 J. Leg. Stud. S373 (200
233
16.2.1.2 Requirements of express trust

i. Intention to create trust
The legal owner must make it clear that they intend to hold the land for the
benefit of another. It was cemented in the case of Richards v
Delbridge405 Mr Richards employed a member of his family, Edward, in his
business. He wished to hand over the business to Edward and evidenced his
intention to make this gift by endorsing on the lease of the business premises a
short memorandum:
"This deed" -- that is the deed of leasehold -- "and all thereto belonging I
give to Edward from this time forth with all the stock in trade."
However, the gift failed because it was imperfect. The court held that there was
no express declaration of trust it was intended as an outright gift and not to be
held on trusts.
ii. Transfer of legal title to the trustee
This requirement only applies where the legal owner intends to create an express
trust by transferring the legal title to a third party. In such circumstances the
declaration itself is not sufficient to create a trust, but the express trust will only
come into existence where the transfer of the legal title is complete by
registration or the moment that the transferee has done all in his power to
transfer the legal title to the transfer.
iii. Written declaration
405
(1874) LR 18 Eq 11 Court of Appeal
234
The declaration of trust has to be evidenced in writing and signed by the person
declaring the trust. The written declaration must contain the material terms of
the trust.
In the case of Rochefoucauld v Boustead406 Land was transferred to the

defendant on the understanding that it would be held on trust for the Comtesse
de la Rochefoucauld however, this was never actually put into writing.
The defendant mortgaged the property. The Comtesse sought a declaration that
the defendant held the property on trust. The defendant argued the trust was
not enforceable due to lack of writing.
The court held that Equity will not allow a statute to be an instrument of fraud.
To deny the existence of the trust would amount to a fraud on the Comtesse.
The trust could be evidenced by oral evidence.
Lindley LJ commented that
„that the Statute of Frauds does not prevent the proof of a fraud; and that
it is a fraud on the part of the person to whom the land is conveyed as a
trustee, and who knows it was so conveyed, to deny the trust and claim
the land himself‟.
16.2.1.3 Creation of express trust

This is created when the settlor deliberately and consciously creates a trust
either to come into existence now or later upon death. They are deliberately
406
[1897] 1 Ch. 196
235
created by the settlor or drafted by a lawyer and those which according to the
court‟s interpretation show the true intentions of the settlor.407
Typically in such situations the beneficiaries are clearly identifiable and a trustee
is appointed in order to manage specific property according to the terms set out
by the settlor.408
However for any express trust to exist it is required that property is sufficiently
identifiable, there is no uncertainty as to the identity of the beneficiaries and the
legal title in the trust property must be transferred to the trustee before the trust
can be effective.
16.2.1.4 Characteristics of express trust

The characteristics of an express trust are:
i. It is a legal relationship in which the trustee holds or deals with trust

property on behalf of another person or persons (the beneficiaries) or
for a purpose permitted at law.
ii. The trustee is bound by a fiduciary duty to deal with the trust property
for the benefit of the beneficiaries or for the purposes of the trust.
iii. Any beneficiary, or the Attorney-General in the case of a charitable
trust, may enforce the trustee‟s duties against the trustee.
iv. The beneficiaries have equitable rights in or in respect of the trust
property.
407
Essays, UK. (November 2013). A Trust Is An Obligation Which Binds A Person Equity
Law Essay. Retrieved from http://www.lawteacher.net/free-law-essays/equity-law/a-
trust-is-an-obligation-which-binds-a-person-equity-law-essay.php?cref=1
408
Thomas W. Merrill & Henry E. Smith, Optimal Standardization in the Law of Property:
The Numerus Clausus Principle, 110 Yale L.J. 1 (2000
236
v. Trust must not have the sole trustee as the sole beneficiary of the
trust.
16.2.2 Implied or Resulting Trust
Trust that arises from the un-expressed and presumed intentions inferred from a
trustor's conduct, language, or relationships, or is enforced by a court as a result
of surrounding circumstances.409 An implied trust arises from the presumed as
opposed to the expressed intention of the owner of the property.
So for example if property is transferred to A to be held on certain trust which

fail there is a presumption that A hold the property in trust for the owner‟s
estate. Sometimes these are also called presumptive trusts or resulting trusts. 410
16.2.2.1 Nature of implied trust

This trust is implied by court and hence it is not created intentionally by the
settlor. This can be further sub-divided into two which include „presumptive‟ and
411
„automatic‟.
When a settlor transfers property to a beneficiary and there is evidence which

indicates that the intention for the property was to be held in trust refers to a
presumptive implied trust. However, there are instances where this will not hold
409
Read more: http://www.businessdictionary.com/definition/implied-trust.html
410
Thomas W. Merrill & Henry E. Smith, The Property/Contract Interface, 101 Colum. L.
Rev. 773 (2001); see also Sitkoff, supra note 2, at 643.
411
On Fitting Trusts into Civil Law Jurisdictions, 6, available online at
http://users.ox.ac.uk/~alls0079/chinatrusts2.PDF
237
true, such as the case where assets are transferred form a husband or wife to
their spouse.412
On the other hand, an implied automatic trust occurs when there is no intention
expressed or any presumption of a resulting trust by the settlor, example where
the beneficiaries are not sufficiently identified, or when the objectives of the trust
are no longer relevant.413
16.2.3 Constructive Trusts
At its simplest, the term „constructive trust‟ describes the circumstances in which
property is subjected to a trust by operation of law. Unlike an expressly declared
trust, a constructive trust does not come into being solely in consequence of the
express intention of a settlor. Unlike a resulting trust, it is not the product of an
implied intention.
16.2.3.1 Meaning of constructive trust

This is a trust imposed by equity although it is neither the expressed nor the
presumed intention of the settlor or the testator or the owner of the property.
Equity will impose such a trust when it would an abuse of confidence to allow the
holder of the property to use it for his own benefit. 414
412
http://www.lawteacher.net/free-law-essays/property-trusts/the-law-of-implied-
trusts-of-the-home-law-essays.php. Retrieved on 25th September 2016
413
Henry Hansmann & Ugo Mattei, The Functions of Trust Law: A Comparative Legal and
Economic Analysis, 73 N.Y.U. L. Rev. 434 (1998)
414
Henry Hansmann & Ugo Mattei, Trust Law in the United States: A Basic Study of Its
Special Contribution, 46 Am. J. Comp. L. 133 (1998)
238
In the case of Keech v. Standford (1726) it was observed that where the
trustee of leasehold property had used his position to induce the landlord to
renew the lease in his favour upon the determination of the initial term of the
lease.
The court held that this was an attempt to obtain a personal advantage for him
which was antagonistic to the beneficiary‟s interest and in bad faith. He was
directed to hold the new lease on the trust under which he held the old lease.
16.2.3.2 Occurrence of trust

This is trust arises by operation of law. It is the court that makes an imposition
on the parties to create a trust, regardless their intentions. 415
A constructive trust is said to be an equitable remedy by court with the purpose

of preventing someone who has unfairly got hold of the title to a property from
being unjustly enriched.416
When the court decides that a constructive trust should take place, it is usually
obliged that a person transfers title and possession of property to the beneficiary
i.e. the person chosen by the court.
16.2.3.3 Uses of constructive trust

There are two ways of making use of constructive trust either to create a
proprietary constructive trust or imposing liability to account on a defendant who
has participated in a breach of trust.417
415
http://www.inbrief.co.uk/property-law/english-constructive-trust/ retrieved 25th
September 2016
416
Frances H. Foster, American Trust Law in a Chinese Mirror, 94 Minn. L. Rev. 602, 621-
50 (2010)
239
Proprietary constructive trust can come into existence by way of general

constructive trust, trust relating to interference with property, trust relating to
voluntary agreements and trusts used to reinforce fiduciary responsibilities.418
16.2.4 Living Trusts
A trust is an arrangement in which one or more people manage or take care of

property for someone else's benefit.419 A living trust is a trust that is created
during your lifetime. In other words, while a person is still alive, he or she
transfers title to his or her property from his or her name to that of the trustee of
the living trust. He or she can use the trust to gather his or her property under
one document, so that the property is distributed efficiently after the death.
16.2.4.1 Rationale behind living trust

Living trusts are usually created to avoid probate and they are almost always
revocable. So the settlor of a living trust usually has the power to change or
terminate the trust.420
Indeed, the power to change or terminate the trust is one of the benefits of this
type of trust. Settlors usually make a living trust to keep control of trust property
during their lives, and to avoid probate when they die.
417
Bernard Rudden, Book Review, 44 Mod. L. Rev. 610, 610 (1981)
418
Paul Matthews, The Comparative Importance of the Rule in Saunders v. Vautier, 122
L.Q. Rev. 266 (2006).
419
https://www.legalzoom.com/knowledge/living-trust/topic/living-trust-definition.
Retrieved on 25th September 2016
420
https://www.legalzoom.com/articles/top-three-benefits-of-a-living-trust. Retrieved on
th
25 September 2016
240
16.2.4.2 Alteration of living trust

If trustor has just small changes to make to his or her living trust, it usually
makes sense to add an amendment or to restate the trust, rather than revoking
it and writing a new one.
This is because making a new trust requires him or her to transfer all trust
property to the new trust and this can be a substantial amount of work.
Amending the trust involves adding a page to the trust that describes the
changes. Amending a trust is sufficient for very small and simple changes, like
changing the name of a trustee or beneficiary.
For more substantial changes, restating the trust is usually better because you
“restate” the entire trust, including the changes, so there is less room for
ambiguity. However, for truly substantial changes, you may need to revoke your
old trust and write a new one.
Revocations, amendments, and restatements must be in writing, signed by the

settlor, and acknowledged by a notary public. Generally, a living trust cannot be
changed or revoked after the death of the settlor.
16.2.5 Testamentary Trusts
A testamentary trust is a legal and fiduciary relationship created through explicit

instructions in a deceased's will. A testamentary trust goes into effect upon an
individual's death and is commonly used when someone wants to leave assets to
a beneficiary, but doesn't want the beneficiary to receive those assets until a
specified time. Testamentary trusts are irrevocable.
241
16.2.5.1 Meaning of testamentary trust

A testamentary trust is a trust that is created when the settlor dies. For example,
when a will maker includes a trust as part of a will, the trust doesn't take effect
until the will maker dies.
A testamentary trust usually states when it will end for example, when the
beneficiary reaches a certain age or when a specific purpose is achieved. All
trusts terminate when their funds are depleted or if their purposes become
unattainable.421
16.2.5.2 Rationale behind testamentary trust

This type of testamentary trust is often used to set up trusts for minors, so that
someone is named to help manage a child's inheritance. The main benefits of
testamentary trusts are their ability to protect assets and to reduce tax paid by
beneficiaries from income earned from the inheritance. Testamentary trusts can
help protect your assets when they pass to your beneficiaries.
16.2.5.3 Modification of testamentary trust

If testator includes a testamentary trust in his or her will, he or she can modify it
or revoke it at any time, but after you die it becomes irrevocable. The trustee or
beneficiaries may be able to modify the trust after the death, but under limited
circumstances. For example, if the trust cannot achieve its intended purpose.
This sometimes happens when the amount of money in the trust is different than
expected or when the beneficiary‟s needs change.
421
https://www.dixon.com.au/news/news-article/why-use-a-testamentary-trust. Retrieved
25th September 2016
242
16.2.6 Private trust
A private trust is trust for the benefit of certain private individuals, and not for
the general public. A trust is said to be private if it is for the benefit of an
individual or a class of individuals which the law refers to as a defined but limited
group of beneficiaries. By its nature it can be enforced by the individual or
individuals. It is private even though there may be some benefit
conferred thereby to the public at large.422
A private trust can be created by any person who is of the age of majority and is
of sound mind, and is not disqualified by any law. But in case of a minor, for
whom a guardian is appointed by the court or of whose property the
superintendence has been assumed by the court of wards the age of majority is
twenty one years.
16.2.7 Public trusts
They are also known as a purpose trust. They might or might not be charitable.
They are created to promote public welfare and not for the needs of any
single individual.423 The public trust is only enforceable for that purpose or
by two or more persons who can show that they have interest in the trust.
16.2.8 Discretionary trusts
422
Hansmann H. & Mattei, U., the Functions of Trust Law: A Comparative Legal and
423
243
Discretionary trust is a trust where the beneficiaries and/or their entitlements to

the trust fund are not fixed, but are determined by the criteria set out in
the trust instrument by the settlor424.
Where the discretionary trust is a testamentary trust, it is common for the settlor
to leave a letter of wishes for the trustees to guide them as to the settlor's
wishes in the exercise of their discretion. Letters of wishes are not legally binding
documents
Executor gives the beneficiary the option to take part or all of their inheritance
via testamentary trust. The primary beneficiary has the power to remove and
appoint the trustee and they can appoint themselves to manage their inheritance
inside the trust. Learn about the key people in a discretionary testamentary
trust.425
Discretionary trusts can be discretionary in two respects. First, the trustees

usually have the power to determine which beneficiaries from within the class
will receive payments from the trust. Second, trustees can select the amount of
trust property that the beneficiary receives.
Although most discretionary trusts allow both types of discretion, either can be
allowed on its own. It is permissible in most legal systems for a trust to have a
fixed number of beneficiaries and for the trustees to have discretion as to how
424
425
Scott, A.W. ‘The Trust as an Instrument of Law Reform’ (1922) 31 Yale Law Journal
457
244
much each beneficiary receives, or to have a class of beneficiaries from whom

they could select members, but provide that the amount to be provided is fixed.
16.2.9 Protective trusts
The term "protective trust” is something of an umbrella covering various types of

trusts that are put in place to protect a person's estate and/or assets
from taxation, bankruptcy, lawsuits, a rogue beneficiary or other threats.426
In general, a protective trust is designed to make sure the income from the trust
goes to the beneficiary for whom it was designated, and that this transfer will
not be altered or interfered with in any way.
Beneficiary must take their inheritance via the trust and does not have the option
to appoint or remove trustees. May be useful where the beneficiary is not in a
position to responsibly manage their inheritance due to age, disability or
spendthrift tendencies
In ordinary situations, any income that a beneficiary receives from a trust is

considered an asset of the beneficiary. This means that income is subject to
being intercepted and/or changed in ways the donor may not agree with. The
beneficiary, for example, could sell the right to the income or he or she could
also lose it should bankruptcy be filed or should a lawsuit be brought in court.427
When a trust owns the assets, that trust is a separate legal entity from the
creator or beneficiary. This separation provides great protection. For example, if
426
Mathews, P. ‘All About Bare Trusts’ (2005) PCB at 266
427
Panesar, S. ‘General Principles of Property Law’ (Longmans) (2001)
245
the beneficiary is sued (whether that beneficiary is the person who set up the
trust or not), any assets in the protective trust may be more difficult or even
impossible to access in the event of a lawsuit depending on how that trust was
initially set up.
16.3 Summary
In above chapter we have learnt that traditional classification of
trusts has distinguished between express and imputed trusts and
bare and active trusts. Express trusts are those trusts created by a
deliberate act of a person called a settlor, or in the case of a trust
created in a will by a testator. Express trusts can be subdivided into
private and public or charitable trusts. A private trust is one that
seeks to provide for private persons such as members of family,
friends or other class of beneficiaries closely connected with the
settlor. In general, a protective trust is designed to make sure the
income from the trust goes to the beneficiary for whom it was
designated, and that this transfer will not be altered or interfered
with in any way. Discretionary trust is a trust where
the beneficiaries and/or their entitlements to the trust fund are not
fixed, but are determined by the criteria set out in the trust
instrument by the settlor. The term „constructive trust‟ describes the
circumstances in which property is subjected to a trust by operation
of law. Unlike an expressly declared trust, a constructive trust does
not come into being solely in consequence of the express intention of
a settlor. Unlike a resulting trust, it is not the product of an implied
246
intention. An implied trust is trust that arises from the un-expressed

and presumed intentions inferred from a trustor's conduct, language,
or relationships, or is enforced by a court as a result of surrounding
circumstances.
16.4 Activities
1. Illustrate the characteristics of express trust which define its
nature.
2. Compare and contrast public and private trusts.
3. Differentiate between the express trust and implied trusts.
4. What is discretionary trust? Why are they created?
5. What is the difference between testamentary and protective
trusts?
16.5 References

(2001) 117 LQR

(2001) 117 LQR
Mathews, P. „All About Bare Trusts‟ (2005) PCB at 266
Parkinson, P. „Reconceptualising the Express Trust‟ [2002] 61 CLJ
247
65

Hansmann H. & Mattei, U., the Functions of Trust Law: A

Comparative Legal and Economic Analysis, 73 N.Y.U. L. Rev. 434
(1998)
Hansmann H. & Mattei, U., Trust Law in the United States: A Basic
Study of Its Special Contribution, 46 Am. J. Comp. L. 133 (1998)
248
CHAPTER SEVENTEEN
CREATION OF TRUSTS
17.0 Introduction
When a trust is created orally, the law requires that there is sufficient evidence
of the settlor‟s intention to create a trust. In the absence of unequivocal
evidence of this intention the law will presume that the person intended mandate
or deposit and not the creation to a trust.428
This chapter deals with the how trusts are created. It provides understanding on
the modes or ways of creations of trusts. It also provides the requirements and
formalities for the trust creations.
17.1 Objectives
 Acquired basic knowledge of creation of trust.

 Acquainted with knowledge and skills to explain capacity of
creation of trust.
 Acquainted with ability to describe certainties important for
creation of trust.
 Developed competency to account for formalities of the creation
of trust.
428
Robert H. Sitkoff, The Economic Structure of Fiduciary Law, 91 B.U. L. Rev. 1039,
1040-41, 1044 (2011).
249
17.2 Creation of trust

A trust is created when the person creating the trust, termed the author of
the trust indicates with reasonable certainty by any words or acts the following.
a. An intention on his part to create trust.

b. The purpose of the trust.
c. The beneficiary.
d. The trust property
17.3 Capacity of creation of trust

Capacity refers to the settlor's ability to create a trust in the first place; generally
speaking, anyone capable of holding property can create a trust.
There are exceptions for statutory bodies and corporations, and minors who
usually cannot hold property can, in some circumstances, create trusts.
The first requirement of an express trust is capacity; the person creating the
trust must be legally capable of doing so. Generally speaking, anyone capable of
holding property can form a trust, although there are exceptions. A minor cannot
hold land, and therefore cannot create a trust of land; in addition, unless they
are soldiers or "mariners at sea", they cannot form a valid will.429
Where a minor tries to create a trust, it will be held voidable, and can be
repudiated by him when he reaches majority, or soon after. Where the trust is
clearly of detriment to the minor, the courts may decide to take it as void; the
429
E. Richard; Nigel Stockwell (2007). Trusts and Equity (8th ed.). Pearson
Longman, ISBN 978-1-4058-4684-4
250
individual, when he reaches majority, could alternately plead non est factum if
he had been too young to appreciate the nature of forming a trust. 430
People who are considered mentally disordered and have a receiver appointed
cannot have trusts directly enforced against them, as they no longer have control
over their property. Where there is no receiver, the mentally disordered person's
trust will be held void, unless it was made during a lucid period when the person
was capable of understanding their actions.
Corporations and statutory bodies only have the powers granted to them by
their memorandum of association or authorising statute; if these do not
authorise the creation of trusts, any such trust will be held to be ultra vires.
17.4 Three certainties

Certainty refers to the three certainties required for a trust to be valid. The trust
instrument must show certainty of intention to create a trust, certainty of what
the subject matter of the trust is, and certainty of who the beneficiaries (or
objects) are.431
Where there is uncertainty for whatever reason, the trust will fail, although the
courts have developed ways around this. For trust to be valid, the trust
instrument must show certainty of intention, subject matter and object.432
430
H., Alastair (2009). Equity and Trusts (6th ed.), Rout ledge-Cavendish, ISBN 0-415-
49771-X
431
H., Alastair (2009). Equity and Trusts (6th ed.), Routledge-Cavendish, ISBN 0-415-
49771-X
432
E. Richard; Nigel Stockwell (2007). Trusts and Equity (8th ed.). Pearson
Longman, ISBN 978-1-4058-4684-4
251
Certainty of intention means that it must be clear that the settlor

or testator wishes to create a trust; this is not dependent on any particular
language used, and a trust can be created without the word "trust" being used
or even the settlor knowing he is creating a trust.
Since the 1950s, the courts have been more willing to conclude that there was
intention to create a trust, rather than hold that the trust is void. Certainty of
subject matter means that it must be clear what property is part of the trust.
Historically the property must have been segregated from non-trust property;
more recently, the courts have drawn a line between tangible and intangible
assets, holding that with intangible assets there is not always a need for
segregation.
Certainty of objects means that it must be clear who the beneficiaries, or

objects, are. The test for determining this differs depending on the type of trust;
it can be that all beneficiaries must be individually identified or that
the trustees must be able to say with certainty, if a claimant comes before them,
whether he is or is not a beneficiary.
A trust can be as well created by or on behalf of a minor with the permission of a

principal civil court of original jurisdiction. Apart from a human being, a
company, firm, society or association of persons is also capable of creating a
trust.433
433
http://www.advocatekhoj.com/library/lawareas/trust/private.php?Title=Trust&STitle=Pri
vate,%20Public%20and%20Religious%20Trusts. Retrieved on 25th September 2016
252
17.5 Properties for trust creation

The subject matter of the trust is called trust property. Any property, which can
be transferred to the beneficiary, can be subject matter of the trust.434
But a mere beneficial interest under a subsisting trust cannot be the subject
matter of a trust. Certain other properties also cannot form subject matter of a
trust. Some of these are as follows:-
a. Chance of receiving property such as chance of a relation to obtain

legacy on death of a kinsman or chance of an heir apparent to succeed
to an estate.
b. Mere right to sue.
c. Public office or the salary of a public officer whether after or before it has
become payable.
d. An interest in property restricted in its enjoyment to the owner personally.
e. Stipends allowed to military, naval, air force and civil pensioners of state or
political pensions.
17.6 Formalities
A trust may be created by express declaration of trust, transfer, and exercise of
power of appointment, contractual or statute.
17.6.1 Express declaration
434
http://www.advocatekhoj.com/library/lawareas/trust/private.php?Title=Trust&STitle=Pri
vate,%20Public%20and%20Religious%20Trusts. Retrieved on 25th September 2016
253
The most efficient method of establishing a trust is by a written document since

it mitigates the possibility of misunderstanding or legal challenge to the validity
of the trust.
However there is no legal necessity for this document, as it is possible to create

a trust by simply verbal communicating a desire to do so.
A valid declaration of trust over personal property will not require any formality,
provided it can be demonstrated that the settlor intended to create an immediate
trust over the property.
In relation to property to be made subject to a trust on death, in relation to

trusts of land, and in relation to certain other property, there will be statutory
formalities to be satisfied before a valid trust will be created.435
Specifically in the case of unit trusts and inter-vivos trusts, these cannot be
created by an oral declaration. Both of them are generally created by a written
instrument. One of the key distinctions that can be made in creating a trust is
that between inter-vivos (or living) trust and testamentary trusts.
A living trust is created during the lifetime of the settlor and comes into effect
within this period. On the other hand, a testamentary trust is a trust created by
will, which comes into effect only upon the settlor‟s death. 436
These two may have significant differences in the formalities implied for creating
and changing the trust as well as the costs involved. There are also differences
435
Larry E. Ribstein, Making Sense of Entity Rationalization, 58 Bus. L. 1023 (2003)
436
Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 Duke L.J. 557 (1992)
254
that may be significant in certain circumstances, depending upon the specific

objectives that one is trying to achieve.
17.6.2 Transfers of property
When the property is transferred to a trustee for the befit of another person or
the settlor, trust is created. Legal title passes to the trustee and the beneficiary
receives equitable title in the property.
The settlor has no remaining interest in the property. A transfer for trust can be
executed by a deed or some other arrangements during the settlor‟s life time.
This is called inter vivos trust or living trust.
17.6.3 Powers of Appointment
A power of appointment is the right that one person called the donor gives in a
deed or will to another, the donee, to appoint or select individuals, the
appointees, who should benefit from the donor‟s will, deed of trust.
A person holding a general power of appointment can create a trust according to

the donor‟s direction by appointing a person as trustee to hold the trust property
for anyone, including herself or her estate. If that person holds a special power
of appointment she cannot appoint herself.
17.6.4 Contracts trusts
There are trusts which can be created by the contractual arrangements.
255
For instance a person can take life insurance policy on his own life and pay
premiums on the policy. The insurer in the policy promises to pay proceeds of
the policy to an individual named by the insured.
The trustee is given the duty to support the beneficiary of this trust from the
proceeds during the beneficiary life. The insured as trustor creates by entering
into a contract with the insurance company in favour of a trustee.
The trust is called an insurance trust and is created when the insurance company
issues its policy.
17.6.5 Statute
In other circumstances the statutes of parliament can provide for the creation of
trusts in various circumstances. This occurs when the person dies, the statute
provide that a right of action exist in the surviving spouse or executor or
administrator of the deceased person with recovery held in the trust for
designated beneficiaries.
17.6.6 Judicial implication
This is trust arises by operation of law. It is the court that makes an imposition
on the parties to create a trust, regardless their intentions.437 When the court
decides that a constructive trust should take place, it is usually obliged that a
person transfers title and possession of property to the beneficiary i.e. the
person chosen by the court.
437
http://www.inbrief.co.uk/property-law/english-constructive-trust/ retrieved 25th
September 2016
256
A constructive trust is said to be an equitable remedy by court with the purpose

of preventing someone who has unfairly got hold of the title to a property from
being unjustly enriched.438
17.7 Summary
In above chapter we have learnt that a trust is created when the
person creating the trust, termed the author of the trust indicates
with reasonable certainty by any words or acts. Capacity refers to
the settlor's ability to create a trust in the first place; generally
speaking, anyone capable of holding property can create a trust.
There are exceptions for statutory bodies and corporations, and
minors who usually cannot hold property can, in some circumstances,
create trusts. Certainty refers to the three certainties required for a
trust to be valid. The trust instrument must show certainty of
intention to create a trust, certainty of what the subject matter of the
trust is, and certainty of who the beneficiaries (or objects) are. Where
there is uncertainty for whatever reason, the trust will fail, although
the courts have developed ways around this. For trust to be valid,
the trust instrument must show certainty of intention, subject matter
and object. Any property, which can be transferred to the beneficiary,
can be subject matter of the trust. But a mere beneficial interest
under a subsisting trust cannot be the subject matter of a trust. A
trust may be created by express declaration of trust, transfer, and
438
Frances H. Foster, American Trust Law in a Chinese Mirror, 94 Minn. L. Rev. 602, 621-
50 (2010)
257
exercise of power of appointment, contractual or statute or judicial

implication.
17.8 Activities
(i) Capacity for trust creation
(ii) Certainty
2. Illustrate the three certainties necessary for trust creation.
3. Discuss formalities for the creation of trust.
4. Describe capacity for the creation of trust.
17.9 References

(2001) 117 LQR

2004).
258

Yale L. J. 698, 702 (1982)



259
CHAPTER EIGHTEEN
PARTIES TO TRUST AND THEIR ROLES
18.0 Introduction
A trust is a relationship whereby property is held by one party for the benefit of
another. A trust is created by a settlor, who transfers property to a trustee. The
trustee holds that property for the trust's beneficiaries. Trusts exist mainly in
common law jurisdictions and similar systems existed since Roman times439.
This chapter provides understanding on the parties in the trusts. Each party shall
be described as well as its roles in the trust. However the powers and duties of
the parties are going to be described in this chapter.
18.1 Objectives
 Acquired basic knowledge of concepts such as settlor,

beneficiaries, and trustees.
 Acquainted with knowledge and skills to explain the nature,
capacity and role of settlor.
 Acquainted with ability to describe rights and nature of
beneficiaries.
 Developed competency to account for rights and responsibilities of
trustees.
439
Scott, Austin, Importance of the Trust, U. Colo. L. Rev. Retrieved 6 April 2014
260
18.2 Parties to trust

There are three main parties to any trust created. These are settlor or trustor as
the one who creates the trust. Another is trustee; one to who trust is created.
Third party is beneficiary; the one for who trust was created.
18.2.1 Settlor
Settlor is a person who settles property on trust law for the benefit of
beneficiaries. In some legal systems, a settlor is also referred to as a trustor, or
occasionally, a grantor or donor.
Settlor can be an owner of property that places property into trust turns over
part of his or her bundle of rights to the trustee, separating the property's legal
ownership and control from its equitable ownership and benefits.
Trusts are frequently created in wills, defining how money and property will be
handled for children or other beneficiaries. Where the trust is a testamentary
trust, the settlor is usually referred to as the testator.
A trust can be created to any person who is of the age of majority and is of
sound mind, and is not disqualified by any law.
The settlor may also be the trustee of the trust (where he declares that he holds
his own property on trusts) or a third party may be the trustee (where he
transfers the property to the trustee on trusts).
261
Capacity to be a trustor is generally co-extensive with the ability to hold and

dispose of a legal or beneficial interest in property. In practice, special
considerations arise only with respect to minors and mentally incapacitated
persons.
A settlor may create a trust by manifesting an intention to create it. In most

countries no formalities are required to create an inter vivos trust over personal
property, but there are often formalities associated with trusts over real property
or testamentary trusts.
The words or acts of the settlor must be sufficient to establish an intention that
either another person or the settlor himself shall be trustee of the property the
beneficiary; a general intention to benefit another person on its own is sufficient.
These formalities apply to express trusts only, and not to resulting, implied or
constructive trusts.
18.2.2 Trustee
Therefore the following persons can be the following:-
i. Any person who is capable of holding property can be appointed a

trustee.
ii. A person has capacity to hold property if such a person is capable of
administering the property effectively and efficiently with
ordinary prudence. Depending upon the nature of the trust, if trustee is
required to play a passive and role without any scope of discretion a
minor may as well be appointed as trustee
262
iii. However, where the trust involves exercise of discretion such as trust
requiring sale of property or its investment, the trustee should be of the
age of majority, of sound mind and should not be disqualified by any
law.
iv. A Corporation, a company or association of persons may as well
be appointed as trustee
18.2.2.1 Meaning
Trustee is the legal owners of the trust's property but have a fiduciary duty to
beneficiaries and various duties, such as a duty of care and a duty to inform.
The trustees administer the affairs attendant to the trust.
The trust's affairs may include prudently investing the assets of the trust,
accounting for and reporting periodically to the beneficiaries, filing required tax
returns, and other duties.
In some cases dependent upon the trust instrument, the trustees must make
discretionary decisions as to whether beneficiaries should receive trust assets for
their benefit.440
18.2.2.2 Powers of trustee

Powers are crucial to the effective performance of the trustees‟ duties and except
trustees can exercise discretions to some margins in appropriate cases may
render the duties of a trustee almost an impossible task.
440
Hudson, A., (2003). Equity and Trusts (3rd ed.), Cavendish Publishing ISBN 1-85941-
729-9
263
The trustee‟s duty of care and management however makes it imperative on him
to give serious consideration to insurance but where the trustee after such
consideration decides not to insure he will not be liable for any loss or damage
resulting to the trust property.441
It is also allowed that trustees can delegate their duty where what is being
delegated was for a third party to merely carry out things already agreed by the
trustees. It is important to note however that a trustee cannot delegate the
exercise of his discretion except if this is expressly permitted by the trust
instrument.442
Where the trust makes it imperative for the trustee to sell, then trustee has an
obligation to sell the trust property and in that case, he has more than mere
power to do so.
Irrespective of whether the trust instrument makes it obligatory for the trustee to
sell, he can nonetheless exercise discretion to postpone sale and adopt the usual
means of sale. A trustee for sale however has power to sell by auction. 443
Trustees have powers to sever and apportion any blended trust funds or
property, to pay or allow any debt or claim on evidence he or they think
sufficient, accept any composition or any security real or personal any debt or
441
Bailey v. Gould (1840) 54 E.R. 479
442
Robson v. Flight (supra)
443
Hayton, D.J., Hayton & Marshall Commentary and Cases on the Law of Trusts and
Equitable Remedies, London: Sweet & Maxwell. (2001)
264
property claimed and to compromise, compound or abandon or submit to

arbitration any debt or claim relating to the trust or estate. 444
Trustees have powers of maintenance to make necessary provisions for the

benefit of beneficiaries whose interests under the trust property are yet to
mature.445
For instance, under a discretionary trust, a trustee can entertain claims brought
by a beneficiary by exercising his discretion in favour of the beneficiary although
the beneficiary is not as of right entitled to a fixed or any income from the trust
property.446
18.2.2.3 Duties of trustees

A trustee has many rights and responsibilities which vary based on the
jurisdiction and trust instrument. If a trust lacks a trustee, a court may appoint a
trustee.
A trustee may be held personally liable for problems, although fiduciary liability
insurance similar to directors‟ and officers‟ liability insurance can be purchased. 447
When a trustee is appointed and he accepts to act, he should ascertain what the
trust property is and make sure that the same is vested in him.
444
De Cordon (1879) 4 App. Cas. 692.
445
Law Commission Review of the Law of Trusts – Preferred Approach (NZLC IP31, 2012)
at ch 4; Law Commission the Duties, Office and Powers of a Trustee: Review of the Law of
Trusts – Fourth Issues Paper (NZLC IP26, 2011) at ch 5.
446
Hardy v. Slow [1975] 2 All E.R. 1057.
447
Hayton, D. J., and Marshall's Commentary and Cases on the Law of Trusts and Equitable
Remedies (12th ed.). Sweet & Maxwell, (2005)
265
In other words, the trustee must inquire about the whereabouts of the trust
property, locate them and secure them by taking possession of them.
A trustee has a duty to invest the trust fund in order to grow it and ensure that
the fund is not eroded and can invest the trust fund as the trust investment or
law may permit.
For this purpose, the law has categorized some investments in which trustees
may invest. A trustee must take such take such due care as an ordinary prudent
man would take when investing trust property.448
After assuming responsibility for the management of the trust property for the
benefit of others, trustees cannot shift their duties on others and even where
they employ agents, their responsibility to the beneficiaries is not affected unless
permitted by trust instrument.449
A trustee has the duty to act gratuitously that means without earning any
remuneration.450
Trustees however earn remuneration if a provision to that effect is reserved in

the trust instrument and the court can grant an order to that effect.
In addition, statutes may in some cases authorize trustees to earn remuneration,

especially in respect of particular trustees.
448
Jegede, M.I., Law of Trusts, Bankruptcy and Administration of Estate. Lagos: MIJ
Professional Publishers Limited, (1999)
449
Robson v. Flight (1863) 4 De G.J. & S. 608; Re Airey (1897) 1 Ch. 164
450
Barrett v. Hartley (1866) L.R. 2 Eq. 786
266
It is a cardinal duty of a trustee to provide accounts of the trust property and

equally furnish necessary information as regards the same, as may be required
by the beneficiaries.451
18.2.3 Beneficiary
When trust is created, it should indicate to whom such trust is created that
means who will be the beneficiary of the created trust. Hence the following can
be ones to whom the trust can be created:-
i. Every person capable of holding property such as a human being,

corporation, Company and even a state can be made beneficiary of a
trust.
ii. An unborn person can also be made beneficiary.
However, a proposed beneficiary is not bound by the desires of the person

creating the trust. Such a proposed beneficiary can renounce his interest
under the trust by either making a disclaimer addressed to the trustee or
by setting up a claim inconsistent with the trust.
18.2.3.1 Meaning of beneficiary

The beneficiaries are beneficial (or equitable) owners of the trust property. Either
immediately or eventually, the beneficiaries will receive income from the trust
451
O’Rourke v. Darbyshire [1920] A.C. 581 at 619
267
property, or they will receive the property itself. The extent of a beneficiary's
interest depends on the wording of the trust document.452
18.2.3.2 Rights of beneficiaries
18.2.3.2.1 Rents and profits of trust property

Unless the trust instrument expresses a different intention, a beneficiary has a
right to the rents and profits of the trust property. One beneficiary may be
entitled to income for example, interest from a bank account, whereas another
may be entitled to the entirety of the trust property when he attains the age of
twenty-five years. The settlor has much discretion when creating the trust,
subject to some limitations imposed by law.
18.2.3.2.2 Execution of intention of settlor

Again, the beneficiary has the right to ensure that the intention of the author of
the trust is specifically executed to the extent of the beneficiary's interest
therein.
18.2.3.2.3 Compel trustee to perform duties

Accordingly, a beneficiary can compel the trustee to perform any particular act of
his duty or can as well restrain the trustee from committing any contemplated or
probable breach of trust.
18.2.3.2.4 File a suit to execute trust

If no trustees are appointed or all the trustees die, disclaim or are discharged or
where for any other reason the execution of a trust by the trustee becomes
452
Hayton, D. J., and Matthews, P., (2006). Underhill and Hayton's Law Relating to Trusts
and Trustees (17th ed.), Butterworths
268
impracticable, the beneficiary can file a suit for the execution of the trust. In
such a circumstance, the court executes the trust until a trustee is appointed for
the same.
Where the beneficiary or any other person who has a right of action in respect of
the breach of trust is under a particular disability, the right of action will not be
deemed to accrue until the disability is removed or ceases. However, where a
beneficiary who is of full age has acquiesced or assented to the breach, then no
action will lie against the trustee.
18.3 Summary
In above chapter we have learnt that a trust is a relationship whereby
property is held by one party for the benefit of another. A trust is
created by a settlor, who transfers property to a trustee. The trustee
holds that property for the trust's beneficiaries. There are three main
parties to any trust created. These are settlor or trustor as the one
who creates the trust. Another is trustee; one to who trust is created.
Third party is beneficiary; the one for who trust was created. Settlor
is a person who settles property on trust law for the benefit of
beneficiaries. A trust can be created to any person who is of the age
of majority and is of sound mind, and is not disqualified by any law.
Trustee is the legal owners of the trust's property but have a fiduciary
duty to beneficiaries and various duties, such as a duty of care and a
duty to inform. The trustees administer the affairs attendant to the
trust. The beneficiaries are beneficial (or equitable) owners of the
269
trust property. Either immediately or eventually, the beneficiaries will

receive income from the trust property, or they will receive the
property itself. The extent of a beneficiary's interest depends on the
wording of the trust document.
18.4 Activities
(i) Settlor
(ii) Trustee
(iii) Beneficiary
2. Illustrate capacity of settlor.
3. Discuss rights of the beneficiaries in the trust.
4. Describe rights and duties of the trustee in the trust.
18.5 References

(2001) 117 LQR

270
2004).

Yale L. J. 698, 702 (1982)



271
CHAPTER NINETEEN
BREACH OF TRUST AND ITS REMEDIES
19.0 Introduction
Due to the fiduciary nature of the trustee‟s duties, a breach of trust will be
deemed to have occurred where the trustee has failed in his duties as contained
in the trust instrument, as imposed by equity or by statute. If a trustee failed in
his duties to the beneficiaries under the trust, a breach of trust has also
occurred. Where as a result of his breach the beneficiaries suffered any loss; he
will be liable to make good such loss to the beneficiaries.
This chapter focuses on the how breach of trust arises as well as what are
available remedies for the breach of trusts. The circumstances for the occurrence
of breach of trust are part of this chapter and each remedy shall be explained to
expand the understanding on the law of trust.
19.1 Objectives
 Acquired basic knowledge of concepts such as breach of trust,

remedies, injunction, tracing etc.
 Acquainted with knowledge and skills to describe the basis of the
breach of trust.
 Acquainted with ability to describe liabilities of the trustee upon the
breach of trust.
272
 Developed competency to account for remedies available upon the

breach of trust.
19.2 Breach of trust

A trustee is personally responsible for any breach of trust committed by him such
that a breach by a trustee does not necessarily make others liable. A co-trustee
will however be liable where his negligence of duties facilitates the breach
committed by the other trustee.
19.2.1 Meaning of breach of trust
A violation by a trustee of a duty the trustee owes to a beneficiary is a breach of

trust. If the trustee fails to carry out the terms of the trust or falls short in his
fiduciary obligation to the beneficiaries, then he may be liable for breach of trust.
A breach of trust claim is more likely to be filed if they perceive that their benefit
is less because of mismanagement of the trust's assets, self-dealing by the
trustee, or the lack of impartiality in distributing the benefits of the trust. 453
A trustee is subject to a number of duties, of both a fiduciary and non-fiduciary

nature. A breach of trust will have occurred when „the trustees made decisions
which they should not have made or failed to make decisions which they should
have made.
453
Davies, Paul S., Remedies for Breach of Trust (July 2015). The Modern Law Review, Vol.
78, Issue 4, pp. 681-694, 2015, Available at
SSRN: http://ssrn.com/abstract=2625830 or http://dx.doi.org/10.1111/1468-2230.12134
273
In Nestle v National Westminster Bank plc. Stoughton LJ recognised that it

may be difficult to prove that either a trustee had made a decision when he
should not have done so, or failed to make a decision when he should have done
so. The difficulty of proving either event, however, was not a reason to absolve a
beneficiary from proving it.
19.2.2 Basis of breach of trust
Trustee has a duty to administer the trust with skill and care as a person of
ordinary prudence would use in dealing with his or her own property and to be
loyal to the beneficiaries.
The trustee is a fiduciary for the beneficiaries. Any actions taken by the trustee
are viewed in respect to these duties and to the trustee's fiduciary obligation.454
The focus is on what a reasonable person would do to accomplish the trust's

objectives, not the trustee's subjective intentions.
For instance, if the trust document stipulates that the beneficiaries are to receive
enough income for their comfort and support, then the trustee has a duty to
inquire into the condition of each beneficiary to determine their needs.
19.2.3 Circumstances of breach of trust
The trustee has a duty to avoid conflicts of interest where it may deal with a
third-party buyer where the trustee has a relationship that may affect the
454
274
assessment of the proposed transaction. If the transaction involves a possible

conflict of interest but is not self-dealing then the transaction is assessed to see
if it was reasonable and fair under the circumstances before any liability is
attached.
The trustee is also guilty of breach of trust because of commingling of the trust
funds with his own, because it makes the funds more difficult to trace and could
subject them to the personal creditors of the trustee.455
The trustee may also be liable for breach if the trustee consents to an action by
a co-trustee that constitutes a breach, or negligently fails to stop or try to stop
co-trustees from engaging in the action that constitutes a breach, since a
trustee's fiduciary duties include monitoring the conduct of co-trustees. Failure to
monitor the actions of co-trustees or delegating one's non-ministerial
responsibilities to co-trustees constitutes a breach of trust.
When one trustee leaves a matter to a co-trustee without enquiring as to what

has happened and a breach of trust occurs. If one trustee is held liable, the
other trustees will share the liability, unless the trustee acted in bad faith or
benefited personally from the breach of trust.
For example, in Hale v Adams trust property was sold and the money received
by only one of the trustees. The money was then lost by that trustee. The
trustee who did not receive the money made no enquiry of the receiving trustee
about what had happened to the sale proceeds.
455
275
The court held that both trustees were liable for breach of trust. Effectively, both
trustees had received trust property when the property was sold and even the
„innocent‟ trustee should be responsible for its loss
Where a trustee allows the trust funds to remain in the sole control of a co-
trustee, he or she will be liable for breach of trust. In English v Willats, trust
property was sold but the sale proceeds were paid only to one of two trustees.
The non-receiving trustee was held liable to make good the loss to the trust
fund.456
Registered Trustees of Tanzania Assemblies of God v. William Lusito

and Emmanuel Lazaro457
The court held that the contention that the respondents could not properly
counterclaim against the appellants for breach of trust without first seeking the
written consent of the Attorney General lacked basis, because the relevant
section 67 of the Civil Procedure Code and Section 18 of the Trustees'
Incorporation Act only apply if the other party is a trustee.
19.3 Liability
Liability for breach of trust is necessary to enable trustee to be alive to their
responsibilities and the graduation of the liabilities by measuring the same is
consistent with deterrence of trustees from committing serious acts of beaches.
456
457
1990 TLR 26 (CA)
276
The trust property and the beneficiaries are equally protected by the prohibited
acts and remedies that are available to the beneficiaries.
Section 13 of Trustee‟s Incorporation Act458 provides that all trustees

incorporated, notwithstanding their incorporation, be chargeable for such
property as shall come into their hands or which might by the exercise of due
diligence have come into their hands and shall be answerable and accountable
for their own acts, receipts, neglects and defaults, in the same manner and to
the same extent as if no such incorporation had been effected.
19.3.1 Nature of liability
Trustee‟s liabilities are jointly and severally but in an action concerning the
liability of trustees, the beneficiary must joint all the trustees. In cases of breach
of trust, the trustees and the third parties who committed the breach are all
liable.459
Where a trustee has been made liable for a breach of trust which was not due to
his fault, he can make a claim for reimbursement from the other trustees.460 A
trustee in some cases can claim indemnity for damages sustained by him from
the co-trustees but such damage must not be due to his fault.461
Also, where a beneficiary has successfully sued a trustee liable for a breach of
trust, he is entitled to contribution from his co-trustees. A trustee/beneficiary
458
[CAP 318 RE 2002]
459
See Cowper v. Stoneham (1893) 68 L.T. 18.
460
See Bahin v. Hughes (supra).
461
See Re Partington (1887) 57 L.T. 654
277
who has committed a breach of trust is not entitled to his beneficiary interest
until he has remedied such breach.462
19.3.2 Limitation of liability
For a trustee to be liable for breach of trust, it must be shown that the trust fund
has suffered loss. A true loss must be shown to have occurred from the actual
decisions that the trustee took.
It is not enough to demonstrate that the trust fund might possibly have
increased more in value had the trustee taken different decisions,
However, a trustee is generally not liable to the beneficiary for breach to the
extent that the trustee acted in reasonable reliance upon the provisions of trust.
A trustee who despite having acted honestly and reasonably was nonetheless
found for breach of trust, he may be granted reprieve by being relieved wholly or
in part from personal liability. The court has the discretion to relieve a trustee of
personal liability and this will depend on the facts and circumstances of each
case.463
19.3.3 Personal liability of trustee
A trustee is not personally liable for torts committed in the course of the
administering the trust unless the trustee was personally liable. The trustee is
also not personally liable for any breach of contract entered into as a fiduciary of
462
See Re Dacre (1916) 1Ch. 344
463
See Re Pauling S.T. (1964) Ch. 303
278
the trust. However, a claim based on the contract can be asserted against the
trustee in the trustee's fiduciary capacity.464
19.4 Remedies for breach of trust

Traditionally, equity made a distinction between the two remedies of restoring
the trust property and equitable compensation. The terminology can be
confusing.465
Both remedies are examples of compensation in the broadest sense of making

good a party‟s loss. „Restoration‟ refers to equity holding the trustee to account
to the trust fund for a loss that he has caused to the trust.
The remedy is for the trustee to restore to the trust fund either the property that
he has caused to be taken from it or a monetary payment instead. The trust fund
must be restored to its full value as long as the trust subsists.
Equitable compensation refers to compensation payable by the trustee to a

beneficiary instead of to the trust fund and is usually payable after the trust has
come to an end.
The basic remedy available against trustees is an order requiring them to

perform their obligations under the trust, or to refrain from breaching those
obligations.
464
W. C. Spaulding, Breach of trust, This matter, 2016
465
279
But it is impossible to make an order requiring a trustee to perform the trust

obligations if the trust property is no longer in the trustee's hands. Where this is
the case, the law requires the trustee first to repair the loss to the trust fund and
then to perform his duties regarding it.
The trustee's liability to make up the trust fund in this way is an aspect of his
duty to „account‟. The trustee's liability to account thus allows the trust objects to
demand that he make up a shortfall in the trust assets, where that shortfall
stems from a breach on his part.
Injunction and receivership the court can make an order of injunction to

restrain a trustee from performing his duties in respect of the trust property, if
the trust property is endangered and a receiver may be appointed in respect of
the same.
The remedies of tracing the trust property into the hands of the trustee and
third parties may be available to a beneficiary. This remedy will be appropriate
where the trustee although is personally liable for the breach has no means to
make good the loss.
This remedy is available both at common law and at equity. Tracing in equity is
however a right in rem and for the beneficiary to be 98 able to exercise the right
to trace, there are some conditions that must be fulfilled.
Essentially, the conditions are that there must be fiduciary relationship involved
and the fund or property must be identifiable or in a form that it can be traced.
280
However, that the right to trace may be lost where the trust property has ceased
to exist, where the equitable owner cannot identify the property and where the
property has lost its distinct quality.466
19.4.1 Remedies against trustee
Section 14 (2) Trustee‟s Incorporation Act provides that the Registrar-General is

of the opinion that the trust property has been used, or misused in
circumstances which are prejudicial to the interests of members of the body
corporate or organisation in respect of which the trustee has been incorporated,
he may:-
i. suspend or remove the trustee and any person found in use or misuse
of such property
ii. appoint a receiver and manager or the Public Trustee to take care of
such property and run the day to day affairs of the body corporate or
organisation for a period pending appointment of the new trustee or
trustees
iii. freeze the bank account of that body corporate or organisation
iv. stop further action by the trustee or trustees in dealing with the
property of the body corporate or organisation
v. refer the matter to a police officer of the rank of Inspector or above for
further investigations with a view to taking further legal action in a
court of law
466
See Taylor v, Blakelock (1886) 32Ch.D. 560.
281
vi. Pursue trustee or trustees who have committed breach of trust and to
recover trust property or seek damages.
If the trustee sells property for too low a price, then the trustee may be liable for
the difference between the actual sale price and the price that should have been
realized. If the trustee sells property that he was not authorized to sell, and the
property appreciates, then appreciation damages will be awarded. Appreciation
damages constitute the difference between the sale price and the value the
property as of the date of the court's decree.
The trust pursuant rule provides a remedy for breach of trust when the
trustee disposes wrongfully of trust property in exchange for other property the
court creates a constructive trust of the property for the beneficiaries. The
constructive trust is also imposed on any transferees who take the property with
notice of the breach or who give no value or little value for the property.
The make-whole standard is implemented by holding the trustee liable for

any losses incurred and gains foregone as a result of the breach or any profits
earned by the trustee because of the breach.
19.5 Summary
In above chapter we have learnt that due to the fiduciary nature of
the trustee‟s duties, a breach of trust will be deemed to have
occurred where the trustee has failed in his duties as contained in the
trust instrument, as imposed by equity or by statute. If a trustee
failed in his duties to the beneficiaries under the trust, a breach of
trust has also occurred. Where as a result of his breach the
282
beneficiaries suffered any loss, he will be liable to make good such

loss to the beneficiaries. A violation by a trustee of a duty the trustee
owes to a beneficiary is a breach of trust. If the trustee fails to carry
out the terms of the trust or falls short in his fiduciary obligation to
the beneficiaries, then he may be liable for breach of trust. Liability
for breach of trust is necessary to enable trustee to be alive to their
responsibilities and the graduation of the liabilities by measuring the
same is consistent with deterrence of trustees from committing
serious acts of beaches. The trust property and the beneficiaries are
equally protected by the prohibited acts and remedies that are
available to the beneficiaries. A trustee who despite having acted
honestly and reasonably was nonetheless found for breach of trust,
he may be granted reprieve by being relieved wholly or in part from
personal liability. The court has the discretion to relieve a trustee of
personal liability and this will depend on the facts and circumstances
of each case. Traditionally, equity made a distinction between the two
remedies of restoring the trust property and equitable compensation.
Both remedies are examples of compensation in the broadest sense
of making good a party‟s loss. „Restoration‟ refers to equity holding
the trustee to account to the trust fund for a loss that he has caused
to the trust.
283
19.6 Activities
(i) Breach of trust
(ii) Remedies
2. Illustrate the remedies available for the breach of the trust.
3. Discuss the nature and basis of the breach of trust.
4. Describe nature, extent and limitation of the liability of trustee
when there is breach of trust.
19.7 References
Trustee‟s Incorporation Act, [CAP 318 RE 2002]

(2001) 117 LQR
Parkinson, P. „Reconceptualising the Express Trust‟ [2002] 61 CLJ

65

2004).
284

Yale L. J. 698, 702 (1982)



285
CHAPTER TWENTY
MODIFICATION AND TERMINATION OF TRUST
20.0 Introduction
A trust usually lasts a long time, and during that time, things change: the needs
of beneficiaries may change, the law may change, particularly tax laws,
investment opportunities may change, or there may have been a mistake in the
construction of the trust or in its administration.
Hence, the law has evolved various methods to modify or terminate a trust. In
most cases, it is the beneficiaries who seek to change the trust, but the law
cannot allow the beneficiaries to change the trust on their caprice otherwise,
there would be no incentive for a settlor to create the trust in the first place.
Hence, the law generally considers the changes only in the light of the settlor's
intent.
The chapter provides understanding on the modification and termination issues

such as grounds, effects, formalities of trust so as to enable ourselves to equip
ourselves with the skills on the termination and modification of the trusts.
20.1 Objectives
 Acquired basic knowledge of concepts such as trust modification and

trust termination.
 Acquainted with knowledge and skills to grounds for the trust
286
modification and trust termination.

 Acquainted with ability to describe ways through which the trust
modification and trust modification.
20.2 Modification and termination of trust

An irrevocable trust cannot be modified or revoked without a court order, and
usually requires the consent of the settlor, if still alive, and the beneficiaries. If
the settlor and the beneficiaries agree to modify or terminate the trust, then the
trustee has no standing to object.
A trust document governs both the administration of the trust and the
distribution of the trust property. Courts are more apt to modify the trust's
administration than its distribution scheme, since the trust is only administered to
carry out the settlor's primary purpose: the distribution of its property to its
beneficiaries.
20.3 Consent of beneficiaries upon modification of trust

Even when the court agrees to modify or terminate a trust, the consent of all
beneficiaries may still be necessary but some beneficiaries may not be born yet
or may be too young to give consent.
So where the consent of all beneficiaries is needed or desirable, the law has
developed various methods to represent unborn and minor beneficiaries.
Traditionally, common law uses guardian ad litem, who is someone appointed by

the court, usually an attorney, to represent the unborn or minor child.
287
However, there has been much criticism that guardians ad litem often consider
only the economics of the trust when they should also consider the settlor's
intent and the family. Another major drawback to the guardian ad litem is the
cost of representation.
Many jurisdictions are now allowing virtual representation by the adult

beneficiaries, since their interests and the interests of the unborn and minor
children are usually aligned.
In re Mohamed Husein Sharif Jiwa467, Settlor established a trust for the

benefit of his wife and children. The income was to be used for their
maintenance education and advancement until all of the children attained their
majority. At that time, the property was to be sold and the proceeds distributed
to the beneficiaries.
In this application the trustees requested authorization to depart from the terms
of the trust and distribute the trust property itself rather than selling the property
and distributing the proceeds. There was evidence that all of the beneficiaries
preferred such a disposition and that it was in their best interests.
The court held that in the present case these conditions were met and the
beneficiaries all consented to the breach. The distribution of the trust property
was ordered
467
(1967), HCD n. 238
288
20.4 Trust Modification

Since the trust was created with certain objectives, there must be a reasonable
basis for modifying the trust so that it can fulfill its objectives more efficiently. In
modifying a trust, a court may modify either the terms of the trust or its
administration. The administration of the trust may be modified if it has become
impracticable or inefficient.
Where the trust is changed, it is the duty of the trustee to notify the
Administrator General about the changes. This is accentuated in section 19 of
Trustee‟s Incorporation Act provides that trustees incorporated shall within one
month notify to the Administrator-General in the prescribed manner:-
(a) the adoption of any resolution changing the constitution or rules of the
body or association, if any, by whom they were appointed, if and so far
as any such change affects the powers or duties of the trustees, or
their appointment or tenure of office, or the trusts to which they are
subject; and
(b) The executions of any deed, the making of any order, the exercise of
any power or any other act or happening by which the trusts to which
they are subject are changed.
20.4.1 Reason for trust modification
A trust may be modified if there is an unforeseen circumstance, such as changes

in the law or a beneficiary develops serious health problems, that substantially
impairs or defeats the settlor's intent, and all of the beneficiaries agree to the
modification.
289
A court will more likely approve the modification if it improves compliance with
the settlor's probable intent but will not necessarily approve of the change simply
because it is better for the beneficiaries.
With clear and convincing evidence that a trust or its administration is inefficient
in carrying out the intentions of the settlor because it was created based on a
mistake in fact or in law, the court may correct the trust document to better
reflect what the settlor intended at the time of the trust's execution.
20.4.2 Methods of trust modification
The court may also modify a trust and possibly make the modification retroactive
so that the settlor's tax objectives can be better achieved if the modification does
not conflict with the settlor's probable intent.468
Another means of modifying a trust is to terminate it and transfer the assets to

another trust, possibly under another state's laws, with better terms or under a
more permissive legal environment.
20.5 Trust termination

Trusts are a great way to manage property if persons don't think they'll be able
to manage property by themselves in the future. Nevertheless, trusts themselves
come to an end, sooner or later.
20.5.1 Grounds of trust termination
468
https://www.lexisnexis.com/uk/lexispsl/privateclient/document/393819/55KG-G8K1-
F18D-H2XS-00000-00/Trust+termination%E2%80%94overview. Retrieved on 25th
September 2016
290
A settlor can agree with the beneficiaries to terminate an irrevocable trust, even
if the trustee objects, but if the settlor is dead, then the court will try to
determine if the trust has an unfulfilled material purpose or if the trustee is
merely trying to extend the lifetime of the trust to earn more fees.469
In almost every case, however, the courts will not terminate the trust if it is a
spendthrift or support trust or a discretionary trust, or if any beneficiaries are
only to receive their benefit when they reach a certain age.
However, a court may still terminate a trust if it is in the best interest of the
beneficiaries or if there was a probate settlement with the heirs of the settlor and
the settlement included the termination of a testamentary trust.
A trust may also be terminated by the courts if it is uneconomical. Especially if

the trust has less worth of property, its cost of administration may easily
consume a large part of the trust. In these cases, the court will terminate the
trust and distribute the property immediately to the beneficiaries.470
20.5.2 Methods of trust termination
20.5.2.1 Revocation
The settlor may exercise a power of revocation or a power of appointment
reserved to them in the trust instrument. A trust can also be revoked by the
settlor's will. Under common law, the trust document must authorize it, but the
469
[aka Claflin doctrine, after Claflin v. Claflin, 20 N.E. 454 (Mass. 1889)]
470
https://www.lexisnexis.com/uk/lexispsl/privateclient/document/393819/55KG-G8K1-
F18D-H2XS-00000-00/Trust+termination%E2%80%94overview. Retrieved on 25th
September 2015
291
modern trend is to allow revocation by will unless the trust document expresses
otherwise.471
20.5.2.2 Invalidity declaration

Trust may be set aside under the provisions relating to the avoidance of
transactions at undervalue or to dispositions in fraud of creditors, on the ground
that the disposition was induced by fraud, duress, undue influence or mistake.
20.5.2.3 Dissolution of partnership that created

trust
In the case of matrimonial proceedings or proceedings on the dissolution of a
registered civil partnership, the court has power to:-
a. adjust interests in settlement

b. set aside a disposition intended to defeat a claim for financial relief
in such proceedings
c. set aside a settlement made in compliance with a property
adjustment order in matrimonial proceedings where this would
amount to a transaction at an undervalue in an insolvency
20.5.2.4 Lapse of time

When trust was created for certain period of time, such trust can be terminated
when the time for which it was created expires. Indeed, trusts can and do end
when the grantor specifies an end date or condition, and that condition is met.
471
http://lewislawoftrusts.lawbooks.cali.org/chapter/modification-and-termination-of-
trusts/. Retrieved on 25 th September 2016
292
For example, the grantor can say that a child gets the benefit of cash in a trust
until the child turns 18, or, alternatively, until the child graduates from college.
20.5.2.5 Consent of beneficiaries

The beneficiaries ending the trust by consenting and assenting that the trust for
whom they were created are terminated.
20.5.2.6 Failure of material purpose

As a result of particular events occurring, e.g. the subsequent failure or
satisfaction of the purposes of the trust, or the cessation of particular
circumstances for which the trust was created to provide.
20.5.2.7 Destruction of trust property

The easiest way a trust can end is that the trust property is exhausted. If the
trust property was cash or stocks, this can happen when all of the money, plus
interest, gets paid to beneficiary. If the property was some other asset, like a
house, then the trust may end when the house is destroyed or the trust itself
comes to an end.472
20.5.3 Effects of trust termination
Assuming there is still property in the trust, the trustee will work with the
beneficiary to distribute the remaining property. Some grantors (wisely) include
instructions in the trust instrument that say how the assets should be distributed.
472
http://estate.findlaw.com/trusts/how-does-a-trust-end.html. Retrieved on 20th
September 2016
293
When there are no instructions, the trustee and the beneficiaries must decide a
fair way of splitting up the assets. On the termination of the trust the trustees
are under a duty to distribute the trust assets to the right beneficiaries. Failure to
distribute to the correct beneficiary can subject the trustees to liability for breach
of trust.
20.6 Summary
In above chapter we have learnt that a trust usually lasts a long time,
and during that time, things change: the needs of beneficiaries may
change, the law may change, particularly tax laws, investment
opportunities may change, or there may have been a mistake in the
construction of the trust or in its administration. Hence, the law has
evolved various methods to modify or terminate a trust. In most
cases, it is the beneficiaries who seek to change the trust, but the law
cannot allow the beneficiaries to change the trust on their caprice
otherwise, there would be no incentive for a settlor to create the trust
in the first place. Hence, the law generally considers the changes only
in the light of the settlor's intent. Even when the court agrees to
modify or terminate a trust, the consent of all beneficiaries may still
be necessary but some beneficiaries may not be born yet or may be
too young to give consent. A trust may be modified if there is an
unforeseen circumstance, such as changes in the law or a beneficiary
develops serious health problems, that substantially impairs or
defeats the settlor's intent, and all of the beneficiaries agree to the
modification. In almost every case, however, the courts will not
294
terminate the trust if it is a spendthrift or support trust or a

discretionary trust, or if any beneficiaries are only to receive their
benefit when they reach a certain age. On the termination of the trust
the trustees are under a duty to distribute the trust assets to the right
beneficiaries. Failure to distribute to the correct beneficiary can
subject the trustees to liability for breach of trust.
20.7 Activities
(i) Trust modification
(ii) Trust termination
2. Demonstrate the grounds under which the trust can be modified
3. Discuss grounds for which the trust can be terminated.
4. Describe ways through which the trust can be terminated.
20.8 References

(2001) 117 LQR
295
2004).

Yale L. J. 698, 702 (1982)



296

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BY

I am deeply indebted to express my sincere and humble thanksgiving for various

Finally, I sincerely and heart fully extend my acknowledgment to Stella Msigwa,

 Indian Acts (Application) Ordinance, Cap. 2

 In the Matter of the Estate of Susan Kanini Kilonzo (deceased) Nairobi

 Registered Trustees of Tanzania Assemblies of God v. William Lusito and

This book has been prepared so as to provide general understanding on the

2.0 Introduction ................................................................................................................................... 14

3.4.4 Ambulatory ............................................................................................................................ 32

4.2.4 Mutual Will ............................................................................................................................. 46

6.0 Introduction ................................................................................................................................... 71

7.6 Approaches to Interpretation of Wills........................................................................................ 90

8.2.3.2 Islamic Inheritance Scenarios for Male Deceased ................................................. 113

GRANTS OF REPRESENTATION............................................................................................................ 136

11.1 Objectives .................................................................................................................................... 152

12.2.1.1 Meaning of citation ..................................................................................................... 169

12.4 Summary ...................................................................................................................................... 186

14.3 Court ............................................................................................................................................. 203

15.4 Summary ...................................................................................................................................... 229

16.2.8 Discretionary trusts ............................................................................................................ 243

18.2.1 Settlor ................................................................................................................................... 261

CHAPTER TWENTY ................................................................................................................................. 286

At the end of this chapter you should have:-

 Acquired knowledge and understanding of the basic concepts

differences between testate and intestate succession, partial

Succession refers to the transfer of title to property from an individual who is

This was considered and cemented by Per Owen, J in re Bradley's Estate4

1.3.1 Testate succession

1.3.2 Intestate Succession (intestacy)

The devolution of property shall be done according to the rules of intestacy.

manage and distribute the estate of deceased upon intestacy is called

1.3.3 Types of intestate succession (Intestacy)

1.3.3.1 Total intestacy

It is the category of intestacy which occurs when the following circumstances

(a) where a person dies without leaving a Will at all

1.3.3.2 Partial intestacy

Law of succession prescribe rules, principles and regulations affecting who is

1.5Nature of law of succession

In every system of law provision has to be made for a readjustment of things or

Succession, in the sense of the partition or redistribution of the property of a

Therefore the law of succession comprises of rules which govern devolution of

1.6Importance of law of succession

Law of succession provides an avenue for creditors to come forward seeking

Moreover, law of succession provides mechanism to determine the rightful

Furthermore, law of succession enables the transfer of property to another

1.7 Relationship between law of succession and other laws

1.7.1 Law of property and Law of succession

Law of succession involves transmission of property upon death of person to the

Also, prior determination of the succession there must be establishment of

1.7.2 Law of succession and Law of equity

Some of those doctrines of equity applicable to succession are conversion, no

1.7.3 Family law and law of succession

1.7.4 Law of trust and law of succession

Hence the nature of relationship between the personal representatives of the

In this chapter we have learnt about some introduction issues of law

1. Define the following terms:-

(iv) Law of succession

Scott, A. W., Importance of trust, 39 U. Colo. L. Rev. 177 (1966-

Garner B. A. (ed.), Black Law Dictionary, (West Group. St. Minn,

Razack, J. Inheritance and Succession, Rights of Women and

Mulla, Hindu Law (2), (Butterworths, New Delhi, 2001), 277

Musyoka, W. Law of Succession, Law Publishing (T) Ltd, Dar es

Rwebangira, M. K. and Mukoyogo, M. C., The law of Inheritance

SOURCES OF LAW OF SUCCESSION