This Article is meant to shed light to those who are seeking knowledge about Tanzania laws and practices in relation to wills. It is a rarely delved into topic, however, it happens to apply to every person regardless of gender, class or status. Therefore, this legal article will touch on the basics and clarify any mishaps one may have about wills in the legal sense.

There are several legal terms that may be a bit difficult for some to understand thus we shall mention them beforehand and explain their meaning so that when you encounter them in the article you will not find it difficult to follow up on the contents of the article.

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Estate – property owned by an individual

Executor – someone named in a will as the person who will administer a person’s estate upon their death

Heir – a person who inherits or has a right to inherit property of a deceased person Intestate – dying without a will in place

Probate – the entire process of administering a deceased person’s will and estate Testamentary Capacity – legal and mental ability of a person to make a valid will Testate – having made a valid will before one dies

Testator – a person who has made a will

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Introduction

As per the law, a will is the legal declaration of the intention of a testator with respect to his property, which he desires to be carried into effect after his death. In simple terms, a will is a legal document that provides one’s wishes on how his property is to be distributed upon his death. The laws governing wills in Tanzania are Customary Laws, Islamic Law and Statutory Law (Indian Succession Act, 1865) as more detailed hereinbelow.

Importance of a Will

The making of a will is a vitally important act that many people seem to disregard, not considering what will happen to their property once they die or even how they will be leaving their loved ones.

Oftentimes there is gender-based inequality when sharing a deceased’s estate amongst his surviving heirs where one does not leave a will. Some tribes believe that women should not inherit property i.e., land; furthermore, children born out of wedlock get discriminated when it comes to inheriting anything from their deceased parent.

The law does not obligate one to leave a will upon his death, but it is in their loved one’s interest to leave a will because where one leaves behind clear instructions on the succession of their estate, injustice of estate distribution is much avoided.

Types Of Wills

Written Will – this is a will where a testator inscribes in a document his wishes on how he wants his estate dispensed upon their death.

Oral Will – this is where a will is not incorporated in a document but rather the testator verbally expresses his wishes to available or appointed witnesses on how his estate is to be maintained and distributed upon their death.

Laws Governing Wills

Every law hereinunder has its formalities to be observed for a will to be valid; the formalities are somewhat similar but vary in some instances.

Statutory Law (Indian Succession Act, 1865) 

Under this law, for a will to be valid it has to be made by a person who is of sound mind and is not below the age of 18 years old; and it should not be made under fraud, coercion or undue influence. Furthermore, the testator is to sign or affix his mark to the will; and the will is to be witnessed by two or more witnesses who must affix their signatures to the will as well.

Customary Law

This is mostly governed by the Local Customary Law (Declaration) Order, GN No. 436 of 1963. Under this law, for a will to be valid, it must be made by a person who is 21 years old and above and is of sound mind. A written will must be signed by the testator and attested by at least two witnesses (one from the testator’s clan and another to be a neutral person); and where the testator is illiterate, instead of signing his will, he is to mark it with his fingerprint and the will is to be witnessed by at least four witnesses (two from the testator’s clan and the other two to be neutral persons). An oral will is to be witnessed by at least four witnesses (two from the testator’s clan and the other two to be neutral persons).

Under this law, a wife may be a witness to her husband’s will even if she will benefit from the will; and a testator is not to deny his heir’s share of inheritance without reasonable grounds.

Islamic Law

Wills under this law do not require any special form or wording. A testator must be 15 years old or above and of sound mind. Wills may either be oral or in writing, but they do not necessarily have to be signed or attested by witnesses; however, they must be clear and unambiguous. With an oral will, there is no specific number of witnesses mandated for the will to be valid, but with a written will there should be two witnesses to the will.

Steps in Preparing a Will

• Determine whether you are eligible to prepare a will.
• Determine what comprises of your estate and decide what properties to include in your will.
• Determine who your beneficiaries are and decide who will inherit what.
• Where there is any minor as your beneficiary, choose a guardian for them until they reach majority age.
• Choose an executor to your will and ensure that it is someone trustworthy.
• Draft your will (it is advised to consult a lawyer to do this for you).
• Identify witnesses to your will (who must witness (sign) your will in front of you).
• Store your will in a safe place i.e., in your lawyer’s care, in court, et cetera.
• Update your will whenever there is an addition of properties or beneficiaries.
  
  

Contents of a Will

Persons may vary in drafting styles when preparing a will but the basic concepts to be included in a will are; details of the testator, details of the executor(s), details of the assets, details of beneficiaries and clear division of the testator’s assets among the beneficiaries, proper verification in the presence of witnesses, and signatures of both the testator and witnesses.

Validity of a Will

For a will to be considered valid, it must meet the requirements below.

• The testator must have attained the requisite age as per the law of succession that is applicable to him/her.
• There must be a testamentary capacity; the testator is to be of sound mind and must state in the will that he is writing the will on his own accord.
• A will must be made voluntarily; the testator at the time of making and signing his will should not be coerced, under duress or undue influence.
• A will must properly dispose of the testator’s properties, there must be no ambiguity or confusion.
• A will must appoint an executor; for where an executor is not appointed the rules of intestacy shall apply.
• A will must be duly dated and signed by the testator and his witnesses.

Where a testator does not make his will according to the requirements of the law as provided above, then his will shall be rendered void, and he shall be declared to have died intestate; thus, his estate will be divided according to intestate rules.

Minor Beneficiaries to a Will

When preparing a will, it is important to note that the right to inherit the estate of a parent flows naturally from being a biological child, whether in or out of wedlock; and this also applies to adopted children. Section 10 and 36(4) of the Law of the Child Act [Cap 13 R.E. 2019] provides that a child has a right to be an heir to their parent(s). Thus, when drafting a will, a testator should take into consideration this fact and include them in their will. Where one does not want to include their child in their will, they must state reasons for such and inform the child why they will not be inheriting; and where the child is a minor, his/her guardian is to be informed on the exclusion of the parent’s estate.

Where a child is a minor, that is below 18 years of age, a will when bequeathing property to that minor should specify who is to have control on behalf of the minor until the minor reaches the age of majority.

Age

One of the requirements when determining the validity of a will, is the testator’s age. If the age is not in accordance with the law of succession governing the testator, then their will shall be rendered invalid, and they shall be said to have died intestate. Now, the laws governing wills in Tanzania as mentioned hereinabove are Customary Law, Islamic Law and Statutory Law (Indian Succession Act of 1865); each of these laws have their requisite age requirements for a will to be valid as indicated below:

• Customary Law – 21 years and above
• Islamic Law – 15 years and above
• Statutory Law- 18 years and above
  
  

Witnesses

As explained hereinabove, one of the requirements of a will to be valid is that witnesses to the will are a must. A witness to a will must have attained the age of majority and should be of sound mind at the time of witnessing the will. Where a witness dies before the testator, a new will is to be written with new witnesses present.

It is important to note that a witness to a testator’s will should not be someone who will benefit from the will, unless it is a will made under customary law where a wife may be a witness to her husband’s will even if she will benefit from the will. Also, the witnesses are to witness the testator affixing his signature on his will, they do not necessarily have to know the contents of the will; and they must sign the will in the presence of the testator.

Storage of a Will

Keeping a will safe is as important as making sure it is written effectively; loss or damage of the will shall result in the rules of intestacy applying after the testator’s death. There are several options that one may opt for in storing their will including:

• Testator’s lawyer – Who is to safeguard the will better than a lawyer who prepared it for their client?
• Bank – One may store their will in a safety deposit box in the bank they are banking with.
• Registration, Insolvency and Trustee Agency (RITA) – One of its functions is to safeguard documents.
• Court – One may register their will in court and keep it there.
• Testator’s safe or secure place – Testator should inform at least one of the executors on where they have placed the will.

Execution of a Will

Upon the death of a testator, his will which contains his wishes upon his death may then come into effect; the court is the one with mandate to grant power to administer the will. Where a testator in his will has included property not subject to him, the court shall exclude such property from the estate of the testator. Probate of a will may be petitioned to the court of law for execution after the lapse of seven days from the death of the testator.

Conclusion

If one does not leave a will behind, the law will decide on how to distribute their properties upon their death. This article is a reminder to write a will to ensure that one’s legacy is well carried on even after their death as well as to secure a future for their loved ones.

Author: Lucy Lusenge, Legal Officer