FACULTY OF EDUCATION AND LEGAL STUDIES

DEPARTMENT OF LAW
LAW OF SUCCESSION AND TRUSTS (LW 2203)
COURSE OUTLINE

1.0 COURSE DESCRIPTION

The Course is intended to help students understand how nominal property is vested
in an individual. The Course is further intended to expose students to the legal
status of Trust property.
2.0 LEARNING OUTCOMES
Expected outcomes include, to enable the student to;
2.1 Recall the definition and history of Probate, Succession and Trusts law
2.2 Distinguish between a Trust and related legal concepts
2.3 Classify the different categories of Trusts.
2.4 Apply the concept of Trust to Customary and Islamic law.
2.5 Assess the administration of Trusts in Tanzania.
2.6 Draft a Trust Deed
2.7 Analyse the impact of a valid or invalid Will on succession of property
upon death.
2.8 Apply for Probate and for Letters of Administration of estates
2.9 Classify the different ways in which Wills apply under different legislation,
customary and Islamic law.
2.10 Draft Wills and other probate documents
3.0 COURSE CONTENT
3.1` PART ONE: LAW OF SUCCESSION

3.1.1 What is Succession Law?

-a process by which property that is left by a deceased person shall be vested,
transmitted, liquidated or shared between the heirs of the deceased, also known as
the beneficiaries. Through a Will successio ab testato or successio ab intestato
where there is no Will
3.1.2 Historical Development of the Succession Law
3.1.3 Sources of Succession Law;
i) The Constitution of the URT. Arts.of 13(4) &24(1) & (2)
ii) Legislation:
 -The Law of Marriage Act, Cap.29, as amended
 -The Land Act, No.4 of 1998(Cap.113)
 -Probate and Administration of Estates Act, Cap.352 and Rules
 -The Judicature and Application of Laws Act(JALA), Cap.358. S.11(c)(ii)
 -Administrator General (Powers and Functions) Act, Cap.27
 -Law of the Child Act, Cap.21 of 2009
iii) Customary Law, Local Customary Laws (Declaration) Orders (No.4) of
1963
iv) Islamic Law, the Holy Qur’aan: Surat-an-Nisa
v) Hindu Law
vi) The Tanganyika Order-in-Council, 1920
vii) The Primary Courts(The Administration of Estates) Rules, GN No.49 of
1971
3.1.4. The Nature, Importance and Functions of Succession Law
3.1.5 The Bona Vacantia Rule-Ownerless/vacant goods
3.1.6 Key Legal Issues and Challenges Relating to Succession Law in
Tanzania
 -Lack of a uniform law of succession leading to Conflict of Laws
 -Lack of adequate knowledge among professional legal practitioners
 -Inordinate delay in the administration cases resulting from unrestricted
number of “interested parties"
 -Technical rules of procedure and a multitude of forms
 -Discriminatory laws of inheritance, particularly against widows, orphans
and children born out of wedlock.
PART TWO: PROBATE AND ADMINISTRATION OF ESTATES
3.2 The Law on Probate and Administration of Estates in Tanzania.
3.2.1 What is a Probate?
What is the difference between a grant of probate and a grant of letters of
administration
See: Mark Alexander Gaetje & 2 Others vs. Brigitte Gaetje Defloor, Civil
Revision No.3 of 2011
3.2.2 What is Administration of a Deceased’s Estate?
-A process by which the deceased’s legal representative, gets power from the Court
to take charge/administer the deceased’s estate immediately after the deceased’s
death.
-After the deceased’s death, there are different types of grants.
Where the deceased died testate, the representative named in the Will applies for
the grant of probate. (Ss. 24-28, Cap.352).
The petition for, and the grant of probate, presupposes the existence of a Will.
See: Hamson D. Ghikas vs. Ludwina D. Ghikas(1992)TLR 288
-Where the deceased died intestate, the representative applies for Letters of
administration.(Ss.33-34, Cap.352).
Where the deceased’s estate has been distributed with mutual agreement by the
clan members under customary law, and the heirs have owned the same peacefully
without disturbance for reasonably long period, there is no need to appoint an
administrator to redistribute the same again, save where the administrator is
appointed for other duties.
See: Kennedy Bakebula vs. Edwin Kajumulo, Probate Appeal No.9/2017
-Where the executor or administer dies before completing the job, and a
replacement is necessary (de bonis non administratis)
Where the executor is a minor (administration durante minoreatate)
Where the person is absent from the jurisdiction (administration durante absentia)
Where the executor or administrator becomes incapacitated (administration durante
dementia)
An interim appointment when the application for a full grant is pending
(administration pendente lite)
An appointment to represent an estate in litigation (administration ad litem)
Grant to protect the estate assets/property where litigation is delayed
(administration ad colligenda bona defuncti)
3.2.3 Sources of the Law on Probate and Administration of Estates in Tanzania.
3.2.4 Distinction between probate and succession law
3.3 WILLS:
What is a Will?
- Means a legal declaration of the intentions of a testator with respect to his
property, which he desires to be carried into effect after his death.
3.3.1Essentials of a Valid Will.
-Testamentary Capacity: A testator must be of sound mind or mentally fit, not
influenced, and must be of the age of the majority.
See: Benson Benjamin Mengi & 3 Others vs. Abdiel Reginald Mengi & Another,
Probate and Administration Cause No.39 of 2019 (Mlyambina, J)
-The test of mental capacity to make a Will is not directly connected with mental
disorder or lunacy, but to a testator’s sound disposing mind.
See: In Re Walker (1905) 1 Ch.160-”
A Will made by a lunatic, so found, would be upheld if the Court believed that he
had the necessary capacity and understood what he was doing” Vaughan Williams,
L.J in -Banks vs. Goodfellow (1870) QB 549-
” He must have a sound and disposing mind and memory. In other words, he ought
to be capable of making his Will with an understanding of the nature of the
business he is engaged in……..a recollection of the property he means to dispose
of, and of the persons who are the objects of his bounty and the manner in which it
is intended to be distributed between them”, Cockburn, C.J
But the Court of Appeal in Tanzania in Ramnik Vaghella vs. Mahendra Vaghella
(2000) TLR 227- held, inter alia,
“It is settled that in order for a Will to be legally enforceable, it has to be valid,
and its validity in turn, derives from the capacity of the testator and the
circumstances attending its making. A lunatic cannot make a valid Will during the
subsistence of his insanity”
-A Blind Person:
See: Agidigbi vs Agidigbi (1996) 6 NWLR 300
“Where it is established that the testator, although blind, was at the time of making
the Will aware of the contents and had signed it, it will be a valid will”.
-An Illiterate Person
R.58 of the Probate Rules requires that where there suspicious circumstances under
which the Will was made as to the testator’s capacity to know the contents of the
Will at its execution, the Court may require the petitioner to produce an affidavit
from any person it may think fit for the purpose of satisfying itself that the testator
had such knowledge.
-Intention (animus testandi)-
An otherwise valid Will may be declined if it is shown that there was lack of
intention during its making. Intention or animus testandi may be vitiated by alcohol
(drunkenness), senility, force, fraud, fear or undue influence.
-Undue Influence
Pressure or coercion of whatever character exerted to overpower the volition of the
testator, even though no force is used or threatened.
Hall vs. Hall(1891)3 Ch.389
“A testator may be led, but not driven, and his Will must be the offspring of his
own volition and not the record of someone else. A Will induced by the undue
influence of a third party is liable to be set aside.”
-Mere allegation of undue influence due to the relationship between the testator
and beneficiary without proof, may not be enough. Each situation must be looked
at depending on its circumstances.
i)Husband and mistress- John vs. Maja (1951) 13 WA CA 209
ii)Solicitor and Testator-Tilley vs. Berg (No.2) (1945) 3 WW 81
iii)Husband and Wife-Hacker vs. Newborn 82 ER 834
-A Will must be designed so as to be effective without any ambiguity.
See: In Re The Estate of the Late Prof. Hubert Kairuki, Probate and
Administration Cause No.4 of 2005, Unreported
The deceased executed two Wills, one was a joint Will with his wife, and while
that was still intact, he made another Will. The Petitioners, John Balilonda of
Kanyigo, Bukoba and Michael Njumba of Dar es Salaam, sought Probate of the
latter Will. The petition for probate was declined and the Petitioners were directed
to petition for grant of Letters of Administration.
-It takes effect after the testator’s death.
See: Constantin Hamanya vs. Elias Kahyoza (1968) HCD n.67
Olivant vs. Wright (1875) ICh.D346,650.
3.3.2 WILLS UNDER ISLAMIC LAW(Al-waswiyyah)
It is the duty of every Moslem who has anything to bequeath, not to let two nights
pass without writing a Will about it.
The rules governing the making of an Islamic Will are to be found in the Qur’aan
as described in the “Hadith” of the Prophet Mohamed (S.A.W). A testator can only
bequeath 1/3 of his estate by a Will, nor can he bequeath by Will, in favour of the
legal heirs.
See: -Salma Moshi Athumani vs. Asha Kimolo, Probate and Administration
Cause No.37 of 2007, Dar es Salaam District Registry(Unreported).
-Waziri Maneno Choka vs. Abbas Choka, Civil Appeal No.51 of 1999.
-Does the 1/3 rule violate the Constitution?
See: Said Selemani Masuka vs. Anwar Z. Mohamed, Civil Appeal No.5 of 1997.
“Trying to impose rules that contradict the Qur’aan tantamount to ‘amending the
Qur’aan.”. Msumi, J
But on appeal, Ramadhani, C.J, held to the contrary.
“We need legalistic, not religious or patriotic grounds, to reject the submission that
the Islamic laws, which are part of our laws in matters of inheritance, do or do not
violate the constitutional right to property!”
Qur’aanic verses relating to inheritance are definitive in nature, i.e., they are not
subject to change or interpretation. In other words, they bind all Moslems, no
matter how fair or unfair they may seem.
See: Salma Moshi Athumani vs. Asha Kimolo (supra)
Exercise of freedom of conscious and belief is free, and once you decide to join a
religion, you are bound by it. Once a Moslem, you die a Moslem, and your estate
will be distributed according to Islamic law, unless you opted out before your
death.
See: Amina Taratibu Mbonde vs. Selemani Ahmedi Mtalika(2000)TLR 62
Salma Moshi Athumani vs. Asha Kimolo.
However, the property of a deceased Moslem may not be distributed according to
Islamic laws, if the deceased had declared in his Will, that administration of his
estate should not be in accordance with Islamic law.
See: Naima Ibrahim vs. Isaya Tsakiris, Civil Appeal No.119 of 2009.
3.3.3. WILLS UNDER CUSTOMARY LAW
-Customary Wills are governed by the Third Schedule to the Local Customary Law
(Declaration) Order, GN No.4 of 1963 and 219 of 1967.
A testator must be above the age of 21 years, and of sound mind, exercising his
free will. The Will may be oral or written.
Under R.20 of the 3rd Sch. to GN. No.4/1963, a person making a Will must punch
his right finger print for his Will to be valid.
See ; Hyasintha Kokwijukya Felix Kamugisha vs. Deusdedith Kamugisha, Probate
Appeal No.4/2018
i) Oral Will-Must be witnessed by four witnesses, two of whom must be
clan members and two non-clan members.
See: Deusdedit Kashaga vs. Bi. Baite Rwabigene (1967) HCD n.90.
ii) Written Will-Where the testator knows how to read and write, he needs
two witnesses only, a kinsman and another. If illiterate, he needs four
witnesses, two kinsmen and two others
See: Abdul Sadiki vs. Wilfred Rutakunikwa (1988) TLR 167.
-A testator may disinherit a heir if there are serious reasons, such as committing
adultery with the testator’s wife, attempted to murder the testator, or if, without any
justifiable reason, fails to look after the testator in hunger or in sickness. The
testator must state so very clearly in the Will. If the disinherited heir can take the
matter to Court.
See: Hyasintha Kokwijukya Felix Kamugisha vs. Deusdedith Kamugisha, (supra)
Paulo Ferdinand vs. Fulgence Bigutu (1967) HCD n.182
Bigw’omunda Mulaula vs. Bahanda Rwojo (1967) HCD n.71
Under Rules 35-39 of the 3rd Sch. To GN No.4/1963, the heir who is disinherited
shall be afforded the right to be heard.
See: Hyasintha Kokwijukya (supra)
However, where any customary law relating to inheritance appears to be
discriminatory, the same shall be disapplied.
R.20 of the Local Customary Law(Declaration)(No.4)Order, GN No.436 of 1967
provides that
“A woman can only inherit “completely” when there no men in an entire clan. The
said provision was declared to be inconsistent with Art.13(4) of the Constitution
which bars discrimination.
See: Mwalusanya J, in Bernardo Ephrahim vs. Holaria Pastory and Gerevazi
Kaizirege. (PCC)Civil Appeal No.70 of 1989, Unreported.
4.0 INTESTATE AND TESTATE SUCCESSION
4.1 Appointment of Administrator
Administration is the process by which a personal representative administers a
deceased’s estate-by collecting the assets, paying debts and distributing the balance
(residue) of the estate according to the Will or intestacy rules.
An administrator/Administratrix is a person appointed by the Court to administer
the estate of a deceased person where there is no executor or no executor is able
and willing to act.
The law provides for mandatory procedures to be followed when applying for
Letters of Administration of Probate. The include lodging of the petition,
citation/publication, and payment of Court fees. Failure to comply with these
mandatory requirements willrender the grant null and void.
See: Rashid Hassan vs. Mrisho Juma(1998)TLR 134
4.2 Letters of Administration on Intestacy (SS.33-34)-Procedures to
follow before grant.
4.2.1 -Minutes of the family/Clan meeting.
Practice, and not law, requires that before a person petitions for a grant of letters of
administration, he must be appointed by the family/clan of the deceased. Is the
meeting mandatory?
See: Madata Lameck vs. Joseph Makoye Lameck, PC Probate and Administration
Appeal No.1 of 2019, Musoma (Unreported) and Hadija Saidi Matika vs. Awesa
Saidi Matika, PC Civil Appeal No.2 of 2016, Mtwara, (Unreported)
Whether production of the family/clan meeting minutes is mandatory, was
considered by Mlacha, J, in Re Shabani Mussa Mhando, Probate and
Administration Cause No.75 of 2020, Dar es Salaam(Unreported)
In this case, after it became difficult for the parties to convene a family or clan
meeting, the widow of the deceased, Esther Msafiri Mhando, converged with her
relatives and presented the above petition seeking to be appointed administratrix of
her deceased husband’s estate. Her petition had minutes of her family meeting
attached to it.A brother of the deceased, Juma Shabani Mhando, on behalf of 4
children of the deceased born out of wedlock, unsuccessfully presented a caveat,
challenging the competence of the petition. The Court further held:
“There is no statutory requirement or rule on this aspect. It is only a principle
which was developed by the Courts through practice”
Why was the principle developed?
Generally, it was conceived to make the work of the court much easier, since most
matters would have been resolved and settled at that clan/family meeting. Family
meetings are encouraged because:
i) They act as a forum to filter things before going to Court
ii) They tell the court that a person before it has support of the whole
family/clan, thus making it easy for the court, as it will not deal with the
matters that were already been dealt with.
Because of the above, the minutes are therefore important and the courts insist that
they must be attached to the petition.
Much as the minutes are important and needed when filing petitions for
administration or for probate, sometimes, for various reasons, it may be difficult to
convene a family meeting. In those circumstances, it does not mean that a person
without the minutes cannot file a petition for probate or letters of administration.
He can still file the petition, but he must make a statement, in the petition, giving
reasons why he could not get the family/clan minutes.
Reasons may include failure to hold a meeting due to family feuds or
misunderstandings, particularly where the deceased had children with different
women or was a polygamist.
The general rule is that, every petition for letters of administration or probate must
be accompanied by the minutes of the family meeting, except where it has been
impossible to obtain them for reasons beyond the control of the petitioner.
See: Phillipina Wilfred Malisa vs. Robert Wilfred Malisa, Civil Appeal No12
of 2020.Dar es Salaam, (Unreported)
Filing a petition for Letters of Administration (S.56 of Cap.352 and Rule 39 of the
Probate Rules)
4.2.2 Contentious Proceedings.(Lodgment of objection)
When a petition for letters of administration has been filed, the law requires that
the same be cited (published in a conspicuous place) where it can be accessed by
the members of the public, so that anybody with interest can challenge the petition.
The challenge is done through presentation of a caveat.
When the caveat is lodged, the petition is said to be contentious. It turns into a civil
suit, and the parties need to prove what they allege. The Petitioner becomes the
Plaintiff and the Respondent(caveator) becomes the Defendant.
See: Nuru Hussein vs. Abdul Ghani Isamil Hussein (2000) TLR, 217
Ashura M. Masoud vs. Salma Ahmad, PC Civil Appeal No.213 of 2004,
Dar es Salaam,(Unreported)
Rule 82(6) of the Probate Rules provides as follows:
“Where a caveator enters appearance, the proceedings shall be numbered as a suit
and the Registrar shall appoint a date upon which the suit shall be listed before a
judge in Court for such orders as to pleadings and date of the hearing as the judge
may make”
The lifespan of a Caveat is four months after the date upon which it was lodged
(unless sooner withdrawn, but may be renewed. Rule 58(5).
See: Eva Ndimangwa Mrutu vs. Mkunde Peter Kitunga, Civil Case No. 68 of
2017, Dar es Salaam (Unreported)
At the conclusion of the evidence, the court will compose a judgement, appointing
the petitioner, or upholding the caveat. In the latter event, the Court may order the
caveator (who brings the caveat) to be a co-administrator, or seeing that it is
impossible for the petitioner and the caveator to cooperate, it may direct that the
estate be administered by the Administrator General under the provisions of the
Administrator-General (Powers and Functions), Act, Cap.27 R.E 2002.
All stages set out in Rule 82 of the Probate Rules must be complied with, as they
are mandatory.
See: Revenath Eliawony Meena vs. Albert Eliawony Meena & Another , Civil
Revision No.1 of 2017
5.0 TESTATE SUCCESSION
5.1 Appointment of Executor(S.2, Cap.352)
Where a person dies testate, it is assumed that he has appointed his personal
representative(s) in the Will.. The person so named is the “executor”
5.2 Ambulatory
A testator may write a Will, but circumstances may change. He may acquire new
property, may divorce, a heir may turn against him. He thus can change the Will,
by altering/revoking the earlier Will and drafting a new one. Thus a Will is said to
be ambulatory because it can be changed at any time for reasons which the testator
feels are sufficient to warrant the change.

5.3 Codicil
A Codicil is a document attached to the Will, explaining, altering or adding to its
contents.
5.4 Effective after death of Testator
One characteristic of a Will is that it is intended to express the intention of the
testator. Another, is that it takes effect after the testator’s death(posthumous effect).
It is not enough that the testator has died. It must expressed in the Will the
intention(animus testandi) that it is intended to take effect after the testators death,
so as to distinguish gifts inter vivos, and bequeathed property. For example “I grant
and bequeath unto my children A, B, C..if they survive me….”
See: A.G. vs. Jones Backley (1817) 3 Prince 368 and Constantin Hamanya vs.
Elias Kahyoza 1968 HCD n.76
6.0 DUTIES OF PERSONAL REPRESENTATIVES
A personal representative is an active stakeholder in the estate and affairs of a
deceased person. He is not only required to be honest and impartial, but also
diligent, responsible and prudent in the execution of his/ her legally imposed
obligations. The duties include:
6.1 Loyalty (S.103(1))- “Unless there is a special provision to that effect in the
Will, no executor or administrator shall derive any pecuniary benefit
from his office”
6.2 Meet the deceased’s funeral expenses(S.106)
6.3 Duty to administer the estate-identifying all properties of the deceased,
payment of deceased’s debts and other financial obligations, including
outstanding tax liabilities, if any, distributing the estate to the beneficiaries
and preparing an inventory and accounts.
6.4 Duty to report to the Court that granted probate or letters of administration.
After distributing the estate , the executor or administrator files into
Court an inventory(a report of the properties left by the deceased and how it
was distributed) and a statement of accounts(a report of distribution of the
money left by the deceased.
If these are not contested, the process of execution or administration becomes
complete.

7.0 POWERS OF PERSONAL REPRESENTATIVES

To enable the personal representative to carry out the duties of his office smoothly,
he has certain powers under the law. Such powers are as follows:
7.1 Power of Sale (S.101)
The executor/administrator may sell or lease the property of the deceased for
matters connected to his office, as he deems fit.
See: Mohamed Hassan vs. Mayasa Mzee and Mwanahawa Mzee (1994) TLR 225
“Upon grant of letters of administration, the grantee thereof becomes fully
mandated to deal with the estate the best way he can, and essentially, he does not
need consent of each of the heirs to dispose property which is under his custody at
all the time of his administration.”
Where the appointment is revoked after the sale to a third party who purchases
bona fide for value and without notice, such buyer is protected,.
See: Mire Artan Ismail and Zainabu Mzee vs. Sofia Njati, Civil Appeal No.75 of
2008.
“The heirs consented to the sale. Under the circumstances, the administratrix
lawfully sold the house in dispute to the 1st Appellant, Mire Artan Ismail. The
latter was a bona fide purchaser for value without encumbrances….the property
was lawfully transferred to the purchaser…”
7.2 Powers in Respect of Causes of Action and Debts. (S.100)
A personal representative has power to sue or defend all causes of action which
survives the deceased, including the power to recover debts.
7.3 Powers of Expenditure (S.102(a))
A personal representative has mandate to expend such sums as are necessary for
the proper care and management of the estate under his charge.
8.0 LIABILITIES OF PERSONAL REPRESENTATIVES
Liability of the personal representative may arise either under common law or
under equitable liability.

8.1 Common Law Liability

Common law liability arises where the personal representative has wasted the
deceased’s estate, by action or inaction.(Devastation)
See: In Re Tankard (1942) 1 Ch.D. 69
Examples of devastation is where the personal representative:-
(i)Payment of personal liabilities-Re Morgan(1881) 18 Ch.D 93
(ii)Gives away part of the estate- Marsden vs. Regan (1954) 1 WLR 423
(iii)Failing to choose debts until they become statutorily barred-Jones vs. Lewis
(1750) 2 Ves Sen 240
(iv)Pays a debt which is statutorily barred- Midgley vs. Midgley (1893) 3 Ch.D
282.
(v)Where a person named in the Will refuses to apply for probate/letters of
administration-Re Steven (1898)
(vi)Distributes to the heirs before all creditors are paid.-Re Hicks (No.2) (1895) 17
ALT 91
8.2 Equitable Liability -
Inherent powers of the Court (Ss.65, 95 and O.XXIV, C.P.C)
In its inherent powers, the Court may admit and determine an action by an
interested party for guidance and direction on controversial issues.
9.0 RESEALING OF THE GRANT OF PROBATE/LETTERS OF
ADMINISTRATION (Ss.95 and 96,CAP.352)
Where a grant of probate or administration is granted by a Court in any part of the
Commonwealth, same remains ineffective until it is deposited in the High Court
and sealed with the seal of that Court. Thereafter, it shall be of the like force and
effect, and have the same operation in Tanzania as if granted by that Court.
Resealing is an administrative action only, required to facilitate the execution of a
Will or letters of administration granted in a foreign jurisdiction. There cannot be
any alteration in the terms of the grant and no change of the executor or
administrator named in the grant.
RECOMMENDED TEXT BOOKS
Nditi, N.N(Jnr). The Law of Succession and Trusts in Tanzania, 2nd Edn, Juris
Publishers, Dar es Salaam.2020.
Mlacha, L, Lukumay, Z.N. & Kinywafu,D.P. A Case Digest on Probate and
Administration of Estates in Tanzania, Jurist Publishers, 2021
Makaramba, R.V. Guiding Notes on Probate and Administration of Estates, 1st
Edn. Tanganyika Law Society, Dar es Salaam, 2021.
Makaramba, R.V. The Status and Application of Islamic Law in Tanzania East
African Law Review (2), 1991, 277-310
Report on the Law of Succession. Law Reform Commission of Tanzania(LRCT).
Ezer, T. Inheritance Law in Tanzania: The Impoverishment of Widows and
Daughters in Tanzania. Georgetown Journal of Gender and the Law, (2) 2006,599-
662
Rwebangira, M and Mukotogo, C.M(Eds) The Law of Succession in Tanzania.
Maitland, Equity Lectures, Dar es Salaam, 1999.
PART TWO: TRUSTS
10.1. What is a Trust?
An arrangement whereby a person(Trustee), holds property as its nominal owner
for the good of one or more beneficiaries.(C’est que trust)
The Donor/Settlor conveys his property of any sort/description, real or personal, by
means of either special instrument(Trust Deed) or through a Will, to another
person(s) called Trustee(s) with the intention that the Trustee(s) will hold and use
such property for the benefit of himself(The Donor/Settlor) or another
person(beneficiary).
Unlike a company, a Trust has no legal personality, as such, it cannot own property
or enter into contract, sue or be sued. A Trustee has no distinct legal personality in
his representative capacity separate from himself in his personal capacity. He is
thus personally liable to the extent of the whole personal fortune for debts
contracted in managing the \Trust funds, whether contracting in his own name or as
a Trustee.
The four main types of Trusts are:
i)Living Trusts(inter-vivos)
ii)Testamentary Trusts(part of a person’s Will)
iii) Revocable[Living] Trusts-Where provisions can be altered or canceled
depending on the wishes of the Donor/Settlor
iv) Irrevocable Trusts-Cannot be modified or altered after it is created without
the consent of the beneficiaries.
10.2 The Historical Development of Trusts in the Common Law and Equity.
10.3 Sources of Trusts Law
i) The Constitution
ii) The Trustees’ Incorporation Act, Cap.318 and its Rules, GN No.246 of
2002
iii) Probate and Administration of Estates Act, Cap.352 and its Rules, GN.
No.369 of 1963
iv) The Tanganyika Order-in-Council, 1920
v) The Judicature and Application of Laws Act, Cap.358
vi) The Local Customary Law (Declaration) Order, GN No.219, 279, 380 474
of 1963.
vii) The Primary Courts(The Administration of Estates) Rules, GN No.49 of
1971
viii) The Consular Convention Act, 1949
ix) The Administrator Genera(Powers and Functions) Act, Cap.27 R.E 2002
x) The Law of Marriage Act, Cap.29
xi) The Investment Act, Cap.38
10.4 Nature, Function and Importance of Trust Law
10.5 Essentials of a Valid Trust
There a 3 requirements for formation of a valid Trust. These are
Formality, Capacity and Certainty.[FCC]
10.6 Classification of Trusts
(i) Private:-A Trust created by the Donor/Settlor for the benefit of specific
beneficiaries and it can be enforcee at the instance of those
beneficiaries.

(ii) Charitable/Public Trusts:-Are created to benefit the public as a whole

in a number of specified objectives such as relif of poverty, the
advancement of education, the propagation of religion. Due to the nature
of their purpose, they are accorded special priviledgeds by the law, both in
terms of tax liability and the perpetual period.
(iii) Special Purpose Trust:-A new Trust, created out of a private and
charitable Trust. Not for the benefit of of the beneficiaries, but for
a special purpose. E.g. a Trust for the erection of a statue of a
Settlor and maintaining it. Its beneficiaries cannot enforce it.
10.7 The Concept of Trusts under Islamic and Customary Law
10.8 The Waqf
 The Waqf (Arabic for endowment) is a special kind of philanthropic deed
in perpetuity. It involves donating a fixed asset which serves specific
categories of beneficiaries. Known under the sharia law which allows for
the dedication of property in support of religious and charitable objects,
such as the upkeep of mosques and the payment of their officers, the
provision of graveyards and the feeding of the poor. (islamic-
relief.org/waqf) & (www.waqf.go.tz
10.8.1The Waqf Commission (The Waqf and Trust Commission Act, No.2 of
2007)
10.9 Creation of Trusts
10.9.1Void and Voidable Trusts
A Trust may be rendered void by reason of misrepresentation, fraud, undue
influence, which operate on the Settlor.
It may also be void and unenforceable if it infringes public policy, or have an
illegal or immoral objective.
11. Administration of Trusts in Tanzania
11.1 Application for Incorporation of a Trust
11.2 Powers of the Administrator-General
11.3 The Administration of Trusts
11.3.1 Parties in a Trust

11.3.2 The Trust Deed and its Contents

11.3.3 Appointment of Trustees
11.3.4 Retirement and Removal of a Trustee
11.4 Duties, Obligations and Powers of a Trustee
11.4.1 Delegation of Trusteeship
11.4.2 Duty of care, discretion and power
11.4.3 Investment of the Trust property
11.4.4 Payment to beneficiaries
11.4.5 Payment (indemnity) of the Trustees expenses
11.5 Rights of Beneficiaries and Trustees
11.5.1 Rights of the Beneficiaries
i) Right to information
ii) Right to compel due administration
iii) Right to enforce claims
iv) Right to terminate a Trust
12.0 Judiciary and Statutory Control of Trusts
13.0 Conflict of Laws
14.0 Remedies
15.0 The Cy-Pres Doctrine in relation to Charitable Trusts
Cy-Pres is French for “as close as possible” (Cy pres comme possible.). The
doctrine is a concept that gives Courts the power to interpret the terms of a Will,
gift or Charitable Trust. The unused funds flows to the next best beneficiary.
15.0 Setting aside a Trust

ANNEXURE 1

IN THE DISTRICT COURT OF TEMEKE DISTRICT

AT TEMEKE ONE STOP CENTRE
PROBATE AND ADMINISTRATION CAUSE No ……… OF 2023
IN THE MATTER OF THE ESTATE OF THE LATE ALEXANDER JOEY
SAMUEL
 AND
IN THE MATTER OF THE PETITION FOR LETTERS OF
ADMINISTRATION
BY:
SARAH JOEY SAMUEL ………………………………………APPLICANT
--------------------------------------------------------------------------------------------------
PETITION FOR LETTERS OF ADMINISTRATION
(Made under S. 56 of Act No. 352 RE 2019 and Rule 39 of the Probate Rules)
-------------------------------------------------------------------------------------------------
1. I, Ms. SARAH JOEY SAMUEL of P.O.BOX 9070, Dar Es Salaam,
hereby apply to be Administrator of the estate of the late ALEXANDER
JOEY SAMUEL, deceased, of Dar es Salaam who died in Dar es
Salaam, on 1st July, 2018, of natural causes.

2. That the deceased left the following issue surviving her;

(a)Sarah Joey Samuel (Widow)
(b)Saraphina Joey Samuel (Daughter) 34years
(c)Aggery Joey Samuel (Son), 32 years
(d)Agapiti Joey Samuel (Son), 30 years
(e)Salama Joey Samuel (Daughter) 20 years
3. This petition is made by me as the widow of the said ALEXANDER
JOEY SAMUEL, duly appointed by the family to make this application.
4. I believe that the Estate of the deceased, and the assets which is likely to
come into my hands is the following:
4.1 A house No.105 at Mkalama Street, Magomeni Ward, Kinondoni District,
in Dar es Salaam Region.
4.2 A house at Plot No.30/ Block “K”, Kawe Ward, Kinondoni District, Dar
es Salaam
4.3 A house at Plot No.45/1 at Goba, Ubungo District, Dar es Salaam
4.4 A motor Vehicle Make RAV 4, with Reg. No. T011 BUK
4.5 A Semi Trailer Truck with Reg. No. T324 DYZ
5.. The said deceased at the time of his death had a fixed place of abode at
Mbezi Beach, within Kinondoni Municipality, Dar es Salaam Region, and
the property is thus within the jurisdiction of this Honourable Court.
6. The said deceased was a Tanzanian and professed the Christian Religion.
7. That no proceedings for the grant of Probate or Letters of Administration
for the administration of the estate of the said deceased have been
made in this or in any other Court before.
Dated at Dar es Salaam this …………day of ………….20….
_______________
APPLICANT
Presented for filing in the registry of the District Court of Temeke District OneStop

Centre at Temeke this……………. day of ………………….20………...

____________________
REGISTRY OFFICER

DRAWN AND FILED BY

VIPANGA VIKALI LAW ASSOCIATES
MTU NA MTU HOUSE
GONGO LA MBOTO
P.O BOX 0000
+255 770 200 200
([email protected])
DAR ES SALAAM

IN THE DISTRICT COURT OF TEMEKE DISTRICT

AT TEMEKE ONE STOP CENTRE

PROBATE AND ADMINISTRATION CAUSE No ……… OF 2023

 IN THE MATTER OF THE ESTATE OF THE LATE ALEXANDER JOEY
SAMUEL
AND

IN THE MATTER OF THE PETITION FOR LETTERS OF

ADMINISTRATION
BY:

SARAH JOEY SAMUEL …………………………………. APPLICANT

---------------------------------------------------------------------------------------
ADMINISTRATOR’S OATH
(Made Under Section 66, Act. 352 R.E 2019 & Rule 65
---------------------------------------------------------------------------------------
I, SARAH JOEY SAMUEL do hereby make oath and state as follows: -
That I will faithfully administer the Estate of the above named deceased person by
paying first his just debts and then distribute the residue of his estate according to
law as far as the said assets will extend and that I will make and exhibit full and
true inventory when the grant is made to me or within such further time as the
Court may from time to time appoint and also tender a true account of my
Administration to this Court within six months from such date or within such
further time as the Court may, from time to time, appoint.
DATED at DAR ES SALAAM this …………. day of ……………..20………
SWORN at Dar es Salaam before me……………………………Advocate,
by the said SARAH JOEY SAMUEL
who is identified to me by M. J. _____________
LUGAISA, ADVOCATE the latter being DEPONENT
known to me personally this ……………. day
of ……………………….20………….

BEFORE ME:
NAME………………………………………………...
ADDRESS…………………………………………....
SIGNATURE…………………………………………
QUALIFICATION: NOTARY PUBLIC AND COMM.FOR OATHS

Presented for filing in the registry of the District Court of Temeke District One
Stop Centre, at Temeke, this……………. day of ……………..20…………..
________________________
REGISTRY OFFICER
DRAWN AND FILED BY
VIPANGA VIKALI LAW ASSOCIATES
MTU NA MTU HOUSE
GONGO LA MBOTO
P.O BOX 0000
+255 770 200 200
([email protected])
DAR ES SALAAM
IN THE DISTRICT COURT OF TEMEKE DISTRICT
AT TEMEKE ONE STOP CENTRE

PROBATE AND ADMINISTRATION CAUSE No ……… OF 2023

IN THE MATTER OF THE ESTATE OF THE LATE ALEXANDER

JOEY SAMUEL
AND
IN THE MATTER OF THE PETITION FOR LETTERS OF
ADMINISTRATION
BY:

SARAH JOEY SAMUEL…………………………………….APPLICANT

---------------------------------------------------------------------------------------
AFFIDAVIT AS TO DOMICILE
---------------------------------------------------------------------------------------

I, SARAH JOEY SAMUEL P. O. BOX 9070 DAR ES SALAAM DO HEREBY

make OATH and state;
1. That the above-named deceased who died at Kairuki Memorial Hospital, Dar
es Salaam on 1st July, 2018 who I knew and were acquainted with, was a
Tanzanian whereby he resided at Mkalama Street, Magomeni Ward,
Kinondoni District within Dar es Salaam Region during her whole lifetime.
2. That she had her home at Mkalama Street, Magomeni Ward, Kinondoni
District within Dar es Salaam and that at the time of her death she was
domiciled in Tanzania.
3. That what is stated above is true as of my own knowledge.
SWORN at Dar es Salaam before me…………………………Advocate,
by the said SARAH JOEY SAMUEL
who is identified to me by M.J. ____________
LUGAISA, ADVOCATE the latter being DEPONENT
known to me personally this ……………. day
of ……………………… 2023.
BEFORE ME:
NAME………………………………………………...
ADDRESS…………………………………………....
SIGNATURE…………………………………………
QUALIFICATION NOTARY PUBLIC AND COMMISSIONER FOR
OATHS
Presented for filing in the registry of the District Court of Temeke District, One
Stop Centre at Temeke this……………. day of …………….. 20……………...
________________________
REGISTRY OFFICER

DRAWN AND FILED BY

VIPANGA VIKALI LAW ASSOCIATES
MTU NA MTU HOUSE
GONGO LA MBOTO
P.O BOX 0000
+255 770 200 200
([email protected])
DAR ES SALAAM
 Administration Bond with Sureties (P. & A A. Section 67 P. r. 66)
(Form 48)

IN THE DISTRICT COURT OF TEMEKE DISTRICT

AT TEMEKE ONE STOP CENTRE

PROBATE AND ADMINISTRATION CAUSE No ……… OF 2023

IN THE MATTER OF THE ESTATE OF THE LATE ALEXANDER JOEY

SAMUEL
AND
IN THE MATTER OF THE PETITION FOR LETTERS OF
ADMINISTRATION
BY:
SARAH JOEY SAMUEL………..…………………………APPLICANT

We, SAULO WYCLIFF MWAIBABILE and APOLOTI MACLEANS

KWISAKUNKETA. of P.O. BOX 9070 Dar Es Salaam are hereby bound unto the
above estate in the sum of shillings 20,000,000/= (Twenty Million) only, to be paid
to the said estate, or to any Magistrate of the above Court for the time being, for
the payment of which we bind ourselves and each one of us and our heirs,
executors, administrators and assigns.

Dated this ……… day of………………… 20…………...

The condition of this obligation is such that if the named intended administrator of
all and angular the property and credits of ALEXANDER JOEY SAMUEL,
deceased to make a full and true inventory of the said property and credits and
exhibit the same in this court within six months from the date of the grant to him,
or within such further time as the court may from time to time appoint, and do well
and truly administer the said property and credits according to law; and further do
render to this court a true account of the said property and credits within one year
from the date of the said grant or within such further time as the court from time to
time appoint, and all the rest and residue of the said property and credits which
shall be found remaining upon the said administrator’s account shall deliver and
pay unto such person or persons, respectively, as shall be, lawfully entitled to such
residue, then this obligation shall be would and of none effect or else shall remain
in full force and virtue.

Signed and delivered by the said SARAH JOEY SAMUEL

………………………………………………………….
SIGNATURE OF ADMNISTRATRATRIX
In the presence of:
1.SAUL WYCLIFF MWAIBABILEBA…………………………1ST SURETY

2.APOLOTI MACLEANS TWISAKUNKETA……..………….2ND SURETY

Presented for filing in the registry of the District Court of Temeke District One
Stop Centre at Temeke this……………. day of……………20…………...

_______________________
REGISTRY OFFICER
DRAWN AND FILED BY
VIPANGA VIKALI LAW ASSOCIATES
MTU NA MTU HOUSE
GONGO LA MBOTO
P.O BOX 0000
+255 770 200 200
([email protected])
DAR ES SALAAM

IN THE DISTRICT COURT OF TEMEKE DISTRICT

AT TEMEKE ONE STOP CENTRE

PROBATE AND ADMINISTRATION CAUSE No ……… OF 2022

IN THE MATTER OF THE ESTATE OF THE LATE ALEXANDER JOEY

SAMUEL
AND
IN THE MATTER OF THE PETITION FOR LETTERS OF
ADMINISTRATION BY:

SARAH JOEY SAMUEL………………..…………………. APPLICANT

------------------------------------------------------------------------------------------------
CERTIFICATE AS TO SURETY’S FINANCIAL POSITION
[Made under Rule 69]
--------------------------------------------------------------------------------------------------
I, FRANCIS JOHN SANGA of P.O Box 10525, Dar es Salaam, being a
businessman, do hereby certify that I have known SAUL WYCLIFF
MWAIBABILE and APOLOTI MACLEANS TWISAKUNKETA for 5 years past,
and I believe that they are well and truly in a position to meet their obligation
under the bond of shillings 20,000,000/= (Twenty Million) only, executed by them
in the above cause.

Dated at Dar es Salaam this………day of ……………………….20…….

 ………………..………..
SIGNATURE

BEFORE ME…………………………………………………………….
NOTARY PUBLIC & COMMISSIONER FOR OATHS

IN THE DISTRICT COURT OF TEMEKE DISTRICT

AT TEMEKE ONE STOP CENTRE

PROBATE AND ADMINISTRATION CAUSE No ……… OF 2023

IN THE MATTER OF THE ESTATE OF THE LATE ALEXANDER JOEY

SAMUEL
AND
IN THE MATTER OF THE PETITION FOR LETTERS OF
ADMINISTRATION
BY:
SARAH JOEY SAMUEL………………………………….. APPLICANT
==================================================
CONSENT
[Rule 71]
==================================================
We, SAUL WYCLIFF MWAIBABILE AND APOLOTI MACLEANS
TWISAKUNKETA of Dar es Salaam, being the grandchildren of the deceased, as
such, entitled to a share in the estate of the said deceased, HEREBY, of our own
free will, give our consent to SARAH JOEY SAMUEL, applying for and obtaining
grant of letters of administration of the said deceased.
Dated at Dar es Salaam this…………..day of ……………………20……………...
………………………………………….
SAUL WYCLIFF MWAIBABILE

-----------------------------------------------------------
APOLOTI MACLEANS TWISAKUNKETA

BEFORE ME……………………………………….………….
NOTARY PUBLIC AND COMMISSIONER FOR OATHS
IN THE DISTRICT COURT OF TEMEKE DISTRICT
AT TEMEKE ONE STOP CENTRE
PROBATE AND ADMINISTRATION CAUSE No ……… OF 2023

IN THE MATTER OF THE ESTATE OF THE LATE ALEXANDER JOEY

SAMUEL
AND
IN THE MATTER OF THE PETITION FOR LETTERS OF ADMINISTRA
RATION
BY:
SARAH JOEY SAMUEL………………….…………………… APPLICANT

APPOINTMENT OF ADMINISTRATOR
(The Probate and Administration of Estates Act, Cap.352)

On the…………...day of……………………………………...2022, SARAH JOEY

SAMUEL was appointed Administratrix of the estate of the late ALEXANDER
JOEY SAMUEL who died on the 1st of July, 2018, having undertaken well and
faithfully to administer the estate as hereunder mentioned.
DATED at Dar es Salaam this………...day of ………………20………...

___________________________________
SENIOR RESIDENT MAGISTRATE

Besides the documents listed above, the petition would need the following
documents to be attached:
1.Death Certificate or burial permit
2.Minutes of the family/clan meeting at which the petitioner was endorsed
3.National ID of the petitioner
4.Letter identifying the petitioner and the sureties from local government
authorities(Serikali ya Mtaa/Mtendaji wa Kata)