CHAPTER ONE

INTRODUCTION TO SUCCESSION LAW

You should be familiar with the following areas

  • Concept of Succession and Succession Law
  • Types of Succession
  • Terminologies
  • Historical Background of the Law of Succession

1.1  CONCEPT OF SUCCESSION AND SUCCESSION LAW

Meaning of Succession

Is the action or process of inheriting title, office or property. According to Webster Dictionary pg. 247

“The taking over of a previous office, rank or duties by a new person or the process by which a decedent property or rights passes to the inheritors thereof, under the law of decent and distribution.”

Black’s Law Dictionary 8th Edition p.g 1472

Succession is an act or right of

The Law of Succession is the body of law, regulating the inheritance of property. Inheritance succession is the distribution of property after the death of person. An inheritance is same as the succession to rights and property of the deceased.

1.2  TYPES OF SUCCESSION

  • Testate succession
  • Intestate succession

I.                    Testate Succession

Is a type of succession occurs where a person dies and leaves a Will. A person is said to have dies testate, if he has left a Will expressing his wishes on how his estate would be administered affect his death.

A testator may wish to appoint a person who would execute his wishes after his death. A person so appointed is known as executor.

The testator may as well appoint under the will a person who should as a guardian for his minor. It is an obvious that life human being is not guaranteed. It is also true that nobody knows, when the will die. Having this in mind, one may wish to ensure that his estate is well planned, so as to avoid future disputes which may arise among his dependants and beneficiaries. His plan can be done though the executing a will.

II. Intestate Succession

Refers to the law of the state providing for the intervene property from a person who dies and leaving a will. Thus, to carry out a interstate succession the owner has died and accordance with the state law of intestate succession.

A person is said to have died intestate when he dies without making a will in which a case succession to his property will depend on the rules of intestate prevailing in a given society or under a given legal system.

Where a person dies intestate on administrator will be appointed to carry out various duties and to distribute his estate.

1.3  TERMS USED

  1. Administrator

A person appointed by the court to collect and distribute the deceased person estate where the deceased where the deceased died intestate will did not appoint an executors or the executor refuses to act. The administrator authority with the estate does not mean until the court has granted of administration.

  1. Administratix

The term applies where a person appointed to collect and distribute deceased person estate is a female (woman)

  1. Bequeath

To dispose of personal property by will.

  1. Bequest

A gift by will of paid property known as “legacy”

  1. Bond

An agreement under seal whereby a person bind oneself to another to perform an action.

  1. Caveat

Warning, usually in the form of an entry in a register intend to prevent some action being taken without notice being given to person issuing the warning.

  1. Codicil

A document supplementary to a will which is executed with the same formalities under a will. It must be proved with the a codicil conforming a will normally republishes the will and may review a will that has been revoked if that is the intention.

  1. Citation

Notice issued by an execution applying for probate in solemn form, calling upon persons to appear and show why probate should not be granted.

  1. Creditor

This is a person to whom one other person owes money.

  1. Death

This means ending of life.

  1. De bonis non Administrates

A secured grant of letters of administration of the estate of a deceased person when administration has previously been granted to someone who has himself before competing administration grant the estate leaving no executor that the chance of executorships broken

  1. Debtor

Is one who owes a debt.

  1. Executor

Is the one appointed by a will to administer the testator property and to carry out previous of that will. In general the office can only be exercise by the previous, so appointed as a female, then she is called an executor.

  1. Estate

This encompasses asset of a deceased person.

  1. Funeral

Burial or cremation of a death of a dead person with usual ceremonies

  1. Gender

The fact of being male or female, in grammar, the gender of a male is whether masculine or female

  1. Grantee

A person to whom a grant is made every person to whom an estate or interest passes in or by any deed or one who takes by any species of conveyance the purchaser of a estate a legal representative of the assigner or grantor in regard to the thing assigned or granted.

  1. Heir

One who succeeds by descent. A limitation of property in form of the heir

  1. Intestate

A person who has died without having made a will.

  1. Inheritance

A estate descended to the heir immediately on the death of the ancestor by virtue of his or representation of a desendent.

  1. Intervivos

The term refers to a transaction between two or more living person that is to say bilateral or multilateral transaction and not a unilateral transaction. Between living persons i.e. one living person to another

  1. Jurat

A term which means that the affidavit sworn before the officer taking the affidavit. It is an certificate of the officer who administered the oath that the affiliate had subscribed and sworn before him.

  1. Legatee

The person to whom a legacy is given that is bequeathed by the last will of the testator

  1. Lex demicilii

The law of the domicile.

  1. Lex situs

The law of the place where property is situated. The general rule is that law and other immovable are given by the lex situs

  1. Letters of administration

Letter granted by the court person appointed to settle a deceased person affairs in accuracy with the will where there is an executor or in case of intestate

  1. Legal personal representative

This means a person appointed and regarded under the law as a person being capable of exercising the right or have duty to have such right.

  1. Matrimonial Property

This is property which is owned by husband and wife. Parties have the right to deal with such property and as joint right.

  1. Probate

Document issued under the seal of the court as official evidence of the authority of an executor. If validity of the will is contested probate is granted only after the court has proved in favour.

  1. Pendente Lite

While an action is pending, thus an administrator pendite lite one appointed where there is a dispute as to the validity. The appointment of an administrator pendite lite will be made where it can be shown to the necessary.

  1. Personal representative

The executor original or by representation or administrator for the time being of a deceased person.

  1. Petition

Applied to the court in writing and in summary way instituting an action or requesting action upon a matter before it. It may also be defined to mean a formal application I writing made for judicial action for something that lies in its jurisdiction.

  1. Real estate

Chattels, real and lived in possession and evy interest in or over land to which a deceased person was entitled at the time of his death.

  1. Testator

A deceased person who has made a will. Testate means having made and left a valid will. The ability to make a valid will is known as testamentary capacity.

1.3 THE HISTORICAL BACKGROUND OF THE LAW OF SUCCESSION

For quite sometimes Tanzania has embarrassed draconian kind of law on inheritance. These laws have limited and eroded the dignity of both women and children as human beings. In inheritance, there is no equality that is; women and children are treated differently from men. Example; some countries do not allow women to vote as in 1960’s. And this kind of discrimination has been included in some of our laws.

They have remained immutable and insensitive to public outrage as they have left the public in anger that is; no one accepts it until you get civilized.

These draconian laws include;

  1. Customary law
  2. Islamic law
  3. Indian Succession Act

Where did we come from and when do we come to inheritance?

Back to 1960’s the government has shown a will to replace such piece of legislations and come up with one single fused statute on inheritance.

There are some of efforts which were taken by the government in approaching the problem.

In 1968 the government appointed a special committee to investigate inheritance matters; its recommendations were put in the shelves to gather dusts.

In 1987, the Attorney General asked the Law Reform Commission to study problems in inheritance laws and recommend but still nothing were worked upon.

In 1995, as a result the report was published recommending the creation of a uniform non discriminatory intestate succession statute. This time, the report was put on a garbage cane as if they report nothing.

In 2002, the Women’s Legal Aid Center in collaboration with George Towns University in US conducted a fact finding mission on the inheritance regime in Tanzania. They came up with a proposed statute consolidated as one uniform intestate succession law.

What did they propose?

  1. Surviving spouse (husband and wife) would inherit the matrimonial home not as the case before they suggested.
  2. Surviving spouse to be the administrator of the estate.
  3. Criminalize property grabbing from a widow or a widower, eviction from family home as the case it is now also taking of children and inheritance of widow by husband relatives.

Though the bill receives substantial support from the public, the government was not willing to adopt it until 2005 on account of election assignment.

1.4  THE SCOPE OF THE LAW OF SUCCESSION

The capacity to have rights and duties is called legal subjective, which is terminated by death, consequences of the termination of the legal subjective are:-

  • The subject is known as the deceased
  • If the deceased has a valid he/she is known as testamentary or testatrix respectively
  • The deceased estate- all of the deceased assets and liability is gathered together.
  • The remainder of the assets then pass to persons qualified to succed him