Meaning of contentious matters
These are matters that are resolved through court litigation.
-They are also called contentious solemn form
-contentious matter can be explained in two ways
1.Objective proceedings
2. Revocation proceedings
1. Objective proceedings
Refer to the proceedings which include ordinary hearing on the matter that brought by a person who is interested in deceased estate warning the court by lodging a caveat
-involves
a. objection of the grant of representation by interesting person to the deceased estate basing on the ground ascertainment of will
b. entitled to grant of the responsibility
c. ascertainment of the deceased death
-the said to be valid if before grant the responsibility a court has been entitled for proceedings to grant of probate or letter of administration will be stayed
Section 59(1) of PAEA
In kijakazi mbegu and 5 others Vs Ramadhani mbegu {1993} TLR 178
The trial erred in court erred in granting letter for administration the caveat was still in force.
It is tenable because the court life of four month from the date which it is lodged in terms of section 58(5) of PAEA it was expire on 2nd October 1997
Therefore, the court in force when the district court decline the impugned
Judgement.
The caveat can be entitled by interested person to the deceased estate section 58(1) of PAEA
In D.D Dashi Vs abdulhusein Hassan (1942) 22 EAC 25
Case held that any interest in the deceased estate have slight is sufficient to enable the party to lodge a caveat and oppose a testamentary paper or inherent
GROUNDS FOR OBJECTIONS PROCEEDINGS
- Validity of the will
- Entitlement of grant of representation
- Ascertainment of deceased death
- Competence of the prescribed representatives
- Jurisdiction of the court
1, validity of the will
The will to be valid there are number of things to be considered
- Capacity
- Intention
- Formality
A, capacity of testator to sign and execute the will
-In order for a will to be validity a testator must be of the age and both of physical mental capacity as well
-if there is any doubt that a testator has no capacity at the time of making will that can be a fertile ground to grant of representation
B Doubt on the intention of the testator on making the will
Intention or animus testandi is on of the important fact that to the will. There fore if it proved that the testator died without have intention or made a will because of fraud or undue influences those futures are good to prove that the will is ______________
C THE WILL DOES NOT COMPLY WITH THE FORMALITIES REQUIRED BY THE LAW
Tanzania this are number of laws govern the formality of making a valid will such laws include
-Statutory laws
-Islamic laws
-Customary
-a person may raise an objection that a will does not comply with the requirement of the valid will
In the case of balyehaule mulagilwa Vs Buani mulagilwa {1967} HCD 90
Issue before the court was the validity of the will which was witnessed by on person which was not the deceased clan and it was signed by the testator.
It was held that because the will was not signed and because adequate reason for disinherit the son where not disclosed the will was invalid
-Generally, the burden to prove the validity of the will rest on the part propounding it.
In the case of Ramnile vaghella Vs Mahendra Vaghella (2000) TLR
It was stated that the burden to prove the validity of the will rest or part of propounding is where the testamentary capacity is in question.
ENTITLEMENT OF GRANT OF REPRESENTATIONS
The interest pay to the deceased estates may raise objection as to the entitle of the grant of the representation of the deceased by object a person appointed either testate or intestate may claim to be suitable person on the representatives of the deceased
Entitlement of heir to the deceased estate
A person may object the proceeding of grant representation of the deceased estate claiming. That he/she is a lawful heir who has been executed in the share of the deceased estate or not mutual in the in the deceased estate
Assortment of the deceased death
Sometimes it may happen that a person interested in the deceased estates files a caveat to object the granting of the representative as the grant that the death of the death is in connection with the personal representative of deceased
Competence of personal representatives
The intention may happen that a person interested in the deceased estates files a caveat to object the granting of the representation s the ground that the death of the deceased in connection with the personal representative of the deceased
Jurisdiction of the court
The jurisdiction of the court in entertain season matter can be one of the grounds of filling a caveat
Procedure under objection proceedings
All contentious proceedings must be entering a court either in HCT or in District delegated court
Steps 01.
– The caveat may be entered in the district Delegated if at time of death the deceased has a foxed place with an area for which delegated district has approved
– immediately after a caveat has been entered in to district delegated the district delegate must send to the high court
– authority section 58(1) of PAEA
– place of entering court is high court exception
Section 58(2) PAEA
-Effects of proceedings to stay under section 59(1)
-life span is 4 months section 58(5)
–
Application for caveat is made under prescribed form number 62 set out in the first schedule and it must be attached by a person before whom an affidavit may be sworn rule 83(1)
Drafting
THE UNITED REPUBLIC OF TANZNAI
IN THE HIGH COURT OF TANZANIA
AT DAR ES SALAAM
PROBATE AND ADMINSTRATION
CASE NO ____________OF 20_____
In the matter of the estate of the late X
And
In the matter of applications for petition for probate by Z name of executer
CAVEAT
(Made under section 58 of the probate and administration of estate act and rule 82 of probate rules)
Let nothing be done in the matter of the estate of X deceased who died at __________________________ on the day of __________20____________with in given notice to ____________(name of caveat) with address of seniors ____________(state address of the seniors)
Dated at __________________this _______________day of ________
(To be signed by the court)
Once a caveat has been filled the nature of non cementum matter change and become the normal procedure
Nuru Hussein Vs Abdul Ghari Ismail Hussein 2002 (TLR 221)
It is important to emphasiser this point ____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
b) in any case in which there is content the proceedings shall take as nearly as may be the form of a suit in which the petition for granting shall be plaintiff and any person who appears to oppose the proceedings shall be defendant
Step 02; Citation to caveat
- The petition to apply for the insurance of a citation to the caveat of a citation to the caveat. Section s.2 of PEAE
- Where a caveat has been entitled any person who petition for administration must apply for the citation to the caveat calling upon him to state whether he supposes the grant of probate or letter if administering to the petition
Application for citations FORM NUMBER 63 rule 82(2)
.application with in 30 days from the date of caveat
. extension to file application rule 82(2A)
. failure to lodge applications rule 82 (2B)
. petition may be registered only if no grant has been made by another person
Form number 63
IN THE UNITED REPUBLIC OF TANZANIA
IN THE HIGH COURT OF TANZNAIA
AT DAR ES SALAAM
PROBATE AND ADMINSTRATION
In the matters of the estate of the late X
(name of the decease)
and
in the matters of applications for petition for probate by Z
(name of the executer)
APPLICATION FOR CITATION OF THE CAVEATER
(made under section 59(2) of the probate and administrations of estates Act and rule 82(2) of the probate rules)
To register
______________________________________________________________________________________________________________________________________________________
Z being the petitioner to this honourable court for grant of probate of the WILL or letter of administration of the estate of X
Letter of the deceased who died -________________at ____________on the day_________________of_____________________20___________________hereby applus that a citation under section 59(2) of the probate of administration of estates act may be issued to __________________________ of _____________________ who_____________________ has enter a caveat in the estate of sued deceased
_______________
(to be signed by petitioner)
Step 03; insurance of citation
-registry to issue a citation form 64 requiring the caveat with 30 days to estate whether supports grants
– if he does not support to enter appearance
Step 04 caveator to enter appearance
If the caveator enters appearance tr court will proceed with the petition according to the laws. Where a caveator gives notes to support the application for grant of representations or fails to give notice to support the applications for grants of representations and fails to enter appearance for petition in time limit the court shall have deemed and no with draw and no further on behalf of section 59(4)
-;prescribed form number 65 of first schedule and 82 (4)
Drafting form number 35
IN THE UNITED REPUBLIC OF TANZANIA
IN THE HIGH COURT OF TANZANIA
[ IN THE DISTRICT REGISRTY]
AT DAR ES SALAAM
PROBATE AND ADMINSTRATION
CASE O__________OF_____________20_____
In the matter of the estate of the late X (name of deceased)
And
In the matter of applicants for petition for probate (name of the executer)
APPEARANCE BY CAVEATOR
(Made under section 59 of the probate and administration of estates act and rule 82(4) of the probate
CAVEAT dated the ___________________day of __________________name of the deceased ________________________________name and address of the caveator ____________________________ENTER AN APPEARANCE for the about named caveator _________________________ dated ________________the days of ______________________
___________________
Signature of caveator
COPY TO BE SAVE UPON THE
CAVEATOR rule 82
Step 05. Petitioner to file or caveator affidavit
- The counter affidavit respect to the counter affidavit
FORM OF PROCEEDINGS
-Where the caveator enters appearance, the proceedings take a nearly as possible the form of suits rules 82(6)
FOR PIROSE OF PLEADINGS
- Petitioners petition save as plaint
- Counteres appearance together will its affidavit save as WSD
- Petitioners C/A saves as a reply to WSD
- The petitioner becomes the plaint caveator defendants
- Case number to read as ordinary civil case -rule 82 (6)
NB:
Where an application for grant of probate letters of administration has been made to district delegated court in respect of an estate the gross value of which executor fifteen thousand (15,00000) shillings and person who has filled against such applications has entered an appearance, the district resident shall upon receipt of appearance and the affidavit in support of of the application found the ready of process to the register who shall proceed numbering the proceeding and appointing date which the suit shall be listed before judge in court for such orders as to pleading and date of the hearing as the judge may make.
2.REVOCATION OF GRANTS
A grant of letters of probate of administration may be revoked
Upon the person challenging the validity of the appointment of the person representatives to satisfy the court that there was a mistake in the proceedings on the person appointed as representatives it is not qualified to administering the estate.
In the case of Mohamed Hussein Vs May mwanahawa Mzee (1990) TLR 225
The court of appeal stated that it is up to the person who challenge the validity of the appointment of an administrator by the court to show that the person appointed as the estate does not have the qualifications of the estate
S.49 of the PAEA provides for revocation of grant
GROUNDS COR REVOCATION OF GRANT
Rule 49(1)
- that the to be obtained the grants where defective in substance
- that the grant was obtained fraudulently by making a false suggestions or by concealing from the court something material to the case
- that the grant where obtained by means of untrue obligations of false essentials in points of law to justify the grants through such allegations was made inadvertently
- that the grant has become useless and uncooperative and
- that the person to whom the grant was made has wilfully and without reasons cause omitted to exhibit
- that the appointed person representative has misplaced the deceased estates
èin case of the administrator of the estate other than small estate if it is satisfied that any of the above grounds has been _______ to the high court
May suspend remove the exhibit or administrator other than the administrator general
Section 49(2)
Proceedings for revocations of grants
Step 01.
The revocation annulment of application by chamber summons supported with an affidavit rule 29(1)
DRAFTING CHAMBER SUMMONS
IN THE UNITED REPUBLIC OF TANZANIA
IN THE HIGH COURT OF TANZNAIA
(DAR ES SALAAM DISTRICT REGISRTY)
PROBATE AND ADMINSTRATION
CASE NO________OF_________20____________
In the matters of the estate of the late ________________
And
In the matter applicable for grant of probate by ___________
CHAMBER SUMMONS
(Mae under section 49(1) of the probate and administration of estate and Rule 29(1) of probate rules)
Let the parties concerned appear before this honourable court in chamber on the day _____________of ______________20__________ at __________0’clock in the fore noon or soon therefore as counsel of the appellant can be heard on the applications for __________________-set out the order of applied
1.that __________________________________________________________________
2. that ___________________________________________________________________
3. tha_____________________________________________________________________
This this chamber summons has been taken at instance of GROUP NUMBER 3 Supported by affidavit of
Have unto annexed will be real in support of applications and any other grounds to be addressed at hearing
Given under may hand and seal of the
This _______________________ day of ______________20______
________________________
REGISTRY
DRAWN AND FILLED COPY TO BE SAVED
GROUP NUMBER 03ADVOCATES BARAKA MATERU
FIRST FLOOR P.O.BOX 2452
ROOM A2 M/KILIMANJARO
LAW SCHOOL OF TANZANIA TANZANAIA
DAR ES SALAAM
Gmail. Materuni Advocates@gmail.com
DRAFTING AN AFFIDAVIT
IN THE UNITED REPUBLIC OF TANZANIA
IN THE HIGH COURT OF TANZANIA
(MOSHI DISTRICT SUB REGISRTY)
PROBATE AND ADMINSTRATION
CASE NO ___________OF____________20_________-
In the matters of the estates of the late X ______
And
In the matters of the applications for revocation of grant by Z _________
AFFIDAVIT
I ______________________ an adult male of the age of 98 years old Residence of Moshi Kilimanjaro
Do hereby made an oath and say as follows
1.that ________________________________________________________
2.that __________________________________________________________
3 that __________________________________________________________
4.that __________________________________________________________
5.that ___________________________________________________________
Dated at Moshi ______________-the day _____________of ______________20_____
___________
VERIFICATION DEPONENT
All what I have started in paragraph 1,2,3,4,5,6,7,8 is true to be the best of my knowledge
Verified at Dar es salaam this ______________day of _____20______
SWORN by the said
___________who is known __________________
To me personally this DEPONENT
Day of Jan 2020
At Moshi
Before Me
Name_______________________
Address_____________________
Qualification________________
Signature ____________________
Represented for the filling this day _______________day ________of_________-20_____________
_____________
Registry
DRAWN AND FILLED COPY TO BE SAVED
GROUP NUMBER 03ADVOCATES BARAKA MATERU
FIRST FLOOR P.O.BOX 2452
ROOM A2 M/KILIMANJARO
LAW SCHOOL OF TANZANIA TANZANAIA
DAR ES SALAAM
Gmail. Materuni Advocates@gmail.com
- an order revoking or annulling a granted is in the form prescribed inform 15 section out in first schedule of the probate Rules 29(3)
IN THE UNITED REPUBLIC OF TANZANIA
IN THE HIGH COURT OF TANZNAIA
(MOSHI SUB REGISTRY)
PROBATE AND ADMINSTRATION
In the matters of the estates of the late X________
And
In the matters of applications for the petition for probate by Z_______
ORDER REVOKED GRANT
(made under rule 29 of the probate rules)
Upon reading the appellants of z_________________ and upon reading the affidavit of the said Z in support therefore and upon hearing in support
Etc it is ORDERD that the grant of probate or letters of administration of X deceased made by the__________________ day of _____________2020_______
Name of the granted BE AND IS HEREBY REVOKED OF DERCLAERD TO BE AND TO ALL INTENTS purpose in law whether
Dated _________________at ___________—-this day _____________of 2020
________________ _______________
By court register
Rule 29 of the probate rules
Provide the documents of NOTICE TO SURBENDER PROBATE OR LETTERS OF ADMINSTRATIONS
Effects of revocation grants
- Where a probate or letters of administration is revoked all payments beneficial made to any executor administration in the course admitting the estates of the deceased person before revocation not standing such will legal discharged to the person making the same rule 50(1)
- Section 50(2) provide who applied with the himself out of assets of the deceased in respect of any payments made by him which the person to him with administrate be offenses granted registering lawful made section
IN THE UNITED REPUBLIC OF TANZANIA
IN THE HIGH COURT OF TANZANIA
(____________-DISTRICT RGISTRY)
PROBATE AND ADMINSTRATION
CASE NO_____________OF___20_________
In the matters of the estate late X _______
And
In the matter of application for petition for probate by Z________
INVENTORY ESTATE
(section 107 rule 106)
dated of grant ___________________________________________________
Assets
Hon no: description of property
Immovable property
Cash in hand
Stocks and shares
Insurance policies
Interest in business
Books debt
Personal effects
Other property total_________
LIABILITIES
Item number; Description
Name of credit
Mortgages
Other debts
Death bed expenses
Funeral expenses
Total_______
I _______________________________________ the administrator executer of the estates of the said _____________________hereby certify that the foregoing of the said estates is true to the best of my knowledge is information’s and behalf
Dated at _________–the_________-day___________of____-20________-
Signature
Administrator
With in one year from the grant to file a true copy statement of the accounts of estates
-s. 107 rule 107
-form 81
DRAFTING form 81
IN THE UNITED REPUBLIC OF TANZANIA
IN THE HIGH COURT OF TANZANIA
(_____________DISTRICT REGISTRY)
AT DAR ES SALAAM
CASE NO _________OF________2020
ACCOUNTS OF ESTATES
(Section 107 rule 107)
Date of grant receipts value
- Estates as per inventory
- Estates realised
- Car ,on gross values
PAYMENTS
- Funeral expenses
- Debts
- Administration expenses
| Name of the person estate | How entitle | A___________ |
I __________________________the administrator of the estate of the said ____________that the foregoing
In this day of ______________2020____________
Distribution of the estate assets
The estates have to be distributed to all lawful
Assets
For