Land as a Human Right: A History of Land Law and Practice in Tanzania

Chapter Five - Succession and the Law of Inheritance in Tanzania

Chapter Five Succession and the Law of Inheritance in Tanzania Inheritance is legal succession of property that occurs on a person’s death. Its purpose is to ensure continuity of disposal over property. Inheritance is a basic human right and any restriction to it is a contravene of constitutional law. - Dr. Andrea Polgar842 842 See “The Law of Inheritance” in Dr. Hidas and Partners Law Office Newsletter, Budapest, November 2001. The paper was accessed through the web, http//: www.hidasi.hu. (April 2007). 210 LAND AS A HUMAN RIGHT This topic covers one of the most controversial areas of land administration in Tanzania since it answers the difficult, but relevant question: what should be done with a person’s estate when he or she dies? James and Fimbo observe that this is a question which can never be avoided in any system of law.843 The immediate and appropriate answer to this question is that the property or the interests therein is distributed to the survivors. However, the bone of contention has always been on the determination of persons who are entitled to the distribution of the estate; the mode of distribution, and; the rights of other persons, say creditors if any, who may happen to have interests in the property of the deceased person. It becomes a serious problem if the deceased died intestate. In such a situation the law of inheritance is normally resorted to, as an essential tool to resolve the controversy formally and conclusively. As to how this branch of law works, Alun A. Preece observes, in summary, that there are three fundamental ways in which the law governs the distribution of property on death, that is to say: by will of the deceased (testator); by the model prescribed by law as on intestacy, and; through family provisions legislation under which the courts may vary the provisions of the will of the deceased, if insufficient provision is made for a spouse, children or other dependants of the deceased. This limits the testator’s freedom of testation.844 Basically, there are four main issues of great significance which need to be considered by whoever undertakes to address the above questions, namely: whether the deceased person has written a will (testacy) or not (intestacy); the issue on the applicable law; whether or not all the necessary procedures have been followed in administration of the deceased’s estate, and; the issue concerning the court with competent jurisdiction to hear and determine matters arising out of the process of administration of estate. The rest of the discussion in this chapter is pegged on these four issues. They are conversed elaborately with a professional echo so as to enable the audience to understand them by heart and, therefore, be able to follow the law on succession along its appropriate course. 843 JAMES, R.W and FIMBO, G.M, op cit, at p. 165. 844 PREECE, Alun A., “ The Impact of the Law of Inheritance on the Family”, A Paper Presented at the 7th Australian Institute of Family Studies Conference, Sydney Convention and Exhibition Centre, Darling Harbour Sydney, 24-26 July 2000, at p. 3. CHAPTER FIVE 211 Testacy, Intestacy and Freedom of Testation Testacy and Intestacy Defined When a person writes a will disposing his estate to one or many persons of his own choice, such as his survivors, and dies later, then we say, in law, that he has died testate. Immediately the word “testacy” comes into use in respect thereof. The deceased is called a testator and the person to whom the property in the deceased’s estate reverts is a “devisee” or “legatee”, depending on the nature of the property in the estate845 . In contrast, if a person dies leaving no will, or leaving a defective will, then we say he has died intestate, calling for the term “intestacy” to come in use in addressing the event. The most significant note that we should make is that none of the two situations of testacy and intestacy has been free from some legal wrangles. They have, more often that not, been issues of great concern and at times they have brought the legal minds to cross-roads. With respect to testacy, especially, two legal questions have always occupied the minds of lawyers: (1) what is a will? , and (2) what is a valid will in law? We can define a will in simple terms to mean a...