PROBATE - LECTURE 1 - LAW SCHOOL STUDENTS.pptx

Probate notes

1. THE LAW SCHOOL OF TANZANIA LS 108 PROBATE, ADMINISTRATION OF ESTATES AND TRUSTS

2. LECTURE ONE INTRODUCTION TO THE COURSE, JURISDICTION, CHOICE OF LAWS, PROTECTION OF ESTATES & EXECUTORS OF THEIR OWN WRONG

3. INTRODUCTION The course is all about life after death that involves the properties and the people we leave behind. Who is going to take charge of the properties (if any)? What is the procedure for so doing? Who is to benefit from the properties? Etc. – it is about administration of estates and succession.

4. B asic Concepts: Is administration of estates the same as succession? When a court is entertaining an application for the grant of probate or letters of administration, is it dealing with succession?

5. NOTE THE DIFFERENCE: When a person dies leaving behind an estate, someone (court) has to step in and appoint a trustee (administrator) to administer the estate. The jurisdiction of the court will depend on which law of succession applies to the administration of such estate.

6. LAWS GOVERNING SUCCESSION, PROBATE AND ADMINISTRATION OF ESTATES The two processes (Succession & Probate and Administration of Estates) are distinct, as such, even the laws governing them are different.

7. A: LAWS GOVERNING SUCCESSION: The community in Tanzania is diverse and so is the legal system governing succession. The diversity is based on ethnicity, religion or race; thus there are four competing legal systems on matters of succession:

8. Statutory Laws: 1.1 The Judicature and Application of Laws Act [Cap. 358]; 1.2 The Indian Succession Act of 1865 (ISA); 1.3 The Hindu Wills Act of 1870.

9. Note: - The two statutes made applicable by S. 14 of the JALA; - Reception date – 1 st Dec. 1920; - Future amendments do not apply – S. 17 of the JALA

10. - The ISA: - applies to C hristians and all those of European Origin; - does not apply to the estate of a deceased Moslem; - provides for equality among the heirs

11. Customary Laws: There are many tribal groupings in Tanzania, thus many customary laws. They apply: 2.1 to African members irrespective of their religious affiliation; 2.2 Some of the rules are codified and some are not;

12. See the Customary Law (Declaration) Order No. 4 of 1963; - the Order applies to all communities in the districts that are specified; - the rules apply to patrilineal communities which form 80% of the local population;

13. - the remaining 20% are matrilineal – their customary rules on succession are not codified hence little is known about them. 3. Islamic Law: 3.1 Sources of Islamic Law: - Quran, hadith, consensus..etc

14. 3.2 Application of Islamic Law in TZ: Several legislation provide for the application of Islamic law: - The Succession (Non-Christian Asiatic) Act, Cap. 28, see S. 6(1); - The Islamic Law (Restatement) Act, Cap. 375, read together with the Statements of Islamic Law, G.N. No. 222 of 1967;

15. - The Magistrates’ Courts Act, Cap. 11 [R.E. 2002], see S. 18; - The Law of Marriage Act, Cap. 29 [R.E. 2002]; - The Probate and Administration of Estates Act, Cap. 352 [R.E. 2002]. 4. The Hindu Law

16. B: LAWS RELATING TO ADMINISTRATION OF ESTATES: The Probate and Administration of Estates Act, Cap. 352. - This is the principal Act; - It applies to all estates irrespective of religion, ethnicity, or race of the deceased; - applies in testacy & intestacy.

17. - It is read/applied together with its Rules, i.e. Probate Rules; - It provides for, among other things, jurisdiction and procedure for dealing and handling probate and administration matters.

18. The Magistrates’ Courts Act, Cap. 11 [R.E. 2002]. - It provides for, among other things, categories of jurisdiction to deal with probate and administration of estates . 3. O ther complementary laws

19. JURISDICTION AND CONFLICT OF LAWS A: Jurisdiction: The PAE Act spells out jurisdiction of the courts in Ss. 2 to 6: The HC has jurisdiction in all matters relating to probate and administration. See Ss. 3 and 4 of the Act.

20. District Delegate: - A Resident Magistrate specifically appointed as such by the CJ; - He has jurisdiction to hear matters of probate and administration in the area where the deceased had his fixed place of abode at the time of his death; See S. 5 of PAEA + CJ’s Circular No. 1 of 2008

21. - scope of jurisdiction of a District Delegate depends on whether the matter is contentious or not [S. 5(2)] District Court: - Jurisdiction limited to small estates; See S. 6 of the PAEA

22. Primary Courts: - Under paragraph 1(1) of the Fifth Schedule to the MCA, Cap. 11 [R.E. 2002], PCs have jurisdiction to deal with probate and administration matters where the law applicable is either customary or Islamic. - Jurisdiction is regardless of value or nature of the property.

23. Cases for reference: - Salmin Mohamed [1986] TLR 250 - Scolastica Benedict [1993] TLR 1 - Mohamed Hassan [1994] TLR 225 - Luiham Martin [1992] TLR 74

24. B: Conflict of Laws: - This entails confusion on the law to be applied in succession; - Conflict of laws exists in terms of succession and not probate or administration of estates;

25. How to Resolve: Two tests to be considered: - Intention of the deceased; - Mode of life of the deceased; Read: Innocent Mbilinyi [1969] HCD No. 283

26. PROTECTION OF ESTATES PENDING GRANT AND EXECUTORS OF THEIR OWN WRONG A: Protection of Estates Why Protection? Various circumstances may lead to the need for protection of estates: - danger that the property may be wasted [S. 10 of Cap. 352];

27. - proceedings taking long; - protection of the beneficiaries; - need for interim measures; How to Protect/Measures: - Appointment of a receiver pending grant (S. 10) + Rule 24 (Procedure);

28. - Sale by Order of the Court (S. 11); Note: This can be done by a person appointed under S. 10 or any other person. See Rule 25 for procedure. - Letters of administration for special purposes. Ss. 35-44 of PAEA.

29. B: Executors of Their Own Wrong - S. 16 of the PAEA provides for executors of their own wrong; - Justifiable intermeddling S. 16 (proviso); - Liability of executors of their own wrong; S. 17

30. Thank You!!!!!!